A few days ago the NJ Supreme Court stopped short of ordering full marriage rights for same-sex couples. Instead, the court ordered the legislature to institute a system of equal benefits and rights for them, whatever that system may be called. The legislature can choose to join Massachusetts with full marriage or Vermont and Connecticut with civil unions (or some other term that’s the equivalent to marriage in everything but name).
There is one other option for the legislature, though, and this one could be the best bet to full marriage rights for same-sex couples. The court gave the legislature 180 days to act. Given the long history of the New Jersey legislature ignoring direct orders from the state supreme court (see the New Jersey school funding saga for unfortunate examples), it’s possible that the legislature might do nothing in the next 180 days. After all, that’s not that long for a legislature to act.
But, doing nothing might just be the most realistic path to full marriage. There may be a majority of the legislature in favor of full marriage, and if that’s the case, then by all means, they should go that way. But, presuming there isn’t (and the state’s enacting a watered-down domestic partner bill in 2004 indicates there isn’t support for full marriage), legislators in favor of full marriage for same-sex couples should stall by any means possible.
Here’s why: if nothing happens in 180 days, the litigants will go back to court to enforce the decision. The New Jersey courts (possibly the state supreme court if the litigants go back there to re-open the decision) will have no choice but to enter an order requiring the state to marry the couples. Why? Because they have ordered full equality (just not necessarily in name), and if the legislature fails to act, the only way full equality can be achieved is through marriage . . . because no other parallel institution will exist. The court can’t create it, and neither can the state agency that oversees marriage licenses. Only the legislature can create something other than marriage. So, if nothing exists other than marriage, the court will have to order marriage.
Patience (and delay) just might be the biggest virtue here.
–David S. Cohen
Why is marriage the only way that full equality can be achieved? Couldn’t a court just as easily enter an order extending all of the rights and obligations of marriage to all registered domestic partners? Especially in view of the NJ Supreme Court’s obvious reluctance to order “marriage” as a remedy, I don’t see why this alternative would not be the obvious answer. In the end, I’m not sure that delay necessarily results in any type of advantage.
I don’t see how an order from a court, even the state supreme court, could encompass all the rights, benefits, and responsibilities that marriage brings with it. Especially given that the only state parties to the lawsuit are the Department of Human Services and the Department of Health and Senior Services. An order from the court (which would say what? Treat these people as if they were married?) would only affect those parties which would mean that the litigants would then have to go into court to sue all the other state entities to get all the other rights marriage brings with it . . . but only once the need arises. That’s hardly equal to those who just get those rights by virtue of having a license.
Without civil union legislation from the legislature, the only way the court could enforce its decision is to order those defendant state agencies to issue a marriage license because that’s the only thing those two parties have the authority to do to make the litigants completely equal to opposite-sex married couples.
But isn’t that precisely what the court just did (i.e., order all of the rights and benefits of marriage to be extended to same-sex couples)? They merely left open to the legislature to decide what to call this store of benefits and obligations when afforded to a same-sex couple. And, in that vein, wasn’t its order directed at the state legislature—which wasn’t technically a party to the lawsuit? Why would the court suddenly feel constrained to only enter an order binding on the specific state officials before it. Moreover, how could other state officials resist a state supreme court decision ruling that a certain type of treatment (or lack of treatment) violates the state constitution, even if the decision was rendered in a case brought against a different state official?
Things might have been different in a state with no existing regime parallel to marriage, but NJ has one that was already created by the legislature. What would prevent the court from expanding the rights and obligations attendant to that status, since they are obviously constitutionally deficient, if they believe that ordering marriage is outside of their purview?
The court did order the legislature to act, but that’s purely advisory. The legislative leaders have said so themselves, already pronouncing it unlikely anything will get done in 180 days. The only concrete relief that the court can order that will actually give equality, rather than being a hope that some other constitutionally equal government body acts in accordance with the decision, is ordering the actual defendants to give the plaintiffs a marriage license. I don’t see how it can expand domestic partnership with an order.
As for state officials resisting a high profile state supreme court decision, that is a badge of honor in New Jersey, as the school funding and suburban housing decisions are a testament to. Requiring same-sex couples to trust that resistant state officials will comply with an order affecting hundreds of different rights and benefits is not equality in the least bit.