The Third Way in New Jersey:

The New Jersey court gave the state legislature 180 days to do one of two things: either (1) amend the state marriage laws to permit same-sex couples to marry or (2) create a parallel statutory system “which will provide for, on equal terms, the rights and benefits enjoyed and burdens and obligations borne by married couples.” This parallel system could be called “civil unions” (as in Vermont and Connecticut) or “domestic partnerships” (as in California) or something else. Under #1 the state will have fully met its constitutional obligation. Under #2 the state may meet its constitutional obligation but will invite further litigation on the issue. Litigants will get a second bite at the marriage apple.

The question is, having concluded that gay couples are entitled to all of the rights of marriage, why did the New Jersey court not simply order the state to issue marriage licenses to same-sex couples? The gay-marriage litigants in the case likened a parallel system to “separate-but-equal” and “second-class citizenship,” terms that emphasize the dignitary harm done by a law that denies them the status of being married. They argued that marriage is not simply an entitlement to legal goodies, but is a status rich in cultural and historical meaning. Marriage works because the status of marriage is synergistic: it combines important legal rights with important cultural rites. A parallel system can capture the former but cannot fully capture the latter. Very eloquent and even moving affidavits from the couples, quoted at length in the concurrence, make the point that there is ultimately no substitute for marriage.

The court’s tentative answer to this dignitary concern is this:

Raised here is the perplexing question – “what’s in a name?” – and is a name itself of constitutional magnitude after the State is required to provide full statutory rights and benefits to same-sex couples? We are mindful that in the cultural clash over same-sex marriage, the word marriage itself – independent of the rights and benefits of marriage – has an evocative and important meaning to both parties. Under our equal protection jurisprudence, however, plaintiffs’ claimed right to the name of marriage is surely not the same now that equal rights and benefits must be conferred on same-sex couples.

It’s hard to imagine a court saying that the question whether interracial unions will be called “marriages” or “civil unions” might not be “of constitutional magnitude” or could be dismissed as a controversy over a “name.” This suggests that the answer to the question – “what’s in a name?” – is, “Sometimes, a lot.” The “sometimes” here is important because it may be that, in the context of our poisonous racial history, a difference in nomenclature would send an especially demeaning and corrosive message about interracial couples, where a difference in nomenclature alone for gay couples would still signal a tremendous advance forward for gay families. But at least courts should recognize that “names” can matter in ways that law should take into account.

The court also conflates the status issue with a social acceptance issue: it treats the claim for the legal status of marriage as if it is a demand for equal social acceptance. “Although courts can ensure equal treatment, they cannot guarantee social acceptance, which must come through the evolving ethos of a changing society,” argues the court (a challenge: find a parallel claim about social attitudes and law in Plessy).

Of course no court can mandate social acceptance; but that is not what gay-marriage litigants asked for. What a court can do is remove any role the law might play in reinforcing social inequality. Denying the status of marriage to gay couples lends some continued legitimacy to the idea that they should not be accepted socially as the equal of married couples. For many people, that may be the correct message to send. But we cannot deny that it is sent and that law has played a role in sending it. Erasing that final status distinction at least ensures that, if social inequality between gay and straight couples remains, it will be no fault of the law.

The court has not shut the door to a claim for the status of marriage. It suggests that the legislature may be able to come up with a reason to restrict the status of marriage to opposite-sex couples, even though it has failed to come up with a sufficient reason to restrict the rights of marriage to opposite-sex couples. The court doesn’t tell us what this reason might be, but says that “marriage” has a “shared societal meaning” passed down through the ages as the union of one man and one woman. “To alter that meaning would render a profound change in the public consciousness of a social institution of ancient origin,” says the court. Having been hard-headed positivists about legal rights for most of the opinion, here the judges become mystics in their reverence for “marriage.” Perhaps the legislature can cite the unknown consequences of changing the “shared societal meaning” of an ancient social institution as reason enough to choose a parallel system for gay couples, but it is hard to see how this would be different from the tradition-based rationale the state offered and the court rejected for denying rights to gay couples.

Two courts so far have squarely confronted this question of nomenclature and have come to opposite conclusions. The Massachusetts high court could not think of any reason other than prejudice for the legislature to deny the status of marriage to gay couples even as it was required to grant them the rights. A Connecticut trial court recently held that a claim for the status of marriage, where all the rights have already been given, was beneath the constitutional radar.

At any rate, it is now clearer than ever that judges in future gay-marriage cases will see three options:

(1) Democracy-permitting decisions: Deny the gay-marriage claim and do nothing more, leaving all decisions about status and rights to the legislature. This was the route taken recently by the state supreme courts in New York and Washington, although the Washington court left open the possibility of choosing route #2 or #3 in the future.

(2) Status-forcing decisions: Mandate the status of marriage, and all of its rights, for gay couples. This was the route taken by the Massachusetts high court in Goodridge.

(3) Rights-forcing decisions: Mandate the rights of marriage, but not the status, for gay couples. This was the route taken by the Vermont supreme court, and now by the New Jersey supreme court.

Rights-forcing decisions are the “Third Way” in gay-marriage litigation. The gay-marriage litigants in Washington and other states have rejected this remedy. But courts sympathetic to gay-marriage claims in other states will probably see the Third Way as the most attractive option. The advantage of a rights-forcing decision over a status-forcing decision is that it leaves some room for democratic decision – specifically, whether to grant the status of marriage to gay couples. And rights-forcing decisions engender less democratic backlash than do status-forcing decisions, producing potentially more stable gains for gay couples in the long run. On the other hand, rights-forcing decisions may be may prove unstable if they lead to subsequent status-forcing decisions.

Note that the number of states where courts can be expected to be somewhat sympathetic to gay-marriage claims has dwindled to a handful. New Jersey was probably the last, best hope for a full gay marriage victory in a state court for some time to come. California, where gay-marriage litigation is pending, seems more doubtful. In that state, full rights recognition (#3) has already been achieved legislatively so the only real question will be whether the state supreme court is willing to recognize the dignitary concerns that might push it into a status-forcing decision (#2). In a growing list of states, where status-forcing or even rights-forcing judicial decisions were already very unlikely, all three options have been taken off the table by sweeping state constitutional amendments that prevent even ordinary legislative action to protect gay families.

Nevertheless, by the end of next April, New Jersey will join four other states – Massachusetts, Vermont, California, and Connecticut – in giving gay couples access to all of the rights of marriage under state law. All by itself this is a significant development. Of the 300 million people who live in the United States, about 54 million (over 1/6 of the nation’s total population) will live in a state where gay couples have access to the same rights and obligations as married straight couples. Of those 54 million, about 40 million will live in a state where this result was achieved entirely legislatively (California and Connecticut). All of that has happened in just the last six years. The experience we gain and the lessons we learn from protecting gay families under the law in those states will be difficult to ignore in the years to come.