Thursday, October 26, 2006

Exhibit A in the Case for Yes

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.


Anonymous said...

You shouldn't be posting so early in the morning. Perhaps you need some coffee. You mention the gay marriage in Mass. in one paragraph and then say NJ is a grand experiment that has never been tried in another. Well which is it?

And what kind of ivory tower crap is this irrelevancy about kids being better off with mothers and fathers? What does that even mean? Yes, people in good homes are better off than people in bad homes, but to define that as a function of the manner in which the people in charge fuck is pretty asinine. Is a shitty marriage better than a happy unmarried couple at raising kids? Stop saying it until you can prove it.

And by the way, as a professor, perhaps you could point out that the NJ court actually did not allow gay marriage. Right! So your point is that equal rights for gays is bad. Some left winger you are.

RepSoccerMom said...

Mr. Esenberg, I find it astonishing that someone from the legal field would insist on placing social policy and worse yet, his own religious preference into our State Constitution which is a sacred text as well. I pity you that your own marriage is so threatened by the fact that two women love each other or two men love each other. There are so many other causes worth fighting for - health insurance, jobs, education - why are you so focused on something that will cause pain for so many? Fear, Mr. Esenberg. My God told me to fear not. God made ALL people in God's image and I don't recall God saying that other people had the right to judge. Shame on you.

Anonymous said...

The problem with your argument is that--once again-- you rely on incorrect information and a poor analysis to write a knee-jerk reaction.

The NJ Supreme Court simply told the legislature there that it had to start protecting families equally. You have repeatedly said that you think families deserve these protections. The NJ decision explicitly did NOT push gay marriage. In fact, the "dissent" argues that it should have ordered marriage, as nothing less is equal.

Despite the clear text of the decision, your buddy Mark Gundrum sends out utter lies, stating that NJ courts just forced gay marriage down the throats of the voters. and you light-weight analysis does little better. If you must rely on outright lies to support your argument, perhaps you don't really believe in your argument?

Why do you care one iota if Wisconsin grants similar protections to committed couples and their children, but thorugh domestic partnerships or civil unions? Seriously, why? All we are asking for is a status that helps keeps our families and our children together. In Wisconsin, all we are asking for is to keep ugly and downright shameful discrimination out of our constitution.

Last time I looked, Massachusetts had not fallen into the ocean, imploded, or reduced to rubble by the hundredds of thousands of heterosexual marriages dissolving. Actually, I believe the marriage rate has increase dand divorce decreased. Imagine that.

John McAdams said...

I think the tone and substance of the previous comments makes clear where intolerance lies in this debate.

No surprise.

Rick Esenberg said...

I don't drink coffee. The grand experiment is same sex marriage. It has begun in Massachusetts (and,essentially, in Vermont) and is apparently continuing in New Jersey. How it will all end up will depend on how widespread it becomes. Evaluating how it turns out will take years.

The social science evidence is fairly clear that, on the whole, kids do best in an intact and low conflict marriage between their own father and mother. The "happiness" of cohabiting or stepparents does not matter.

That's not to say all married couples do a wonderful job and that all unmarried couples or stepfamilies are disasters, just that, in the run of cases, doing what we can to place childbearing and rearing within the context of a marriage between a mother and father will do the most good for the most number.

And I did point out what the NJ court did. It said that the legislature had to extend all the incidents of marriage to same-sex couples although maybe it could call it by another name.

As far as putting my religious preferences in the constitution, I do not believe that homosexuality is necessarily sinful and I don't think that same-sex marriage would threaten my marriage, only the social understanding of marriage which will hurt everyone in the long run.

Anonymous said...

The science emphatically does NOT say thta kids do better in heterosexual, married households. Read the American Academy of Pediatrics study that analyzed the results of the many studies doen in this area. WHat it says i sthat children in same-sex households do as well, and in some cases, better than in heterosexual households.

When you look at the studies that claim that children do worse, what they are really measuring is marrie dcouples versus single parent households. Then they claim that it proves kids need a man and a woman to raise them. Compare a marrie dheterosexual household to a similar same-sex household, and we see that kids do just as well.

Are you going to correct all of the misinformation?

Rick Esenberg said...

"Compare a married heterosexual household to a similar same-sex household, and we see that kids do just as well."

Actually, no. That's not what those studies generally do and the samples are not representative. There is no doubt that kids in heterosexual step families do not do as well as kids in heterosexual families of origin. Does it really make sense to think there would be an exception to that rule for homosexual step families (which are what the majority of same-sex couples with children are)? Do you really think that mothers and fathers are interchangeable? Is that consistent with anyone's experience?

I'll post more on this later.

Anonymous said...

I'm just curious. Why post anonymous?