Page 1 1 of 1 DOCUMENT Copyright (c) 2007 Rutgers University, The State of New Jersey Rutgers Law Review Winter, 2007 59 Rutgers L. Rev. 233 LENGTH: 15904 words SYMPOSIUM 2006: SAME-SEX COUPLES AND "THE EXCLUSIVE COMMITMENT": UNTANGLING THE ISSUES AND CONSEQUENCES: "HOW DOES SAME-SEX MARRIAGE THREATEN YOU?" NAME: George W. Dent, Jr. * BIO: * Schott-van den Eynden Professor of Law, Case Western Reserve University School of Law. B.A., Columbia College, 1969; J.D. Columbia University, 1973; L.L.M. New York University, 1981. SUMMARY: ... In Lewis v. Harris , the New Jersey Supreme Court ruled on the legal status of marriage, a matter of immense importance, without ever really discussing why the law does or should care about marriage at all. ... It seems more likely, though, that recognition of SSM would result in little benefit to gays and substantial harm to traditional marriage. ... This does not necessarily mean that children raised by homosexuals are more likely to be homosexual, although some studies hint that they are. ... Defenders of traditional marriage don't need to explain the social significance of marriage; the proponents of SSM, including the minority in Lewis, have already done it for them. ... Because of different attitudes toward SSM, the law would have good reason not to hold same-sex couples to the same standards as traditional couples concerning such matters as adultery, child support and divorce. ... Second, more children are likely to be raised in this milieu if the law favors traditional marriage by giving it a unique status entailing both material, economic benefits and expressive, symbolic support. ... The New Jersey Supreme Court blundered when it failed to realize these truths in Lewis v. Harris. Everyone who cares about the fate of our society, and especially of its children, should encourage the legislature and New Jersey Supreme Court not to allow Lewis to damage society, but rather to preserve and strengthen traditional marriage and the family. HIGHLIGHT: In Lewis v. Harris n1, the New Jersey Supreme Court ruled on the legal status of marriage, a matter of immense importance, without ever really discussing why the law does or should care about marriage at all. Accordingly, the decision is unsatisfactory not only for those who believe traditional marriage is special, but also for those who believe that the decision exacerbates inequality and injustice by further entrenching the privileged status of married people over unmarried people. The latter group asks why marriage is relevant to the law at all. On the other side, advocates of legal recognition of same-sex marriage ("SSM") often counter defenders of traditional marriage by asking "how does same-sex marriage threaten you?" This article responds to both questions. TEXT: [*233] I. The Lewis Decision As the majority in Lewis found, those who drafted and approved the state constitution in 1947 "could not have imagined" that the constitution would provide for legal recognition of SSM. n2 Even if one accepts the idea of a "living Page 2 59 Rutgers L. Rev. 233, *233 constitution" by which a new constitutional right might be recognized because of a new public consensus, nothing like such a consensus has emerged about SSM. n3 The minority agreed about the lack of a consensus, n4 but was willing to disdain the beliefs of the people of New Jersey and substitute their own preferences. [*234] The court found unanimously that restricting recognition to traditional marriage violated the principle of equal protection implicit in the state constitution. n5 The notion of equality is notoriously "empty." n6 The majority holds that like things should be treated alike, n7 but application of that principle depends on what things we deem to be alike. n8 To satisfy the equal protection requirement a law must "bear a substantial relationship to a legitimate purpose." n9 The court listed three factors to be weighed in applying this test: "the nature of the right at stake, the extent to which the challenged statutory scheme restricts that right, and the public need for the statutory restriction." n10 Most Americans do not now and never have believed that SSM is like traditional marriage. Unfortunately, the court disregarded both traditional and current public attitudes and substituted its own preferences, which it evidently considered superior to those of hoi polloi. n11 First, the court recited the extensive New Jersey law conferring rights on homosexuals, n12 but it then noted that "they still are denied many benefits and privileges accorded to their similarly situated heterosexual counterparts." n13 The court then discussed the "public need" for the statute affording special treatment to traditional marriage, and here we discover that this case was rigged - the state took a dive: "The State does not argue that limiting marriage to the union of a man and a woman is needed to encourage procreation or to create the optimal living environment for children." n14 Indeed, except for the use of the [*235] word