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Live webcast of New Jersey Gay Marriage case:

You can listen now to the live webcast of oral argument before the New Jersey Supreme Court on a case challenging the exclusion of same-sex couples from marriage under the state constitution. It's at http://www.judiciary.state.nj.us/webcast/index.htm.

Hans Bader (mail):
I don't think there's much suspense about the New Jersey Supreme Court's ultimate ruling, given their reputation as one of America's most liberal state supreme courts. They'll legalize gay marriage, relying on the New Jersey state constitution.

Which is ironic, since the New Jersey Constitution's text is actually less protective of equality norms than the federal constitution (it has no textual equivalent of the federal constitution's equal-protection clause; similarly, it has no establishment clause, although the New Jersey Supreme Court has read both an equal-protection component and an establishment-clause component into the New Jersey Constitution by judicial fiat).

Meanwhile, the less-liberal California Supreme Court, which is charged with interpreting a fairly liberal constitution (which contains an equal protection component that has been construed to protect gays since at least 1979), may uphold state laws defining marriage as between a man and a woman.

It's also ironic because in some respects, the New Jersey civil unions statute offers something than better than marriage (it gives civil partners many good aspects of marriage -- such as exemption from inheritance taxes -- without the bad -- such as being forced to pay alimony. Generous alimony encourages divorce because divorces are usually initiated by the impecunious spouse. For example, wives, who initiate at least two-thirds of all divorces, are the typical recipients of alimony. And New Jersey is fairly generous with alimony).

If marriage is substituted for civil unions, gay relationships between partners of differing incomes may actually become less stable, since the less wealthy spouse will be able to get the financial benefits of the relationship without actually being in the relationship.

The decision whether or not to implement gay marriage should be rooted in some statutory or constitutional text, not judges' personal predilections.
2.15.2006 11:50am
Hans Bader (mail):
I was discussing alimony, which is available only to ex-spouses, not ex-gay partners following the end of their civil union, under current New Jersey law, when I wrote above that:

"If marriage is substituted for civil unions, gay relationships between partners of differing incomes may actually become less stable, since the less wealthy spouse will be able to get the financial benefits of the relationship without actually being in the relationship.

Alimony enables an ex-spouse to continue to receive the financial benefits of a marriage without actually being married or continuing to contribute anything to the marriage.

Under New Jersey law, alimony is set largely if not entirely without regard to fault and in practice is based largely on the disparity in income between the ex-spouse receiving it and the ex-spouse compelled to pay it, rather than merit-based factors such as the poorer spouse's contribution to the richer spouse's current earning capacity.
2.15.2006 12:02pm
PhillyBooster (mail):
Hans,

Your summary of New Jersey alimony law is largely accurate -- in general the higher earning spouse will have to pay up to 1/3 of their wage differential as alimony, irrespective of fault, and not including any additional child support.

The question is why the de-stabilizing effects of this alimony system should benefits only low-wage opposite-sex spouses.

In other words, your argument is a potential argument against divorce laws, but not really an argument at all against GAY divorce laws. I could certainly see favoring an amendment of N.J.'s divorce laws -- but then applying that change equally to gay and straight couples. I don't see the rationale for the different standards.
2.15.2006 12:16pm
Hans Bader (mail):
PhillyBooster,

I think the New Jersey Supreme Court would agree with you. So gay people will soon have the right to be just as miserable as straight people after the termination of their union.

(Although in practice, I think alimony awards will be smaller between gay couples than from ex-husbands to their ex-wives, since alimony is powerfully affected by gender discrimination: rich women frequently receive alimony from their even-richer husbands, while poorer husbands typically do not receive alimony even from their wealthier ex-wives, even when the husband has contributed to the wife's earning capacity, such as by working to put her though college. In New Jersey, unlike most states, there is at least one published decision in which a man was awarded alimony from his wealthier wife, but a man receiving alimony is somewhat unusual, even in New Jersey).
2.15.2006 12:47pm
Nobody (mail):
Shorter Hans Bader:


I hate women.
2.15.2006 12:52pm
Hans Bader (mail):
Actually, I am happily married (to a woman). (So much for the false ad hominem attack above contending that I hate women).

I have never been divorced, and neither I nor any of my family members pays or receives alimony (or child support, for that matter).

So I think I'm relatively impartial on the subject of family law. (The basis for my opinions above is that I've read thousands of family law cases. I do not live in New Jersey.)

