Yesterday's decision by the New Jersey Supreme Court was wrongly decided, but is a big fat gift for the pro-marriage amendment forces in Wisconsin. The "no" campaign, aware that gay marriage itself is a loser, has thrown all in on the "second sentence"
that bans the recognition of a legal status identical to or substantially similar to marriage. There is no need to ban gay marriage, they say, because Wisconsin does not permit it. The second sentence is also unnecessary and, who knows, courts might interpret it in all sorts of undesirable ways.
This has lead to a kind of surreal campaign in which folks who believe in same sex marriage and who think that the current unavailability of marriage to same sex couples is unjust argue against the amendment by assuring us that what they see as an injustice will continue. I speak at forums and hear attorneys who I know believe that Goodridge, the Massachusetts decision mandating gay marriage in the face of its statutory prohibition, was the Brown v. Board of Education of the new millennium call it an "outlier." The "no" campaign has run a television ad of an empty field telling us, as the crickets chirp away, that if we vote "no," nothing will change. (In yet another Machiavellian twist, this ad also suggests that voting "no" means "no" gay marriage.)
All of this blew up yesterday afternoon. New jersey law expressly prohibited same-sex marriage. No matter. What could "never happen" in Wisconsin happened there.
But there's more. Amendment opponents argue that its one thing to ban gay marriage, but there is no need to ban the creation of a new status that is identical to or substantially similar to marriage. Certainly, that's not required to protect marriage.
New Jersey shows us why it is. The New Jersey legislature had created a "domestic partner" status that was an awful lot like marriage. Having done that, the Court reasoned, what possible basis could it have to decline to make all the incidents of marriage available to same sex couples?
In New Jersey, the distinctive nature of marriage as an institution that is designed to encourage the expression of heterosexual intimacy in a context that is most likely to keep children and their parents together will be lost. In New Jersey, the notion that, where possible and in the great run of cases, children need mothers and fathers can no longer inform public policy. The state has embarked on a social experiment that has been never been tried at any time or in any place and the only people who got to vote were seven judges.