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October 26, 2006

Marriage, or Something Like It

The Supreme Court of New Jersey yesterday concluded that the state's marriage law fails to meet the modern standards of decency and tolerance. The majority took great effort to avoid the appearance of an activist decision, but in the end it squirmed to balance its legal analysis with its social ideals.

In the opinion, the court claimed that no fundamental right existed for same-sex marriage, but then seemed to label anything else unconstitutionally discriminatory. The court claimed that it wasn't redefining marriage in New Jersey, but then demanded that there be no essential difference between traditional marriage and same-sex unions. The court claimed that it was appealing to democratic process to change the law, but then mandated that the legislature grant same-sex couples all the legal benefits of marriage.

As National Review editorializes:

It is being described as a partial victory, because the court has said that same-sex couples must have access to the same benefits as married ones but not that they must be eligible to be called “marriages.” Do not be fooled. The court has accepted the premise that treating married couples differently from same-sex couples is a kind of irrational discrimination. That premise leads fairly directly to same-sex marriage in logic, and may do so in future litigation.

And the New York Times' praise for the ruling includes the realization that "the court required the Legislature to level the playing field in every respect but one. It said lawmakers can call relationships between partners of the same sex marriage, or something else."

The Times is also likely correct that the citizens of New Jersey are not quite ready for its lawmakers to call these judicially ordered unions "marriage." To force the state to accept such a radical change of the social framework is arrogance of the highest order and spits in the face of both the sanctity of marriage and the order of a republican government.

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