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Thursday, October 26, 2006

As Promised…

posted by on October 26 at 18:24 PM

… a very smart discussion of the NJ gay marriage decision from Dale Carpenter. Some money quotes:

New Jersey does not follow what the court calls the “rigid” three-tiered scrutiny of the federal equal protection cases: “strict scrutiny” for race classifications, “intermediate” scrutiny for sex/gender classifications, and “rational basis” for almost every other kind of classification. [ … ] Instead, the state courts have adopted a “flexible” test that calls for distinctions between “similarly situated people” to be justified by “a substantial relationship to a legitimate governmental purpose.”

[ … ]

This discussion of a gap [between the rights accorded under NJ’s domestic partnership system and full marriage] served two equal-protection functions in the opinion: it established the importance of the issue of rights already given to gay couples and highlighted the importance of the remaining rights denied them. (Unlike other courts addressing the issue, the court also emphasized the hardships that denial of the remaining rights places on children being raised by gay couples. Hardly any court before this one has underscored that point.)

All of this put pressure on the state to come up with a reason for the remaining gap. Here, the case differs in an important respect from other state court cases:

“The state does not argue that limiting marriage to the union of a man and a woman is needed to encourage procreation or to create the optimal living environment for children. Other than sustaining the traditional definition of marriage, which is not implicated in this discussion, the State has not articulated any legitimate public need for depriving same-sex couples of the host of benefits and privileges catalogued [earlier in the opinion].”

Basically, the NJ courts have been nice to gays and lesbians in the past, the NJ legislature has been even nicer, and now the state’s lawyers have to be nicest. They can’t argue that not having gay marriage is for the good of the children, or the legislature might have thought that once it was maybe for the good of the children, or any other mindbending half-justification permitted under the “rational basis” test.

All of which leads to some darker news:

Seen in this light, the New Jersey court’s quotation from Justice Brandeis’ famous dissenting opinion praising the states as “laboratories” to “try novel social and economic experiments” is a bit ironic. The New Jersey court now holds that once the state substantially experiments with gay equality it must go all the way, ending the experiment.

While the result in this case is surely a good one for gay families, it may chill experiments in other states where legislators might fear that they cannot move incrementally toward equality for gay couples without surrendering the judicial basis for any remaining distinctions. I doubt that’s really a great danger in most states, where courts tend to be less aggressive than New Jersey’s and where the standard rational-basis test should allow legislatures to proceed incrementally, but this opinion will surely be cited as a reason not to grant any rights to gay couples.

So NJ’s reasoning makes much more sense than the Andersen decisionand it’s a 180 degree turnaround from the Washington court, which held that the passage of Ed Murray’s gay civil rights bill was a reason not to give marriage rights to gaysbut it’s still, ultimately, bad for the gays. Awesome. I told you it might be hard to swallow.

On the other hand, Menendez and Kean are pretty much unaffected, claims the New York Observer’s political blog.

More from smartypants Dale Carpenter here.

RSS icon Comments


The Washington Supreme Court shouldn't have even been addressing rational basis. Justice Madsen's contorted logic put gay couples in the "not discriminated against" camp (ie, Murray's gay civil rights bill + gay elected officials mean that gays arene't discriminated against. Hmm, I guess that means blacks aren't discriminated gainst now, eh?). The Court should've used a higher standard. But I don't think our Court could say "hey Legislature, do something within 180 days." It's either constitutional or it's not.

Posted by him | October 26, 2006 8:16 PM

mr carpender is a gay libertarian republican type - has been tryinfg to crash gay issues for years

funny you people are citing him as an expert - he hates gay progressive stuff with a passion, much more than he dislikes homophobia

Posted by Jack | October 26, 2006 9:10 PM

Actually, Carpenter on the record supporting gay marriage; he just prefers that it be instituted through the legislature. (An incremental approach was the most popular option in the gay community until about five years ago, if you'll recall.) He's probably libertarian, possibly Republican, perhaps gay—but he's also wicked smart.

Posted by annie | October 27, 2006 11:27 AM

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