Courting Same-Sex Marriage Rights
In Trenton on Wednesday, the New Jersey Supreme Court heard arguments in the latest legal challenge to state prohibitions on same-sex marriage. Coming just weeks after a Baltimore Circuit Court struck down a 1973 Maryland statute barring same-sex couples from wedding, the New Jersey case reflects what may be the best strategy for pursuing equal marriage rights for all Americans.
As Perrspectives argued back in 2004, considerations of federalism and separation of powers argue that same-sex marriage advocates' best recipe for success lay in state court challenges by those individuals impacted. In the New Jersey case, as in the Maryland and Massachusetts rulings before them, gay couples themselves brought suit, claiming that the respective state constitutions enshrined equal rights and thus could not support "one man/one woman" statutes or codes. While the New Jersey and Maryland Supreme Courts have yet to rule in these cases, the Massachusetts experience suggests the prospects for the plaintiffs are promising.
The contrast with arbitrary action by city or county executives in California and Oregon could not be clearer. In February 2004, San Francisco Mayor Gavin Newsome ordered the City Clerk to perform same-sex weddings. Despite the previous passage of a "one man/one woman" marriage state ballot measure by voters the previous year, Newsom declared the prohibition unconstitutional. That August, the California Supreme Court concluded otherwise, invalidating the 4,000 San Francisco marriages and concluding:
"This conclusion is consistent with the classic understanding of the separation-of-powers doctrine -- that the legislative power is the power to enact statues, the executive power is the power to execute or enforce statures, and the judicial power is the power to interpret statutes and to determine their constitutionality."
In Multnomah County last April, 3,000 gay couples similarly saw their marriages invalidated by the Oregon Supreme Court. There, the Court ruled that Multnomah County officials did not have an implicit grant of authority to "prescribe remedies for any perceived constitutional shortcomings."
Two years ago, Massachusetts Congressman Barney Frank saw the clear distinction between the two approaches. "I was sorry to see the San Francisco thing go forward," Frank said. "If we go forward in Massachusetts and get same-sex marriage on the books, it's going to be binding and incontestable."
As it turned out, Frank had it about right. While 19 states have amended their constitutions to bar gay couples from enjoying equal marriage rights, Massachusetts last September rejected a constitutional ban on same-sex marriage, reversing its stance from only a year before.
Meanwhile, polls in New Jersey show broad support (55% to 40%) for equal marriage rights for gay couples. And in California, same-sex marriage supporters ponder what might have been.