The New Jersey State Supreme Court ruled that same-gender couples are entitled to the same benefits and privileges enjoyed by married couples. I read the entire 90-page opinion, the first time in my life that I ever read a court decision (PDF file of court opinion available here). It was fascinating, and surprisingly well-written.
The Court stopped short of requiring the State to grant marriage licenses to same-gender couples, leaving it up to the Legislature to either expand the marriage statue or to create a civil union law that would grant identical rights to same-gender couples seeking legal recognition of their relationship. The Court’s hesitation to grant the right to marry to same-gender couples recognizes that there is a widely accepted, traditional belief that marriage is between a man and a woman (it also appropriately recognizes the separation of powers in the State of New Jersey, allowing the popularly-elected Legislature to decide how to grant these rights to same-gender couples, but I digress). It looks like New Jersey will go the route of civil unions, opting to reserve the word "marriage" for legally-recognized dual-gender relationships only.
But that begs a question: Is there a State interest in protecting the traditional definition of marriage as a union between a man and a woman? Or, described another way, is there a State interest in not allowing same-gender couples to enjoy the legal, economic and social benefits of marriage? I do not see why the State would want to restrict same-gender couples from the benefits of marriage or the title "marriage" simply because they are of the same gender. Such restrictions sounds like discrimination to me.
So why limit the legal definition of marriage to a union of a man and a women? Tradition. But maintenance of a social tradition, when the health and well-being of the State or its citizens are not served by that tradition, is not a State interest. There is a State interest in recognizing and granting unique rights and benefits to couples in committed relationships (hence marriage). However, there is no State interest in limiting such legally-recognized relationships to heterosexual couples.
The court was careful to describe civil marriage and the State’s interest, rarely appealing to religion or sacred beliefs about marriage. The Appellate Court decision, written by Judge Skillman and overturned by this Supreme Court decision, inappropriately noted that "our leading religions view marriage as a union of men and women recognized by God" (the Appellate opinion is quoted on page 15 of Supreme Court opinion). Why inject religion into a legal decision, especially without any accounting of the degree to which the people of the State are religious or generally adhere to the teachings of their religion?
But mixing religion and social policy are nothing new. Friday’s Philadelphia Inquirer reports that President Bush insists that marriage is a sacred institution (comments at end of article). I would encourage the President to leave it to religious institutions to determine what is sacred according to their religious traditions, and to the Courts to determine what is legal according to our nation’s legal traditions. The State does not have a compelling interest in conferring sacred status to any institution, place or event, and its leaders should avoid using such language.
Yet, the New Jersey Supreme Court did step ever-so-slightly into religious waters. On page 62 of the decision, after deciding that the Legislature will determine the manner in which same-gender relationships are recognized, the decision reads: "However the Legislature may act, same-sex couples will be free to call their relationships by the name they choose and to sanctify their relationships in religious ceremonies in houses of worship." As an avid advocate of the separation of Church and State, I am uncomfortable with the casual way in which the Court suggests that same-gender couples may go to houses of worship to sanctify their relationships without any reference to the autonomy of religious institutions to decide the appropriateness of blessing such relationships in the first place. In a legal decision regarding civil marriage it is irresponsible for the Court to suggest that any change in the marriage or civil union statutes would give same-gender couples access to houses of worship to sanctify their relationships as a result of the legal process. Even though this sentence refers to the freedom couples have to speak about and celebrate their relationships (freedom to call their relationships marriage even if they are not legally "marriage"; freedom to sanctify their relationships even if the state does not consider them to be "married"), I find this reference to be a slight but unnecessary intrusion on the autonomy of religious institutions. The Court does not need to waste ink suggesting what religious intuitions may or may not do in response to this decision.
Religion’s role in blessing committed relationships is distinct from the State’s role of regulating the benefits and legal definitions of such relationships. But the line is blurred, thanks to both parties. The Church has an unhealthy marriage with the State when it comes to marriage, and perhaps it is time for the Church to seek a divorce, to pull back from acting as officials of the State when signing off on marriage certificates and presiding at a legal ceremony in the midst of the Church’s sacred liturgy. Perhaps the Church would be better off if it encouraged couples to get married by a Justice of the Peace to be legally wed, and then inviting these couples to come to Church to ask for and celebrate God’s blessings on their life together. Marriage is an estate that exists in both Kingdoms – the Kingdom of Earth and the Kingdom of Heaven – and perhaps our ceremonies should reflect as much.
The Lutheran Zephyr 
Interestingly, when I read the court’s decision this week, I understood the statement “However the Legislature may act, same-sex couples will be free to call their relationships by the name they choose and to sanctify their relationships in religious ceremonies in houses of worship” to mean that the court wanted to emphasize the distinction between civil and sacramental (or religious) marriage.
In conversation with my brother-in-law some time ago, he thought that efforts to legalize same-sex marriage would have the effect of compelling churches to comply. Once he understood that the issue before the courts (and now the legislature) is strictly a matter of civil marriage and law, he expressed full support for the effort. I read the court’s comments from that perspective.
You are probably right, Johann. After my rant I even acknowledge that perhaps the Court is not trying to tell religious institutions what to do (“Even though this sentence refers to . . .”). But I am very sensitive to any judicial or legislative action that could be miscontrued to confirm your brother-in-law’s fears that the courts are going to require churches to bless certain relationships. Perhaps they were just a little bit sloppy, or perhaps I am just a little too sensitive on this matter. I applaud the Court’s decision, and would encourage the Church to separate itself from the legal workings of civil marriage. Let Ceaser to Ceaser’s thing, and the Church do the Church’s thing . . .
Thanks for reading.
Very nice analysis. It seems as though the court was really working hard to walk a fine line of doing what is right, without alienating too many citizens.
Of course, there is always someone to spin the courts actions in a positive or negative way. I see that our president has already started using the term “activist court” in his campaigning for congressional members. Boo!
I also like that the court did not legislate anything, but gave the right responsibilty to the right branch of government.
Great post. I was very active in the Lambda Legal Defense Fund (fighting for marriage rights for homosexual couples) in law school and am still passionate about the subject!
Since you asked, I believe that the articulated state interest in defining marriage as between a man and a woman is purportedly to preserve procreation. Since only a man and a woman can procreate a child, and the state has an interest in making sure that children are born within marriage, it follows (to some people) that marriage should be narrowly defined between a man and woman. This leads to a discussion of whether the principal purpose of marriage is procreation… what about older couples? Couples who don’t want/can’t have children? Etc. Don’t get me started. 😐
Thanks for all of the great thoughts already shared. I’ll add one more of my own. If I had my choice, as Pastor I would prefer to get out of the marriage business completely. Several reasons – top- probably the insincere couples who come to the church for a wedding – who say what they think you want to hear during pre-marriage counseling, and have no intention of participating in the life of a congregation – in Christian Worship or Service or Mission. I know this is cynical – and I have only been in ministry 10 years. But personally, I would rather have legal marriage in the hands of the judicial branch (judges and justices of the peace) and then as pastor I could be more discerning and even instructive during counseling and then have wonderful Christian Blessings for couples who are already married. Supposing each church could then decide if they would bless man/woman or same gender or both. Sounds kind of crude – but thats my thought.