They Have Only Just Begun To Fight

Legal Analyst Andrew Cohen Says N.J. Same-Sex Marriage Ruling Doesn't Settle Anything

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

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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.

[guysdigdirt]

I do have to agree with you a bit though Bluestar. The Dems will likely win at the polls on election day 2006. But that will be due to all the lies and deciet they have spewn and the mindless masses that believe blindly.

[guysdigdirt]

Bluestar dad, you are a conspiracy fanatic right? CIA killed Kennedy, Bush planted bombs under the levies in Now Orleans and all that...

[guysdigdirt]

Archangelric,
Agreed, but people do not say let%u2019s get Matrimonied. You can have a marriage of a bolt and a nut, but that is not what we are talking about.

If government cannot discriminate against one religion%u2019s view over another, and one religion says Matrimony is between one man and one woman while another church believes a man can marry another man. How can the government not choose one over the other, short of not making a decision?

It is only a word game to those who do not care.

[bluestardad]

Guys you can feel it in the air there is an awakening of the American Electorate and we are the sleeping giant our oppressors have feared all this time. We need to make sure that we take someone to the poles on Election Day. Americans will vote against this administration in so great of numbers that Carl Rove%u2019s election stealing programmers cannot up date the election theft code fast enough to stop the landslide victory.

[archangelric]

this is a problem of words:

Matrimony: a religious union

Marriage: a legal union (i.e. a contract)

we have many different religions with different notions of matrimony.

we have many laws tied up to the legal notion of marriage. The key concept is that the government can NOT discriminate against one religion's view of marriage in favor of another's. Yet that is exactly what all these "defense of Marriage" laws want to do: inflict a definition of marriage as: matrimony defined by SOME judeo-christian sects as opposed to everyone.

I think the New Jersey court was right about getting the state out of the religion business and putting this word game back where it belongs,back on the playgrounds of those immature enough or uneducated enough to know the words without knowing the meanings of those words.Calling it marriage makes it simpler for the legal system, calling it unions makes it necessary to amend all the laws.

we have ALWAYS had 'civil unions' - 'marriages' performed by Justice of Peace, judge, mayor, ship's captains, etc. only we called them marriages without contraversy.

Lets quit these childish word games.

[guysdigdirt]

Why do same *** couples need to be married? Just to show they are legit couples?

Marriage is not required to spend your life together or to have all the same rights marriage offers.

Marriage is NOT just about control of assets.

Same *** marriages alone may not ruin the institution of marriage, but then where do you stop from there? Daughter to Daddy? Lady to horse? Man to multiple children?

Why can't the same *** couples use a term besides marriage? Hunkle sounds good.

You saying the Bible is nonsense reminds me of what my 3 year old says about things he does not like but knows it true too.

Siamese twins happen in nature, does not make it natural.

Mind my own business. Again sounds like my 3 year old when he has no other legit argument to make.

[guysdigdirt]

Bluestar, really? Are you that hung up on true deception and lies the Dems are trying to get you to believe? You really think there was a huge fraud by America to get Bush re-elcted. Please tell me you are not that blind. Does anyone truly believe all the spin doctors you are reciting lies from?

The world we would be living in, if Kerry and his cronies had been elected is too sad to even imagine.

What is it that you think this administration has done that makes you so bitter?

[bluestardad]

CALL TO AMERICAN VOTER
STAY FOCUSED AMERICA IT IS ABOUT TO GET TOUGH. WE HAVE A FEW MORE DAYS OF INTENSE ATTACK ADS, SMOKE SCREENS, DIVISION OF ELECTORATE, DECEPTION, MISREPRESENTATION, AND LIES, TO ENDURE BEFORE WE CAN UNCOVER THE ELECTION FRAUD, RECOUNT THE VOTE, AND THROW THESE CRIMINALS OUT OF OFFICE. THEN WE CAN START HEALING AMERICA.

[guysdigdirt]

I think you are partially right Bluestar. At the same time we should not put our head under a rock and ignore reality. If I had asked you 6 years ago if there would be major terrorist activity on US soil in the next year you would probably have said no, right.

