They Have Only Just Begun To Fight

Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.



When the New Jersey Supreme Court Wednesday afternoon told state legislators they had just 180 days in which to come up with new laws to fit same-sex couples into the state's marriage scheme, the justices weren't merely giving their political colleagues enough rope to hang themselves. They were triggering a massive stampede, from the judicial branch to the legislative branch, for any and all interested parties in this roiling emotional fight. Just close your eyes and imagine a crowd of tense and nervous people with torches all running away from the courthouse and toward their state representatives.

We are now going to see the same-sex marriage dispute played out in all its glory at the Statehouse in Trenton, N.J. Emboldened but not yet satisfied supporters of same-sex marriage will now push their legislators to take the one step that four of the seven justices were unwilling to take — to have the state recognize as "marriage" the union of same-sex couples. And, indeed, before the sun had set on this momentous day in the life of gays and lesbians in New Jersey, there had already emerged several sponsors of legislation to do just that.

By contrast, opponents of same-sex marriage now have two avenues of recourse open to them in light of the language of the ruling in Lewis and Winslow et al v. Harris, which held that same-sex couples must be afforded the same marital rights as opposite-sex couples even if those rights, and those unions, aren't necessarily called "marriage." Opponents can push the legislature to simply create a whole new set of equal rights and protections for same-sex couples apart from the marriage statutes — the Vermont Paradigm. And, at the same time, they can push their friends at the Statehouse to push for a state constitutional amendment that would essentially nullify the ruling.

There is simply no way to confidently predict how these looming battles are going to play out — or which side ultimately will prevail. On the one hand, the court's one-justice majority seemed willing, even eager, to defer to its legislative cousins. Supreme Court Justice Barry T. Albin wrote that "the Legislature is free to break from the historical traditions that have limited the definition of marriage to heterosexual couples or to frame a civil union style structure, as Vermont and Connecticut have done." We are ordering you to treat same-sex couples and opposite-sex couples equally when it comes to the rights that go along with marriage, the court's majority said, but we aren't going to order you, at least not yet, to actually call the thing "marriage."

"To be clear," Justice Albin wrote, "it is not our role to suggest whether the Legislature should either amend the marriage statutes to include same-sex couples or enact a civil union scheme. Our role here is limited to constitutional adjudication, and therefore we must steer clear of the swift and treacherous currents of social policy when we have no constitutional compass with which to navigate." The "compass" to which he refers isn't just the lack of settled constitutional law on this issue. It's the lack of a factual record supporting whatever justification(s) the state legislature comes up with if it decides not to simply include same-sex couples in the state's marriage scheme.

On the other hand, then, the end result here will depend upon the arguments that ultimately prevail in Trenton and are then subjected to judicial scrutiny. During the case that spawned this ruling, state attorneys argued that "age-old traditions, beliefs, and laws ... have defined the essential nature of marriage to be the union of a man and a woman." Can the "traditions and history" argument, alone and without more, constitute a sufficient legal justification to block same-sex couples from becoming officially married (and divorced)? Or will it take more? In previous same-sex marriage cases, courts and legislators have come up with downright daffy rationale to justify the separate treatment of same-sex and opposite-sex couples.

Will that now happen in Trenton? I have no idea (although I hope not). A good sign came during the argument in this case, when state attorneys did not choose to try to sell the justices a rotting peach by telling them that the institution of marriage must remain exclusive to opposite-sex couples as a statement by the state that procreation is enhanced by it or because the "optimal" child-rearing scenario involves a man and a woman. Although those arguments have gained traction in other states, and before other justices, they are not worthy ones and certainly aren't likely to gain a favorable reception before this set of jurists.

What I am willing to predict, however, is that this dispute could and probably will end up before the New Jersey Supreme Court again within the next few years. A constitutional amendment fight might generate that future case. Or the passage of a statute that freezes same-sex couples out of the marriage game might do it. Justice Albin, stitching together a bare majority, talked grandly of the need to take the next step in this dispute — what to call these unions — to the people so that "the great engine for social change ... the democratic process" can be allowed to work. Maybe it will. Maybe it won't.

By Andrew Cohen

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