Viewpoint: A Separate But Equal Ruling for Gay Marriage

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The New Jersey court didn’t engage in gimcrack sociology. It stuck to the law and declared that “there is no rational basis for, on the one hand, giving gays and lesbians full civil rights in their status as individuals and, on the other, giving them an incomplete set of rights when they... enter into committed same-sex relationships.” And yet like their New York counterparts, the New Jersey judges threw the decision of what to call these relationships back “to the democratic process.” The New Jersey court continued, rather lyrically: “In searching for the meaning of ‘liberty’... we must resist the temptation of seeing in the majesty of that word only a mirror image of our own strongly felt opinions and beliefs. Under the guise of newly found rights, we must be careful not to impose our personal value system on eight-and-one-half million people, thus bypassing the democratic process as the primary means of effecting social change in this State.”

The contrarian in me appreciates this part of the ruling: as a libertarian, I don’t believe the state has much business approving or disapproving relationships in the first place, so it makes sense that the people, not the courts, should decide what to call the arrangements under which those relationships are codified.

But if the state is going to be in the marriage business, and if we all agree there’s no rational basis for denying marriage rights to gay couples, how could there possibly be a rational basis for creating a separate-but-equal “marriage but not really marriage” statute for gays?

The court says allowing gays to wed is such a profound reconceptualization of marriage that it “must come about through civil dialogue and reasoned discourse, and the considered judgment of the people in whom we place ultimate trust in our republican form of government.” Similarly, in July, fellow contrarians like Kurt Andersen of New York magazine argued that “when courts make certain ‘good’ decisions too far ahead of public opinion and legislative consensus, the result can be hugely problematic, as we’ve seen since Roe v. Wade.”

But Andersen was wrong on the facts: since Roe was decided, support for abortion rights has increased, according to Gallup polls. Opposition to abortion has also intensified, but it’s silly to think that anti-abortion purists would be fine with baby killing as long as a legislature rather than a court had decided to allow it. On the flip side, millions of women didn’t have to resort to self-abortions while they waited for “civil dialogue and reasoned discourse” to arrive in state legislatures.

There’s an even more relevant example: since a court decided in favor of equality for same-sex couples in Massachusetts, support for gay marriage in that state has increased, not decreased, as Andersen’s theory would suggest. And more importantly, thousands of gay couples have been able to enjoy the rights and benefits to which they are entitled.

Obviously judicial activism can go too far. But this isn’t judicial activism; it’s judicial hair-splitting. While the New Jersey court pats itself on the back by saying “Our decision today significantly advances the civil rights of gays and lesbians,” let’s pause for a moment to note what gays and lesbians have not won: actual equality.

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