Mexicans coming over the border might not be the terrorist issue, but there is no one there making sure only the Mexicans come over and it is proven Third World people have come over that way.

I am going to bet you do not live in Southern Cal, Arizona or Texas either. Live there, or even visit there and see what the cross border Mexican have done to the area. You would not want your children to live there, it gets ugly!!

[guysdigdirt]

Just because I want marriage to stay between one man and one woman does not mean I am a homophobe or I hate anyone.

You may call it hatred or persecution to want to keep marriage between one man and one woman, yet you sound very hateful and biased against straight people. Why is it so important for you to be the same as straight people? You say there is no difference between being gay or straight. You are wrong. That is like saying there is no difference between men and women.

I have no problems with the gay people having the same rights as the straight people, but you do not need a marriage certificate to get there. You call yourself Gay, call your union something other than marriage. You are not straight, why try to fit into a straight union.

Marriage is between one man and one woman, if you change that it is no longer marriage. If you change the definition of marriage to be any two people then anything is possible from that point. Next three men or two men and three women may want to be married, what grounds will you have to say no to them. Next it will be a man and his daughter or a lady and her horse. How can you say no to that? You may scoff, but that is only as absurd as two men getting married was once thought to be.

If you are gay, that is your business, do not force your lifestyle on me please. I think you and your same *** partner getting married will weaken the meaning of marriage and do not think it should be changed.

[novatom2]

Right on, bluestardad. I couldn't have said it better myself. As an out gay man, I really fear what effect this decision will have on the upcoming elections. It's like adding fuel to the conservative fire. The last thing we need now is another excuse for the rightwing homophobes to push their anti-gay agenda. I'm all for gay marriage myself, but I still believe that it was gay marriage that got Bush re-elected in 2004, a result which still depresses me to this day.

[broken_heart-2009]

For those of the faithful down there in N.J. please be careful. You never know what these men and women in suits/robes are thinking; one day they will allow the homosexual marriages and the next thing you know they%u2019ll pass a law later on saying homosexual couples will not have the rights of marriage. I%u2019m not trying to put you down, hopefuls, but please think of this as you are or going to have same *** marriages.

[bluestardad]

STEP BACK FROM FEAR!
We in America need to pull back from this Frenzy of Fear that has spellbound us since September 11, 2001. I am not saying to let down our guard or not be prudent with our Law enforcement, Intelligence agencies or Military as their constant job is to protect the American people and they do it well. Rationally speaking it is more likely that a person will be killed in a car accident on the way to get milk than killed by a Terrorist in America. Hispanics coming across our border for work are not the terrorist or the enemy. Unfair trade practices initiated by our government are the cause of our jobs leaving and the demise of the Middle Class in America not some Terrorist plot. Political Parties have been using fear in an attempt to maintain power in this country. Americans do the math you are more likely to do yourself bodily harm than to be harmed by a Terrorist. America is a Land of Opportunity and hopes where people live in Freedom. America is not a land were people will be governed by Fear.

Michael C. Boetjer
Captain U. S. Army
Double Blue Star Father

[queeraz]

When you look at the diversity we all have as individuals: hair color, eye color,body shape,height,weight,skin texture, mental abilities,etc., we all fall on a spectrum for each characteristic. same is true for our sexuality. There's 100% straight at one end and 100% homosexual at the other. We all fall somewhere on that spectrum. We were all created from the same "originator" but, some of us feel only straight is recognizable. What closed minds some must have to decide that. Having grown up gay and dealing with the shame society tries to inflect upon people like myself, I see hatred and ignorance fueling these individuals who can't be comfortable about that side of themselves. Gay people are no "different" than straight people. We love just the same and to deny us the equality as individuals and as couples, you only degrade those straight relationships you try so hard to pretend are better. If you have to question LOVE, you don't truly understand it. Thank you New Jersey! Finally a ray of Hope for us all.

[bluestardad]

Please, Pick your battles, the time and place to best push your initiative. It does none of us any good to have the Republicans stay in power because we chose to run out ahead of the situation and get cut off. Keep focused Election win first. no one is for discrimination. do not give your enemy ammunition to use against you. good hunting!