Gov. Chris Christie’s stance on marriage equality has always been a bit muddled. He is opposed to marriage equality if it is passed by the Legislature (the representatives of the state’s voters), but would allow it to stand if it were backed by voters — a stance that essentially boils down to “I can only veto bills in the Legislature, not state constitutional amendments.”
It’s also why, for instance, he opposes a constitutional vote on a minimum wage, which he says is not something that should be included in a constitution. The constitution, he says, should be reserved for questions of overarching rights. This, of course, is ludicrous — the constitution sets forward all kinds of rules, well beyond the idea of individual rights or the basic structure of government. The New Jersey constitution, for instance, weighs in on whether and where gambling is permitted and who can run lotteries and other games of chance, as well as setting aside specific allotments for hazardous waste clean up and other public needs. There is no reason it cannot include a provision on a minimum wage.
But I digress. Christie doubled down last week when the state issued its brief in Garden State Equality v. Dow, the lawsuit challenging the state’s failed civil union law. The plaintiffs are arguing, persuasively I think, that the existence of the separate marriage and civil union designations create a secondary status for gay and lesbian couples and that in doing so the state has failed to ensure that gays and lesbians are being treated equally.
The state, in its brief, is attempting to defend the indefensible, which has led it to present what Nathaniel Frank on Slate.com calls “may be the most incoherent defense of heterosexual supremacy yet.”
Christie’s brief defends civil unions in three ways. First, it argues that the state can rationally restrict the label “marriage” to heterosexual unions because it is “preserving” the definition of the word. Second, it contends that it’s actually the feds who are now blocking gay equality by withholding benefits to civil union partners. And third, it claims that the state courts should move very cautiously when contemplating a major change in social institutions—all fine and well except that, as the state itself admits, calling a gay union a marriage isn’t much of a change anymore. In fact, throughout the brief, what’s most striking is that every last argument Christie’s administration makes, it then proceeds to blatantly contradict.
Frank then goes on to deconstruct the Christie administration’s bizarre tangle of reasoning, which only proves that arguments against marriage equality can only be made if the folks making them are willing to contradict themselves — unless, of course, they are willing to engage in outright homophobia.
This is of a piece with Christie’s overall strategy on the issue. He continues to profess opposition to same-sex marriage — whether it is from sincere belief or from a pragmatism born of his apparent desire to run for president as a Republican, which will require him to pass through the gaunlet of homo-haters in the GOP primary. But he knows that his position has grown unpopular in the state, so he is throwing a bone to voters by saying he’ll live with the outcome if they endorse marriage equality on the ballot — which he also knows most advocates of same-sex marriage have refused to endorse. This has created the present stalemate, one likely to end only when the court acts.
But Christie, in his brief, discredits the court option, saying the court needs to show caution and essentially stay out of it.
The chances of this are slim — the court is very likely to rule in favor of marriage-equality advocates, given the very real and documented problems with civil unions and the movement toward acceptance of same-sex marriage in the state and the nation.
If the court rules against marriage-equality advocates, however, — or a potential veto override fails during the winter lame-duck session — then they are going to have to rethink their opposition to a statewide referendum as the only way to advance the issue. Initially, I opposed a referendum, but with Christie serving as a massive impediment to full equality for the LGBT community, there likely would be no other way to grant full rights.
We have to acknowledge that rights are legal constructs and they lack any meaning if they lack legal foundation. LGBT New Jerseyans deserve equal marriage rights as soon as they can be granted — whether they come via the Legislature, the courts or a constitutional change.
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Hank Kalet 