According to the uber conservation site [uel=www.cwfa.org]Concerned Women for America:
Wise people understand that marriage produces positive outcomes based on the nature of what men and women need in order to live in harmony: order, stability, continuity, security, community acceptance and support. All these things are provided by marriage with its wedding ceremony and legal recognition.
That is a great argument FOR gay marriage.
AQA, Bricker, and thus we have the problem with Libertaria all over again in a microcosm. Or monarchy, really. Same thing. Which, I suppose, is why we have the codified variant, for the sure thing, rather than the just thing.
[QUOTE=Bricker]
It’s an interesting opinion, for a couple of reasons.
Firstly, the New Jersey Supreme Court had two claims to consider: that same-sex marriage was a “fundamental” – that is, a Due Process right, and that it was a violation of the state’s Equal Protection Clause to fail to permit it.
The Due Process claim lost:
The decision rests of the state’s Equal protection Clause, and it’s interesting because of how Equal Protection Analysis is evidently done in New Jersey. As long-time readers of the various threads on this subject undoubtedly remember, in federal Equal Protection claims, analysis depends on what classification is created by the legislation. A racial classification is subject to strict scrutiny; a gender-based classification to intermediate scrutiny, and classifications in other areas mostly subject to rational basis review.
New Jersey doesn’t use this sort of analysis at all. It’s irrelevant to NJ EP what type of classification is at issue; instead, they strike a balance between how important the right at issue is compared with the state’s interest in restricting it.
Quoting Sojourner A. v. N.J. Dep’t of Human Servs., 177 N.J. 318, 332 (2003).
I should note that in past discussions about this issue, more than one poster has suggested that this is how Equal Protection claims SHOULD be analyzed.
In any event, this is a Vermont type decision, not a Massachusetts type decision – that is, the legislature can choose to enact a parallel civil union structure, or they may choose to permit same-sex couples to marry.
Long-time readers know that I have generally opposed decisions of this type that come at the behest fo a court decision. However, this particular decision is pretty palatable to me. It does not fly in the face of common sense by announcing that same-sex marriage is “deeply rooted in our nation’s history and traditions” and is therefore a fundamental right. It simply balances the issue against the government’s interest in restricting it, as is the law in New Jersey, and concludes that the government has no reason strong enough to outweigh the personal interest at stake. That’s true.
Now it’s to the legislature, and hopefully they will have the courage to realize that same-sex marriage is not the death-knell of the nation. But frankly, even if they don’t, at least the state’s legal protections of marriage will be available to same-sex couples.
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Surely this question has been asked and answered before so please forgive me …
Is the US Supreme Court allowed to tell the legislature to enact a law to fix a perceived problem? Or is this ability unique to certain states? What if the executive vetoes it and they can’t override it?
Why aren’t the plaintiffs sueing (class action or otherwise) all the insurance companies or any other entity that discriminates to get them to treat committed couples the same? If there are laws that are unconstitutional because they discriminate why aren’t they just overturned?
[QUOTE=Bricker]
In any event, this is a Vermont type decision, not a Massachusetts type decision – that is, the legislature can choose to enact a parallel civil union structure, or they may choose to permit same-sex couples to marry.
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Other than semantics, what is the difference?
To no one’s surprise, I come down with the concur/dissenters, who found it "Of course there is no history or tradition including same-sex couples; if there were, there would have been no need to bring this case to the courts. As Judge Collester points out in his dissent below, “[t]he argument is circular: plaintiffs cannot marry because by definition they cannot marry.”
“It is no answer that samesex couples can be excluded from marriage because ‘marriage,’ by definition, does not include them. In the end, ‘an argument that marriage is heterosexual because it ‘just is’ amounts to circular reasoning.’”
“Most telling, the Court did not frame the issue as a right to interracial marriage but, simply, as a right to marry sought by individuals who had traditionally been denied that right. Loving teaches that the fundamental right to marry no more can be limited to same-race couples than it can be limited to those who choose a committed relationship with persons of the opposite sex. By imposing that limitation on same-sex couples, the majority denies them access to one of
our most cherished institutions simply because they are homosexuals.”
So the government’s interest is rational, just not legitimate?
I believe the proper legal phrase is “True 'dat”. I think it’s Latin.
Yippee!!!
[QUOTE=Hamlet]
Other than semantics, what is the difference?
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Perhaps it is merely semantics, but I doubt it. I had always been a supporter of civil unions, but I had previous to this board been an opponent of same-sex marriage, arguing that the difference was mere semantics. Extended discussion here convinced me that the issue was more than semantic, and that the proper course was to call the same-sex union established under law “marriage” just as its opposite-sex counterpart is.
So the difference here is important: Massachusetts had no choice but to offer marriage to same-sex couples. New Jersey legislators are faced with two real options: marriage for same-sex couples, or a parallel civil union structure.
Let the record reflect that my shock is minimal here. 
No - the government’s interest is rational AND legitimate – it just doesn’t outweigh the interests of same-sex couples wishing to be married. Under a federal rational basis review, there is no weighing of the interests – you simply examine the legislature’s action to see if it has a rational basis. Under the NJ approach, you apparently weigh the competing interests. Under that approach, obviously SSM wins.