marriage, "the State has not articulated any legitimate need for depriving same-sex couples of the host of benefits and privileges" of marriage. n15 The appellate division, refusing to be a party to this fix, had no difficulty identifying a public need for traditional marriage in the bearing and raising of children. n16 That feat was hardly Herculean; several other courts, n17 nearly every legislature in America and the rest of the world, and millions of individuals have done likewise. But this feat was beyond the abilities of the justices of the New Jersey Supreme Court. Surprisingly, however, having played dead on the issue of the benefits and privileges of marriage, the majority then came to life when it discussed the significance of the word "marriage." The majority refers to the traditional definition of marriage and says that "to alter that meaning would render a profound change in the public consciousness of a social institution of ancient origin" and have "far-reaching social implications." n18 That is certainly true, so how could the majority have simply assumed, without discussion, that changing the treatment of marriage in every way but the label used would not have "far-reaching social implications"? The minority was even more obtuse in this regard. The minority opinion concedes - indeed trumpets - the "deep and symbolic significance" of legal recognition of marriage. n19 The minority quotes affidavits presented by plaintiffs referring to the "significant respect that comes with the declaration "we're married[;]'" that it "gives you automatic membership in a vast club." n20 The dissent also quotes with approval a statement that its "long traditions of historical, social, and personal meaning" make marriage "a social resource of irreplaceable value." n21 As Joseph Raz says: "Monogamy ... cannot be practiced by an individual. It requires a culture which recognizes it, and which supports it through the public's attitude and through its formal institutions." n22 Yet the minority never bothered to ask how radically [*236] changing those "long traditions" would transmogrify the "deep and symbolic significance" and "significant respect" attached to marriage. n23 Similarly, the dissenters, like the majority, display no curiosity about why, although many societies have tolerated at least some types of homosexuality, virtually all human societies throughout history have limited marriage to heterosexual relationships. The dissent simply notes that the State had eschewed a defense of the statute based on the "promotion of procreation and creating the optimal environment for raising children." n24 The dissent then cursorily concurs with the State's decision on the ground that "same-sex couples increasingly form the core of families in which children are conceived, born, and raised[,]" n25 and that "empirical studies comparing children raised by sexual minority parents with those raised by otherwise comparable heterosexual parents have not found reliable disparities in mental Page 3 59 Rutgers L. Rev. 233, *236 health or social adjustment[.]" n26 The dissent does not even acknowledge conflicting views. Since the New Jersey Supreme Court utterly failed to do its job, those who care about the welfare of our society, and especially of its children, must address the issues that the court ignored. II. Framing the Question The majority and minority in Lewis clashed over how to frame the question before the court. The majority said the court "must determine whether the right of a person to marry someone of the same sex is so deeply rooted in the traditions and collective conscience of our people that it must be deemed fundamental ... ." n27 The majority then answered that question in the negative. n28 The minority objected: "When we ask the question whether there is a fundamental right to same-sex marriage "rooted in the traditions, and collective conscience of our people,' ... we suggest the answer, and it is "no.'" n29 The minority argued that the proper question is: [*237] whether there is a fundamental right to marriage rooted in the traditions, history and conscience of our people ... What same-sex couples seek is admission to that most valuable institution [i.e., marriage], what they seek is the liberty to choose, as a matter of personal autonomy, to commit to another person, a same-sex person, in a civil marriage. n30 This statement is misleading, if not false. People already have "the liberty to choose, as a matter of personal autonomy, to commit to another person, a same-sex person" in a wedding, to consider themselves married, and to be so considered by any other person or organization (including an employer) that wishes to do so. Unlike interracial couples under the statute struck down in Loving v. Virginia, n31 same-sex couples who marry in New Jersey are not subject to criminal punishment, or any other penalty. The only thing they cannot do is to compel the state and unwilling private parties to honor their arrangements as marriages equal to traditional marriages.