Incidentally, getting married can still be a good idea if you have prenuptial agreement (assuming you live in a state which has adopted the Uniform Prenuptial Agreement Act), which enables you to get the benefits of marriage, while limiting the costs (such as alimony).

In New Jersey, however, the Uniform Prenuptial Agreement Act was not adopted in its original form. Instead, it was heavily modified before making its way into the state code. As a result, New Jersey law requires that provisions for the impecunious spouse be much more generous than the Uniform Act itself mandates. That means that many prenups are unenforceable in New Jersey even though they would be enforceable in most states, such as Connecticut, Kansas, or Montana.

That's something that a wealthy gay businessman contemplating getting married in New Jersey should keep in mind. It's hard to limit one's financial risks in the event of a New Jersey divorce.
2.15.2006 1:09pm
Bernard Guerrero (mail) (www):
That seems rather unfair, Nobody. While Mr. Bader seems to have a problem with sex-biased alimony awards, I don't see precisely how "hating women" follows from that. If he'd noticed a bias in punitive awards for sexually discriminatory hiring practices that seemed to reward black women more than white women, would he therefore "hate blacks"?
2.15.2006 1:10pm
Hans Bader (mail):
Oops! When I said "Uniform PRENUPTIAL Agreement Act" in the above post, what I really meant was "Uniform PREMARITAL Agreement Act."

Other than that, I stand by my above comments.
2.15.2006 1:13pm
Michael O'D (mail) (www):
Hans Bader:

The larger problem with your point is the implication that New Jersey's favorable civil union law should induce gays to prefer civil unions over marriage. Say you're Catholic, as I am, but live in a time and place in which Catholics are virulently discriminated against. (How about New Jersey, circa 1850?) The legislature passes a law prohibiting Catholics from marriage under the rationale that marriage among them will only yield more hated Catholics. (The desire to keep gay parents from somehow ruining future generations is not usually the explicit rationale of opponents of gay marriage, but I suspect it's an implicit driving force for many.) But then the legislature some years later offers a civil unions option. Catholics still can't marry, but they can have everything up to and including marriage, including a provision that gives them a marginal tax benefit incidental to their non-married status. I don't know about you, but I for one would bristle at the patronizing suggestion that such a second-class arrangement was in my best interest. I would be insulted by it. And I would demand full equality even if that meant giving up the benefit.
2.15.2006 1:28pm
Huggy (mail):
Michael O'D said "...bristle ...even if that meant giving up the benefit."
So what? Everyone has an opinion. Hans Bader has passed on to us useful facts. For which I am grateful. Why do you bristle at becoming informed of current NJ law? My assumption is that you have a childish mental attitude. That's my opinion. Just as valid as your bristle.
2.15.2006 1:53pm
Mr Diablo:
Hans, don't we call acts that have been heavily modified during the political process of legislating, ummm, what's that word, oh right, laws?

So it was modified. Big. Deal. Even if it is a miserable crummy law. Gay people should have the right to enjoy it with all its problems, and then help lobby to change it. (Again, that's what I thought legislatures were for.)

The suggestion that denying gays a right to marry is actually protecting them from bad marriage-related laws is quite insulting. I thought the conservatives didn't like when the government told people what was best for them.
2.15.2006 1:59pm
PhillyBooster (mail):

(Although in practice, I think alimony awards will be smaller between gay couples than from ex-husbands to their ex-wives, since alimony is powerfully affected by gender discrimination: rich women frequently receive alimony from their even-richer husbands, while poorer husbands typically do not receive alimony even from their wealthier ex-wives, even when the husband has contributed to the wife's earning capacity, such as by working to put her though college.


This is not an accurate summary of New Jersey law. The courts look solely to income disparity, not absolute income or the "righeousness" of the person who makes the income. The only factors that effect the "1/3 of disparity" calculation are child-support offsets and length of marriage (you don't get the full 1/3 if the marriage lasted less than about 10 years.)
2.15.2006 2:50pm
e:

The legislature passes a law prohibiting Catholics from marriage under the rationale that marriage among them will only yield more hated Catholics.

Since we're pretending, how about considering that New Jersey could trash marriage in favor of the more neutral civil union for all. Assuming child support and division of assets are still available tools, what is wrong with leaving marriage to personal belief and private institutions?

Thanks for the info.
2.15.2006 2:54pm
PhillyBooster (mail):
That, of course, would work too. Although you'd probably get more pushback telling heterosexuals they can't get marriage licenses than you would telling them that the guy behind them in line might be gay.