[QUOTE=Bricker]
Perhaps it is merely semantics, but I doubt it. I had always been a supporter of civil unions, but I had previous to this board been an opponent of same-sex marriage, arguing that the difference was mere semantics. Extended discussion here convinced me that the issue was more than semantic, and that the proper course was to call the same-sex union established under law “marriage” just as its opposite-sex counterpart is.
So the difference here is important: Massachusetts had no choice but to offer marriage to same-sex couples. New Jersey legislators are faced with two real options: marriage for same-sex couples, or a parallel civil union structure.
[/quote]
And here is my thinking on the matter: As long as the “parallel civil union structure” gives all the rights and benefits that the government gives to married couples, then it is a “civil marriage”. The entire debate over same sex marriage and civil unions is one of simple semantics. Kudos goes to the NJ Supreme Court for being more aware of the public perception and willingness to accept civil unions. They went out of their way to kowtow to people who, in my estimation, are hung up on a word. The Mass. court did not do that, but rather went into a discussion of what a marriage is as it relates to the government, which, for all intents and purposes, is a civil union. If you would take the time, please explain to me, again, what the difference between a same sex civil union and a marriage when it relates to the government. 'Cause I still don’t get it. All I see is a bunch of people who are afraid of using the word “marriage” for homosexuals.
What I found interesting about the oral argument at least was the interests the state advanced. There wasn’t any arguments about protecting/enhancing childrearing or procreation, or anything like that. The only stated interest of the state was in preserving the institution of marriage as it had always been. So New Jersey didn’t seem to really advance the arguments that won out in New York and Washington state. It just said “New Jersey has an interest in the preservation of state institutions” or some such thing.
And indeed, there is a sizable group of folks who are opposed to SSM on exactly those grounds. They have no problem with giving equal rights, but the term “marriage” occupies sacred ground in their minds. It’s not as trivial as you might think.
[QUOTE=Hamlet]
And here is my thinking on the matter: As long as the “parallel civil union structure” gives all the rights and benefits that the government gives to married couples, then it is a “civil marriage”. The entire debate over same sex marriage and civil unions is one of simple semantics. Kudos goes to the NJ Supreme Court for being more aware of the public perception and willingness to accept civil unions. They went out of their way to kowtow to people who, in my estimation, are hung up on a word. The Mass. court did not do that, but rather went into a discussion of what a marriage is as it relates to the government, which, for all intents and purposes, is a civil union. If you would take the time, please explain to me, again, what the difference between a same sex civil union and a marriage when it relates to the government. 'Cause I still don’t get it. All I see is a bunch of people who are afraid of using the word “marriage” for homosexuals.
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Hamlet, I started out with the position you are now espousing, and it took a six- or seven-page thread to bring me around. Others can, I think, be more effective advocates of the position than I am even now…
…but I’ll give it a shot.
The word “marriage” has enormous social, cultural, and political implications wholly aside from the mere sterile consideration of what it means in the government context. For the government to withhold the word “marriage” when discussing same-sex recognized unions and use it when discussing opposite-sex recognized unions is to give the former a ‘second-class’ status. Even though you cannot point to a specific legal right or remedy that would be lacking from the civil union, the mere fact that the government, the entity that represents us all, society as a whole, chooses to call the two types of unions different names suggests that one is different from the other.
And there is no good reason for it. The word “marriage” is used in all sorts of contexts: the merger of two companies might be described as a marriage of the two sets of resources and core competencies, for example. If it is fairly used in such a general context, representing the union of two entities, why is it not correctly used to represent a government-sanctioned same-sex union?
That’s my take on it. There are others here that carried the banner far more eloquently than I.
[QUOTE=aclubs]
And indeed, there is a sizable group of folks who are opposed to SSM on exactly those grounds. They have no problem with giving equal rights, but the term “marriage” occupies sacred ground in their minds. It’s not as trivial as you might think.
[/QUOTE]
I’m sure it’s not trivial to those who get hung up on the word marriage, but, as far as legal arguments go, it means nothing. As long as the benefits from a state-recognized “marriage” are the same for homosexuals as they are for heterosexuals, it really doesn’t matter what you call it, whether it is civil unions, marriage, civil marriage, or turkey pot pie.
But in the realm of convincing the masses, I agree that it is better to call it a civil union.
Really? The MA Court stated it pretty eloquently:
But this ruling does fix 99% of the problem. The name fix can come later, if it has to come at all.
As to the Court’s “ordering the legislature to act”, I don’t see it - they’re given a time window to do so bevore the court order banning discrimination takes effect, as in MA, but apparently they, like the MA legislature, can simply do nothing. I don’t see a separation of powers issue there, people.
[QUOTE=Bricker]
Hamlet, I started out with the position you are now espousing, and it took a six- or seven-page thread to bring me around. Others can, I think, be more effective advocates of the position than I am even now…
…but I’ll give it a shot.
