Last week the New Jersey State Supreme Court tackled the same issue that the Massachusetts high court did three years ago: equal rights for gay and heterosexual unions. It came to a conclusion that was both similar and different—and that may be best suited for this complicated moment in our social history.
Like their fellow jurists in Massachusetts, the New Jersey majority concluded that the denial of equal legal rights and civil protections to same-sex couples was unacceptable and unconstitutional. But the court stopped short of endorsing the right to marriage as the only tolerable solution to this problem. Instead, it gave the state Legislature 180 days to legalize either same-sex marriage or civil unions with all the rights and protections of marriage. With most of the state's Democratic leadership, including Governor Jon Corzine, supporting civil unions, it is likely that the Legislature will embrace that option.
Many champions of gay equality have hailed the ruling as a victory. Alan Van Capelle, executive director of Empire State Pride Agenda in New York (where the state's highest court has rejected the claim that there is a constitutional right to equal treatment for gay unions), called it "a wonderful day for same-sex couples and their families in New Jersey." On the other hand, Steven Goldstein, chairman of New Jersey's Garden State Equality, said that those who saw the ruling as a victory were "dead wrong" and vowed to "settle for nothing less than 100 percent marriage equality."
Six years ago, when the Vermont Supreme Court handed down essentially the same opinion as New Jersey's high court has now, gay rights activists almost unanimously hailed the decision. But the Massachusetts Supreme Judicial Court moved the goalposts in 2003 by ruling that nothing short of same-sex marriage would satisfy the demands of equality . Civil unions are now seen by many as, in Goldstein's words, moving gays "from the back of the bus to only the middle of the bus."
Yet there are also plenty of gay men and women who say that as long as they and their partners can have the same legal rights and benefits as straight couples, they don't care what the state calls their unions. The decision of New Jersey's high court is a reminder that there are practical inequalities involved. While New Jersey recognizes domestic partnerships, marriage offers many additional privileges—from survivor benefits for a deceased spouse to the presumption that a biological parent's spouse is the other legal parent of the child.
The word "marriage" carries a symbolic weight for both sides in the debate. Many people who favor full rights for same-sex couples nonetheless feel that society should accord male-female unions a special recognition—a view that may be based on religious faith or on beliefs about psychological and biological differences between the sexes. For many gays, such views amount to a message of inferiority, and equal marriage is seen as the only guarantee of true social acceptance of their relationships as fully equal to those of heterosexuals.
The Massachusetts court stressed such acceptance in its gay marriage ruling. By contrast, the New Jersey court majority emphasized that social acceptance cannot be imposed from the bench , and can be much more effectively gained in legislatures and the court of public opinion.
Some leading proponents of same-sex marriage, such as writer Andrew Sullivan, see the New Jersey court's solution as a wise compromise that will avoid disastrous consequences. The 2003 Massachusetts ruling was followed by a series of constitutional amendments in other states that not only banned same-sex marriage but in many cases prohibited or crippled domestic partnership benefits as well. On the website of the Independent Gay Forum, Stephen H. Miller wrote, "Those with the luxury of living in true-blue states where such amendments aren't conceivable may have wished that the N.J. court had, like in Massachusetts, mandated full marriage equality delivered on a platter, the legislature be damned now. But the rest of us would have paid dearly for such a fiat."
In the past 15 years, American culture has made tremendous strides toward gay acceptance and equality. Yet, even leaving aside outright bigotry, there still remains much cultural conflict and ambivalence on the issue. Legislating civil unions today will not preclude further steps toward equality tomorrow. Using the law to push the culture further than it is ready to go might well lead to a reaction that will push gay citizens back.