The New Jersey marriage decision and the unstable middle ground:

This is the first of two posts on the New Jersey marriage decision, the first judicial opinion from a state supreme court anywhere in the nation to hold unanimously that gay couples are entitled to all the benefits and protections of marriage. In this post, I'll discuss some of the state constitutional arguments and how the court handled them, as well as what it might portend for public policy in other states. In the next, I'll talk about the remedy ordered here -- equal rights, not the status of marriage.

The gay-marriage litigants in the New Jersey case made two arguments. First, they argued that the "liberty" protected by the state constitution includes a fundamental right to marry that extends to same-sex couples. Second, they argued that prohibiting marriage to same-sex couples denies them the equal protection of the law.

The court's answer to the fundamental right argument has been given by every state supreme court to look at the issue. It follows the federal precedents on fundamental rights claims by protecting only those rights "objectively and deeply rooted in the traditions, history, and conscience of the people of this State." Because there is no deeply rooted, historical "right to marry someone of the same sex," the court held, the claim fails.

The court recognizes that "[h]ow the right is defined may dictate whether it is deemed fundamental." This is by now a familiar issue in fundamental rights cases: the more specifically a right is defined the more likely it will be rejected as "fundamental." There is a fundamental "right to marry" recognized by federal and state courts, but no fundamental "right to same-sex marriage." Sometimes courts define the right at stake broadly -- protecting the "right to marry" of prison inmates or protecting the "right to marry" of interracial couples -- where a more specific description of the right would cause the claim to fail (there's no historic "right of prison inmates to marry" or "right of interracial couples to marry").

So far, so good: the New Jersey court acknowledges the level-of-generality problem. But then the court chooses the specific definition of the right at stake ("a right to same-sex marriage") with a very unsatisfying explanation for its choice. It cites, for example, state statutes that deny marriage to "polygamous, incestuous, and adolescent" unions as evidence that "the liberty interest at stake is not some undifferentiated, abstract right to marriage, but rather the right of people of the same sex to marry." Citing state statutes limiting marriage -- not for the evidence they provide about traditions but for deciding the threshold question of how broadly to define the right — is an odd way to proceed. If the Supreme Court had done that in Loving v. Virginia, for example, it would have had to look at the state statutes (including Virginia's own) that denied marriage to "polygamous, incestuous, and adolescent" unions as evidence that the right at issue was the untraditional "right of interracial couples to marry"; or in Turner v. Safley, that the right at issue was the untraditional "right of prison inmates to marry."

I'm not arguing that the choice of a narrower characterization of the fundamental right at issue ("a right to same-sex marriage") is the wrong choice. I'm only noting that, after a handful of state supreme court and federal opinions, we still do not have a very defensible methodology for making this choice in the context of gay-marriage claims.

On the second claim -- equal protection -- the New Jersey courts have interpreted the state constitution in ways that are very different from the federal precedents and many other state courts. New Jersey does not follow what the court calls the "rigid" three-tiered scrutiny of the federal equal protection cases: "strict scrutiny" for race classifications, "intermediate" scrutiny for sex/gender classifications, and "rational basis" for almost every other kind of classification. (In fact, the New Jersey state constitution does not even contain an explicit equal protection guarantee.) Instead, the state courts have adopted a "flexible" test that calls for distinctions between "similarly situated people" to be justified by "a substantial relationship to a legitimate governmental purpose."

I won't go into the details of the holding on this point, but it's enough to say this: New Jersey ran into trouble because, having started down the path to full equality for gay individuals and couples through a variety of state statutes and judicial decisions, the state could not give any good reason why it should continue to differentiate. For example, the court noted, the state has adopted a domestic partnership system that gives gay couples a list of rights also given to married couples. But yet the domestic partnership system does not extend other rights of married couples to these same-sex couples. What's the basis for granting a select list of the rights but not the others?

This discussion of a gap served two equal-protection functions in the opinion: it established the importance of the issue of rights already given to gay couples and highlighted the importance of the remaining rights denied them. (Unlike other courts addressing the issue, the court also emphasized the hardships that denial of the remaining rights places on children being raised by gay couples. Hardly any court before this one has underscored that point.)

All of this put pressure on the state to come up with a reason for the remaining gap. Here, the case differs in an important respect from other state court cases:

The state does not argue that limiting marriage to the union of a man and a woman is needed to encourage procreation or to create the optimal living environment for children. Other than sustaining the traditional definition of marriage, which is not implicated in this discussion, the State has not articulated any legitimate public need for depriving same-sex couples of the host of benefits and privileges catalogued [earlier in the opinion].

The state thus surrendered the two rationales for denying equal rights to gay couples that have been successful in other state court decisions: procreation and child-rearing. But I doubt this surrender was the result of bad lawyering by the state. Instead, it was likely a consequence of the favorable public-policy environment already created legislatively and judicially for gay couples. Consider this passage from the opinion:

It is difficult to understand how withholding the remaining "rights and benefits" from committed same-sex couples is compatible with a "reasonable conception of basic human dignity and autonomy" [recognized in the state domestic partnership law]. There is no rational basis for, on the one hand, giving gays and lesbians full civil rights in their status as individuals, and, on the other, giving them an incomplete set of rights when they follow the inclination of their sexual orientation and enter into committed same-sex relationships.

It's significant that no other gay-marriage case (with the possible and instructive exception of Vermont, where the court adopted similar reasoning) has been brought to a state supreme court in a state with as favorable a public policy toward gays as this one was: a broad set of antidiscrimination laws, domestic partnerships, second-parent adoptions, a hate crimes law, and so on. In this environment -- where the state was committed to protecting gay people, sustaining gay couples, and facilitating gay parenting -- it was both logically and practically difficult to hold on to the procreation and child-rearing rationales. The state had nothing left in defense of the rights gap except an unadorned "tradition" that the state itself had steadily undermined in its public policy.

The whole case, then, shows how unstable a middle ground can become in the hands of an aggressive court. The slope on that middle ground seems much more slippery for courts, which demand what they regard as principled reasons for any distinction, than it is for legislatures, which may refuse to budge for no reason other than that the votes aren't there to do more or because of simple fiat. When legislatures act, they may grant 50 of the 1,000 rights of marriage now, another 25 rights next year, another 100 the year after that, and the rest whenever they get around to it, all without explaining why they've acted or failed to act. Courts have a harder time making these distinctions because judicial conventions mandate that they give reasons to support their opinions, and what principled reason could there be for giving 50 of the 1,000 rights of marriage but not another 25 or 100 or all of them? This is the slippery slope phenomenon Eugene points to. It's not so much a legislative slippery slope as it is a judicial one.

Seen in this light, the New Jersey court's quotation from Justice Brandeis' famous dissenting opinion praising the states as "laboratories" to "try novel social and economic experiments" is a bit ironic. The New Jersey court now holds that once the state substantially experiments with gay equality it must go all the way, ending the experiment.

While the result in this case is surely a good one for gay families, it may chill experiments in other states where legislators might fear that they cannot move incrementally toward equality for gay couples without surrendering the judicial basis for any remaining distinctions. I doubt that's really a great danger in most states, where courts tend to be less aggressive than New Jersey's and where the standard rational-basis test should allow legislatures to proceed incrementally, but this opinion will surely be cited as a reason not to grant any rights to gay couples.

The question then is, having closed the gap with respect to all rights in marriage, what basis could there possibly be not to close the remaining gap with respect to equal status in marriage?