The word “marriage” has enormous social, cultural, and political implications wholly aside from the mere sterile consideration of what it means in the government context. For the government to withhold the word “marriage” when discussing same-sex recognized unions and use it when discussing opposite-sex recognized unions is to give the former a ‘second-class’ status. Even though you cannot point to a specific legal right or remedy that would be lacking from the civil union, the mere fact that the government, the entity that represents us all, society as a whole, chooses to call the two types of unions different names suggests that one is different from the other.
And there is no good reason for it. The word “marriage” is used in all sorts of contexts: the merger of two companies might be described as a marriage of the two sets of resources and core competencies, for example. If it is fairly used in such a general context, representing the union of two entities, why is it not correctly used to represent a government-sanctioned same-sex union?
That’s my take on it. There are others here that carried the banner far more eloquently than I.
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I think the concur/dissent in the New Jersey case does a good job of explaining it also:
"In their presentation to the Court, they speak of the deep and symbolic significance to them of the institution of marriage. They ask to participate, not simply in the tangible benefits that civil marriage provides – although certainly
those benefits are of enormous importance – but in the intangible benefits that flow from being civilly married. …
By those individual and personal statements, plaintiffs express a deep yearning for inclusion, for participation, for the right to marry in the deepest sense of that word. When we say that the Legislature cannot deny the tangible benefits of marriage to same-sex couples, but then suggest that “a separate statutory scheme, which uses a title other than marriage,” is presumptively constitutional, ante at ___ (slip op. at 7), we demean plaintiffs’ claim. What we “name” things matters, language matters.
We must not underestimate the power of language. Labels set people apart as surely as physical separation on a bus or in school facilities. Labels are used to perpetuate prejudice about differences that, in this case, are embedded in the law. By excluding same-sex couples from civil marriage, the State declares that it is legitimate to differentiate between their commitments and the commitments of heterosexual couples. Ultimately, the message is that what same-sex couples have is not as important or as significant as “real” marriage, that such lesser relationships cannot have the name of marriage."
I think it is the same idea you are expressing also, and I agree with it. What chaps my hide is, in an effort to make their ruling more palatable to the populace, the majority allowed for civil unions instead of “marriage.” There is, to my eye, no LEGAL difference between the two, but one of deep social meaning and acceptance. I guess that it is that deep social meaning and acceptance that some people so want to deny homosexual couples, even if they have to give them civil rights.
[QUOTE=Hamlet]
I think it is the same idea you are expressing also, and I agree with it. What chaps my hide is, in an effort to make their ruling more palatable to the populace, the majority allowed for civil unions instead of “marriage.” There is, to my eye, no LEGAL difference between the two, but one of deep social meaning and acceptance. I guess that it is that deep social meaning and acceptance that some people so want to deny homosexual couples, even if they have to give them civil rights.
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But the court should not be curing anything but legal issues – should it? Isn’t it for the legislature, and NOT the courts, to cure a purely social meaning and acceptance problem?
Why do you think equal protection isn’t a legal issue?
[QUOTE=Bricker]
It does not fly in the face of common sense by announcing that same-sex marriage is “deeply rooted in our nation’s history and traditions” and is therefore a fundamental right.
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But that’s not how one decides whether a right is fundamental or not. You might want to read the decision that this was originally garnered from again.
[QUOTE=DMC]
But that’s not how one decides whether a right is fundamental or not. You might want to read the decision that this was originally garnered from again.
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???
That’s the language from the New Jersey opinion. What are you referring to?
[QUOTE=Bricker]
That’s the language from the New Jersey opinion. What are you referring to?
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I’m referring to the original place where this showed up, which is cited as the source in subsequent uses, Moore v East Cleveland. I realize that it’s been repeated in other places, such as Bowers v Hardwick, but I’m of the opinion that they misinterpreted it.
The original text was:
[QUOTE=Moore v East Cleveland]
Our decisions establish that the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation’s history and tradition.
[/QUOTE]
I’m fine with reading that as saying that the sanctity of the family is a fundamental right, because it is deeply rooted in tradition, etc. I don’t agree that it says that being deeply rooted in tradition is a requirement for a right to be fundamental, no matter how Griswold, and everyone else seems to read it.
Discrete and insular minorities, baby. Representation reinforcement all the way.
Referring to the justices in the case obviously, and not some justice named Griswald (or Griswold), who presides over the Wally World jurisdiction.
[QUOTE=DMC]
I’m referring to the original place where this showed up, which is cited as the source in subsequent uses, Moore v East Cleveland. I realize that it’s been repeated in other places, such as Bowers v Hardwick, but I’m of the opinion that they misinterpreted it.
The original text was:I’m fine with reading that as saying that the sanctity of the family is a fundamental right, because it is deeply rooted in tradition, etc. I don’t agree that it says that being deeply rooted in tradition is a requirement for a right to be fundamental, no matter how Griswold, and everyone else seems to read it.
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Even if they did, the subsequent “misinterpretation” has now been enshrined into substantive law. It’s a correct statement of law to say that fundamental rights are those deeply rooted in our nation’s history and traditions, or implicit in the concept of ordered liberty.