If New Jersey’s marriage equality fight were a chess game, opponents heard a resounding “check” yesterday and don’t seem to have another move. The case won’t be heard until January 2014, yet The New Jersey Supreme Court took an extraordinary step denying the state’s request to stay Judge Mary Jacobson’s order that same-sex marriage must go forward on Monday. It’s hard to overestimate the significance of a court denying the status quo while the case is still pending.
This wasn’t missed by Len Deo, president of the New Jersey Family Policy Council when he indignantly asked, “in what universe does it make sense to let the question at hand be answered before it’s asked or argued?” Well Len, in a universe where courts have all but begged you to produce, even hint at, a logical argument and got nothing but your heartfelt feelings, personal theology and gut instincts.
Not exactly the stuff of vigorous constitutional engagement.
The issue that seems to confound opponents of marriage equality is that to get a ruling in your favor, courts expect you to present a logical argument. Though taglines like “traditional marriage” work fine as conversational euphemisms, they hardly hold up to the sort of scrutiny one ought to expect in a courtroom.
Perhaps the value of “traditional” marriage ought to be self-evident, but it really isn’t. Throughout most of our history, concepts like married women owning property were inconsistent with our culture and our legal system’s definition of marriage: How could a property own property? As late as the 1970’s, the concept of marital rape was equally incompatible with our definition of marriage. The problem with this argument is it requires a dizzying level of cherry picking and courts don’t seem to like–even get insulted by–cherry pickers.
This is one in a series of clumsy, ill prepared arguments that left conservations looking completely caught off guard and struggling to figure out what the hell happened. They still seem unaware of the two tracks of history which converged leaving them backed into a corner, this time in New Jersey.
Their first problem, oddly enough, is that the sanctity of marriage has actually strengthened over the past four decades. The U.S. Supreme Court has staunchly defended the institution against anti-miscegenation laws and from limits on prisoners, dead-beat dads and others. The Court did what conservatives seem to be asking it to. It has decreed this institution too big and too important to be limited by anything less than compelling state interests. It set the standard high: If you want to block a marital union you’d better have a really, really good argument. Oops.
It goes without saying that the concept of what it means to be gay has also changed profoundly. This change though, to their chagrin, wasn’t just about how we all feel about it. It also meant that new and compelling evidence would develop. The law-and-order folks were about to find out that their feelings don’t account for much in the cold, hard world of constitutional law.
If there was a seminal moment when the evidence began to shift, it was when the American Psychiatric Association removed homosexuality from its diagnostic manual in 1973: The notion that sexual orientation is as immutable as gender, race or physical attribute was becoming the norm. Eventually, courts would have to be convinced, not of necessity to restrict the mentally ill, but the necessity to restrict people for being different.
By the time this became a constitutional issue in Judge Vaughn Walker’s courtroom, the marriage equality side had lined up expert witnesses that included The American Psychological Association, The American Medical Association, The National Association of Social Workers, The American Academy of Pediatrics, the American Association of School Counselors The American Association of Secondary School Principals and others. The opposition countered with, what amounted to, personal theology and a few anecdotes.
So yes, the 40 years of research, analysis and evidence, from the organizations that govern and define medical, social, psychological and educational activity in our country, beat out personal theology and anecdote in a constitutional fight in an American courtroom. Exactly why that surprises so many of us is still beyond me.
Of course, similar scenes had played out in the Supreme Judicial Court of Massachusetts, The California Supreme Court, The Iowa Supreme Court, The Connecticut Supreme Court and, later, in the Ninth Circuit of Appeals and the First Circuit Court of Appeals for the very same reason: courts just haven’t heard a valid argument against marriage equality. Now, New Jersey’s Supreme Court seems to doubt that there even is one.