Separate is still not equal

by: Juan Melli

Wed Dec 10, 2008 at 11:35:07 AM EST

It's actually come to this: A panel convened by the legislature of the State of New Jersey has concluded that discrimination is not good. Maybe someday we can look back and laugh, but for now, it's a sad and necessary step toward progress.

The 13-member Civil Union Review Commission tasked with "evaluating the implementation, operation and effectiveness" of the civil union law passed nearly two years ago released its final report today unanimously recommending that "The Legislature and Governor amend the law to allow same-sex couples to marry" and that it be "enacted expeditiously because any delay in marriage equality will harm all the people of New Jersey."

The examples of injustice in the 80-page report are damning, but they shouldn't surprise those who remember our dark, segregated past. For nearly a century, blacks were entitled to the same access to public services such as water fountains and schools, but under "separate but equal" facilities that were ruled constitutional by the Supreme Court in Plessy v. Ferguson (1896). The colored fountain has the same water as the white one, was the argument, so what's the problem?

In her dissenting opinion in New Jersey's Supreme Court case brought by gay couples challenging for the right to marry, then-Chief Justice Deborah T. Poritz wrote: "What we name things matters, language matters...Labels set people apart surely as physical separation on a bus or in school facilities...By excluding same-sex couples from civil marriage, the State declares that it is legitimate to differentiate between their commitments and the commitments of heterosexual couples. Ultimately the message is that what same-sex couples have is not as important or as significant as 'real' marriage, that such lesser relationships cannot have the name of marriage."

Likewise, the report describes civil union couples as having "second-class status," and one written statement to the commission referred to civil unions as "the back of the legal relationship bus." So will the report change any minds? If it does, probably only at the margins. Anyone who needs a written report to understand fundamental American values like justice and equality probably won't be swayed anyway.

And then there are politicians, whose actions are often only loosely correlated with logic or even their own set of values.

In the short term, this report might provide enough cover to get a few more sponsors on the "Civil Marriage and Religious Protection Act," which calls for full marriage equality. It might also serve as supporting evidence in a hypothetical court case challenging the current law; say, if a married couple from Massachusetts moved to New Jersey and found that their marriage was magically transformed into a civil union. It could also push those who are teetering on the edge of the issue, like Jon Corzine, who supported marriage equality while running for governor in 2005, later said he only supported civil unions, and most recently said he has "significant concerns" about civil unions actually providing equal rights.

Regardless, the legislation is unlikely to be considered at least until the next lame duck session, and conventional wisdom among head-counters is that there are enough votes to pass the bill in the Assembly, but not yet in the Senate.

Corzine didn't want to bring up the issue this year for fear that a fired up right wing would hurt Democrats' chances in the presidential election. Despite the narrow passage of the well-financed, anti-gay Proposition 8 in California, Barack Obama carried the state by 24 points -- a remarkable 14 point improvement over John Kerry's margin in 2004. So while the president-elect's nation-wide coalition included the so-called "Racists for Obama", he also received a large number of votes in California thanks to the "Homophobes for Obama." Unless you believe the electorate is cleanly bifurcated, neither result should be surprising.

Nor should the result have come as a surprise to political observers in New Jersey. A recent Zogby poll commissioned by Garden State Equality found that only 21 percent of voters think that legislators who vote to give same-sex couples the right to marry would not be re-elected. But don't expect that to stop the Chicken Littles from predicting the vault of heaven to collapse and men to rain down upon us all.

Despite all these obstacles, equality will eventually come to New Jersey. Assembly Speaker Joe Roberts, perhaps less eloquently and more succinctly paraphrasing Martin Luther King, Jr., who famously said that "the arc of the moral universe is long, but it bends towards justice," repeatedly points out that marriage equality is a matter of "when, not if." What's less clear is whether the legislature will allow same-sex couples to sit in the front of the "legal relationship bus" or whether it will take the courts -- as in Brown v. Board of Education (1954) -- to clean up the mess. Either way, the sky won't fall, so you can leave those umbrellas at home.