The State Supreme Court in New Jersey decided its gay marriage case today, saying that though there is not a fundamental right of same-sex couples to marry in NJ, a denial of equal benefits to same sex couples would violate the state's equal protection clause. What this status is called, however, is left to the legislature.
First, we will say that a gain in civil rights is a gain in civil rights, so we applaud the New Jersey Court for doing something, unlike our own Court of Appeals. We also think it is great that the 4-3 decision was not 4 in favor of equality and 3 for no equality, rather 4 for full benefits for gay couples, and 3 for full benefits along with the title of marriage, acknowledging that the gays do in fact have that fundamental right to the institution.
But like the concurrence/dissent, we don't really understand what the big deal about the letting the gays use the term "marriage" is. Actually, we don’t really know why the state is involved in the institution of marriage at all. But being that there is a "long history and tradition" of marriage and recognition of it by the state, we are a little disappointed that the majority didn't go so far as to say that we gays DO have a fundamental right to it, or that the equal protection clause of the state constitution requires access to the term “marriage” as well.
What we have a fundamental right to based on liberty is really a social or judicial construction that evolves over time, usually based on how broadly or narrowly you ask the question: in 1987, the U.S. Supreme Court found that there was no fundamental right to “homosexual sodomy” in the U.S. Constitution, but in 2003, the Court said that there was a fundamental right to privacy in the bedroom. Here, the majority asks is there a fundamental right for same-sex couples to marry based on the NJ Constitution (No), while the concurrence/dissent asks if there is a fundamental right or liberty interest in state-sanctioned marriage, which everyone agrees on, and if there are individuals being denied access to that liberty interest (Yes). We like the former question(s) better, but not the current answer.
While full benefits are great, as Chief Judge Poritz said, “What we ‘name’ things matters, language matters.” Since the state has decided to sanction marriages, and people have associations with the word and what it means for their family, the state can’t deny individuals access to marriage based on whom they want to marry.
Overall though, this is a much more interesting debate to have than rights v. no rights. The real question, however, is if this means we now have to hang out in Hoboken.