OPINION & EDITORIAL
Court weighs culture, law
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Also by Robert Phansalkar:
- 'Think, Respect' does neither, preempts rational action (November 14, 2007)
- 'Taser this' editorial tame compared to past (October 2, 2007)
- Lawmakers' plan bigger problem than baggy pants (September 18, 2007)
- Right-wing judicial activism fault of liberal tactics (August 31, 2007)
Related Stories:
- Right-wing judicial activism fault of liberal tactics (August 31, 2007)
- Judges need diverse résumés (February 13, 2007)
- Ban displays public resolve (November 1, 2006)
- Defending homosexuals, defending marriage (November 13, 2003)
- Pledge protection undermines court (September 30, 2004)
by Robert Phansalkar
Tuesday, October 31, 2006
It might have been lost in all the commotion preceding the drunken revelry of Madison's Halloween weekend, but a case decided in New Jersey showed that courts can get an issue right.
Without appealing to the leftist mantra of semantic equality, nor the right's naíve insistence that same-sex couples don't exist and don't deserve rights, the New Jersey Supreme Court decided fairly and with restraint that marriage, or something of a different name, is a right guaranteed to all.
The decision should prompt Wisconsinites, in the middle of our referendum battle on marriage and civil unions, to realize a truism of modernity: Conventions actually do exist, but we must ensure that these do not seriously impede equality.
New Jersey's decision, Lewis v. Harris, decided that the government's denial of marriage rights to same-sex couples constituted "no substantial relationship to a legitimate government purpose," asserting that the denial of such is problematic on the basis of its violation of Equal Protection Rights guaranteed by the New Jersey Constitution.
However, where the court departed from the official hard-line of Lambda Legal, an organization devoted to LGBT civil rights, is in seeking to divorce the words “marriage” and “equality.”
The court held that such semantics were better "left to the democratic process" rather than the court. Call this case an example of judicial restraint, where the courts understood their function was simply to void or affirm law, not to make it.
Conservatives have slammed other cases, such as Goodridge v. Massachusetts, claiming that the courts went too far by granting full marriage rights to gay couples. While the basis for their contentions is false, their argument is not entirely without merit.
The truth is that the justices in Goodridge did go too far. The justices even acknowledge as much by claiming they are "mindful that [their] decision marks a change in the history of our marriage law."
However, their decision did not simply change the definition of marriage law, it also changed the definition of marriage itself.
Marriage as traditionally defined has been between a man and a woman. This convention has not been known as anything else in its entire existence. To simply redefine marriage is to change culture, not just law.
New Jersey acknowledged this, and did not simply placate the concerns of leftists bent upon semantic equality. Rather than making law by claiming that marriage is the only word that can be used for equality, New Jersey's court allowed for its citizens to make that decision themselves.
Leftist hesitation to allow the electorate to decide cases of minority rights is certainly understandable, but when it comes down to a simple choice between words, one has to question why the compromise has not been made.
New Jersey allowed for its public to make this word choice, but put it under the limitation that any word chosen would be subject the standards of equality the court had outlined.
Wisconsinites should be mindful of this choice, as the current referendum is not simply the banning of same-sex couples of rights to marriage, but also civil unions, the very thing New Jersey's court protects.
Wisconsinites will disavow this ruling if the amendment passes. Wisconsin's bill, by banning any institution similar to marriage, eliminates the possibility that roughly 10 percent of its society will ever be able to join in a legally recognized union.
We should be aware that conventions do exist in our society and not all of them are bad. Mere realizations that differences exist between groups and people do not solely imply inequality, as these differences can be used to actually increase equality at times.
But when conservatives demand that our society use culture and its conventions and differences to perpetrate inequality, they violate a strong and meaningful set of principles, which define modernity: law.
Wisconsinites, and society in general, need to ask: Does the word “marriage” really mean “equality” or are civil unions a reasonable and equal solution?
The answer is one that New Jersey's court appropriately left up to the people because, after all, it is a question about both culture and law.
Robert Phansalkar (phansalkar@wisc.edu) is a senior majoring in languages and cultures of Asia and political science.
Anonymous (October 31, 2006 @ 7:33am):
The state should not recognize any religious institution. Gay and straight, all American by birth, should be able to incorporate as they choose without the influence or advice of preconceived dogma.
"Marriage" can be defined by the individual churches, but civil unions should be equally recognized by the state for gays and straights.
Anonymous (October 31, 2006 @ 7:51am):
"Marriage" does mean "equality" in the sense that two people go to get married, and are rejected, solely because they both happen to be of the same gender.
I just don't see any other reason that people support this ban other than an incredible dislike for a sexual orientation with which do they do not agree. I'm not seeing the fairness in that.
I suppose they do use the Bible to argue their belief as well, but ahem, since when was it proven that God does or does not exist? Why should one book, translated many times throughout history, be the rule we follow, when in fact, contradictions exist within it.
E.
Anonymous (October 31, 2006 @ 3:31pm):
Gays do have the right to marry. As long as their spouse is of the opposite sex.
Anonymous (October 31, 2006 @ 4:11pm):
Exactly. Just like gays have the right to serve in the military-- they just need to hide their sexual preference and not act all gayish like Patti Labelle or Barry Manilow.
Anonymous (October 31, 2006 @ 4:25pm):
That is true. Gays have the same rights and restirctions to marriage that I, a straight male, do.
Anonymous (October 31, 2006 @ 6:51pm):
Anon 4:25 --
No, they don't. As a straight male, if you choose to marry, you will be legally permitted to marry the partner you choose, and you and that partner will have over 1000 rights accorded to you by virtue of your state-sanctioned relationship. Gay people, by contrast, are not permitted under current law to marry their chosen partners, and therefore are denied all those rights you get by virtue of having a different sexual orientation.
That's discrimination by definition.
Anonymous (October 31, 2006 @ 7:18pm):
Except we can't marry the people we love. But that's irrelevent, right? Marriage isn't about love, it's about putting a penis inside of a vagina and thrusting until sperm is released. Marriage has nothing to do with lovey dovey vows and spending life together with one person. It's about gooey, sticky cum and damp flappy vaginas. If the Badger Herald lets this comment post, I promise to buy them a round.
