Today, the Supreme Court of New Jersey issued a preliminary opinion in the gay marriage case Garden State Equality v. Dow, declining to postpone the lower court’s decision while the appeal process continues.
It’s mysterious to me why Governor Christie has apparently not yet attempted to remove that gay marriage case to federal court, where it belongs. There’s an obvious federal question upon which the whole case turns: does the word “marriage” in federal statutes include couples in civil unions who have all the rights of married people except for the name “marriage”?
In the recent Windsor case that overturned the Defense of Marriage Act (DOMA), a narrow majority of the U.S. Supreme Court said that its “opinion and its holding are confined to … lawful marriages.” None of the parties in Windsor were in a civil union, so the question about civil unions was not before the Court, and therefore they did not address it. Thus, we don’t know how the Court would decide the question of whether the word “marriage” in federal statutes includes couples in civil unions who have all the rights of married people except the name.
If the U.S. Supreme Court (SCOTUS) gets around to addressing this question, they may decide that Congress intended the word “marriage” in federal statutes to only cover couples to whom the states issue marriage licenses, or they may decide that Congress intended the word to also cover couples that are equal to licensed marriages according to state law. If SCOTUS decides the former rather than the latter, then Congress may wish to extend coverage to couples that state law deems equal to licensed marriages. But I suspect that SCOTUS would not insist upon a “marriage” license to qualify as “married” under federal law, given that unlicensed “common law marriages” have been deemed legally valid for centuries.
In any event, it’s puzzling to me why Governor Christie hasn’t gotten the ball rolling by removing the case to federal court, where it belongs.
Personally, I do not believe that DOMA and similar state laws have merely been expressions of bigotry, notwithstanding what five SCOTUS judges claimed in Windsor. And I don’t trust SCOTUS to strike down statutes based upon perceived (or misperceived) “animus” anyway, mainly because the Court is nuts to argue (in essence) that the exact same law could be valid if reenacted someday by a Congress devoid of “animus”. The framers of the Constitution (and of its amendments) were not nuts, which explains why there is no Anti-Animus Clause in our Constitution.
As a single person, why should I be forced to subsidize gay couples, who are (and always ought to be) perfectly free to become gay couples whether I subsidize them or not? To have this subsidy decreed by a court rather than by legislators also strikes me as rather undemocratic in a country where judges are not supposed to have the taxing and spending power. If such subsidy is going to be decreed by judges, as it was in the Windsor case, then why must the judges also command everyone in the country to use the word “marriage” instead of another non-derogatory word? Haven’t judges already grabbed enough power in this country without also becoming speech police? Can’t they leave one iota of power to the people’s elected representatives? Things long ago reached the point in this country where I would not want to even consider holding elective office; I would want to be a servant of the people, not a servant of judges.
Anyways, Governor Christie, don’t be such a patsy; exhaust your legal options by going to federal court instead of just throwing in the towel prematurely.