When I got married in Pennsylvania, it was still legal to get a "common law marriage", where you just said you were married, and that was it. That just got outlawed recently, which seems vaguely related to gay marriage, but I'm not sure how.
2.15.2006 3:55pm
Bob Smith (mail):
Even if New Jersey law doesn't permit alimony for dissolving civil unions, that's ultimately irrelevant if it allows property division. Stripping one party of property, or loading them up with joint debt, works just as well as requiring them to pay alimony, and is even better for the recipient because all the benefits are paid up front rather than over time. Separate property has the same problem; I've seen judges strip one party of their half of joint assets in order to effectuate a division of (supposedly) separate property.
2.15.2006 4:01pm
e:

you'd probably get more pushback telling heterosexuals they can't get marriage licenses

You may be right, but I suspect that most couples who want to marry would care most about their ceremonial wedding (or marriage) and not mind that the government certificate reads "are hereby joined in civil union, congratulations, thanks for the blood test and fee, you're welcome to pay another fee later to dissolve your joyous union."
2.15.2006 4:47pm
e:
Full disclosure - I'm not married or civilly united. But isn't the legal check in the box usually just seen as a formality, or appreciated for the rights it conveys. Do people actually frame and display their marriage certificates alongside ceremonial wedding photos?
2.15.2006 4:52pm
GMUSL 2L (mail):
e -- Jews do! Well, at least their highly decorated formal marriage contracts.

Look up "Ketubah".
2.15.2006 5:58pm
Michael O'D (mail) (www):
e: Maybe not. But don't underestimate the stigmatization of being denied the same official status as everybody else just because you're different. Married homosexuals may not be able to frame and display their marriage certificates, but civilly united gays certainly can wear the badges and incidents of their "other"ness.
2.15.2006 5:58pm
e:
GMUSL 2L - Thanks! Of course a civil union for all couples would not prevent Ketubah's.

Michael O'D - In my last post I was mostly speaking about heterosexual resistance (or lack thereof) to canning gov't marriage in favor of civil union plus whatever personal traditions people want. There shouldn't be a stigma at all if couples are treated to equal civil unions under the gov't. And people of various faiths could maintain their own meanings of marriage without an offensive imposition. My point: government sanctioned marriage will always offend someone whether or not it includes homosexual marriages. Homosexuals may have solid reasons why people should not be offended by their lifestyle (in born orientation if you so believe), but faith is irrational. We try to keep religious faith out of government, and marriage is as much a religious institution as a legal one. Civil union as the only gov't option should offend fewer people (who can choose private sector weddings and marriage blessings as they wish). Do people really need a paternal pat on the head in every aspect of their lives? That would seem to indicate that the government needs to choose which faith is the best.


On the separate argument that supporters of gay marriage love to attack as reactionary, it seems like there is even more evidence of people being predisposed to polygamy than homosexuality. Isn't that why lots of these "marriage" things end?
2.15.2006 7:22pm
e:
If supporters of gay marriage would oppose civil union for any couple, combined with excision of marriage from law, then I think it is clear that they care more about attacking private religious beliefs than equal public treatment under the law.

Full disclosure - I do not have any such religious faith, but I think that we should not favor a law that is needlessly hostile to religion.
2.15.2006 7:28pm
Michael O'D (mail):
e: I think these are valid points. Mixing the government in marriage is paternalistic and an unnecessary entanglement in religious affairs. And I agree with the theoretical solution of ending state-sanctioned marriage (for some) and replacing it with state-sanctioned civil unions (for all). The trouble is logistics. Don't you think that Americans would balk even more at the wholesale destruction of marriage than at its mere expansion to include a new group? I guess reasonable people can argue about that, but my instinct tells me that to Joe Sixpack, a broader scope of marriage to include gays makes us like Canada (read: unwelcome but tolerable), while the replacement of marriage with civil unions across the board makes us like Old Europe (read: unacceptable). So while I agree with your concerns, I don't think your solution is workable. I think the more realistic course is to broaden the legal definition of marriage to include gays.
2.15.2006 11:19pm
David M. Nieporent (www):
. Don't you think that Americans would balk even more at the wholesale destruction of marriage than at its mere expansion to include a new group?
We libertarians prefer to call it the "privatization" of marriage. (For liberals, call it the "separation of marriage and state.") It wouldn't be "destroyed." It would simply be handled at the social level rather than the government level.
2.16.2006 1:20am