More on New Jersey

Throughout the past few days, we'e been having intermittent problems with our internet service and with Blogger (the free service that makes this blog possible). Our apologies for not being able to post in a timely manner.

Back to New Jersey just briefly before we carry on with the very huge task ahead of us of turning out thousands of "No" voters on November 7th.

Our opponents will continue to try to blow this up and make it sound like what happens in New Jersey automatically happens in Wisconsin. But from my review of news coverage, the New Jersey story was not a top story in most national news coverage. Yesterday in the office, we did get many calls from Wisconsin reporters wanting to know the impact here, but overally I think this story is receding because most people understand we're having a different debate--about a very far-reaching and harmful proposal to permanently outlaw civil unions and potentially take away existing protections from thousands of families here.

Our opponents want everyone to think this is an abstract debate about judges half a country away, but it's not. This is a debate about people who live here and the way we should treat them. Our Story Project provides a good reminder about the families who are affected by this debate.

That said, many of our supporters are looking for more information about the implications of New Jersey. Because our opponents are working overtime to exaggerate the impact of New Jersey and what it would mean, we pulled together the basic facts and distributed this information yesterday to statewide reporters and editors.

The New Jersey Supreme Court did not legalize marriage for gay couples. What the court ruled is that the state legislature must determine a way to provide equal rights and responsibilities to gay families, whether they call this civil unions, marriage, or something else. Quote from yesterday's decision:
"At this point, the Court does not consider whether committed same-sex couples should be allowed to marry, but only whether those couples are entitled to the same rights and benefits afforded to married heterosexual couples. Cast in that light, the issue is not about the transformation of the traditional definition of marriage, but about the unequal dispensation of benefits and privileges to one of two similarly situated classes of people."
Unlike in Wisconsin, New Jersey statutes do not define marriage as between a husband and wife. New Jersey is one of the few states that did not specify gender in its marriage statutes. In fact, the statutes refer generically to couples and "contracting parties." Wisconsin statutes define marriage as between a husband and a wife.

Recent court rulings in states like Washington, Connecticut, and New York rejected marriage for gay couples (and did not directly request that legislatures address the issue). Every state will deal with these matters in its own way.

Unlike courts in New Jersey, Wisconsin courts do not have a long track record of expanding rights for gay people. Generally, the New Jersey courts have used a more rigorous equal protection standard in reviewing discrimination claims. For example, Jersey courts have ruled for joint parenting rights of gay couples. There were critical precedents there that made yesterday's decision much more likely. Meanwhile, in the last two decades Wisconsin courts have ruled against second parent adoption for gay parents and against domestic partner benefits.

Also, Wisconsin judges are not appointed; they must stand for reelection.

As a purely factual matter, it's ridiculous of our opponents to say Wisconsin would go the way of New Jersey, even if there were a civil unions or marriage lawsuit here (there's not).

Let's get back to the debate about the measure on the Nov. 7th ballot in Wisconsin.


At 10:35 AM, Blogger Communitygal said...

This point of Josh's is important for anyone getting in the weeds on the legal angle of this:

"Unlike in Wisconsin, New Jersey statutes do not define marriage as between a husband and wife. New Jersey is one of the few states that did not specify gender in its marriage statutes. In fact, the statutes refer generically to couples and "contracting parties." Wisconsin statutes define marriage as between a husband and a wife."

Our opponents issued a press release yesterday lying about this very point (and others), claiming that New Jersey statutes do define marriage as between husband and wife.

When people are lying, it is because the truth does not benefit them and they think people won't notice. The people of Wisconsin are not that dumb.

At 1:56 PM, Anonymous David said...

Did anyone ever stop to think that there should be no need to specify that a marriage is between a Man and a Woman?

Anything else is not natural.

I will vote YES on this ammendment, not because I am opposed to gay "marriage" (which I am), but because I do not think that people who live together (domestic partners) of any sexual orientation, should receive the same benefits as those of us who are married.

At 2:35 PM, Anonymous Anonymous said...

Open-heart surgery, artificial food coloring, computers and diet soda are all "not natural."

I'll bet you're not even aware of half the "benefits" of your marriage because you take them for granted. I'm talking about government benefits (give unto Caesar that which is Caesar's) not your smug spiritual superiority, to which you can help yourself all you want.

At 6:05 PM, Anonymous Jane said...

David: You only show your ignorance and/or small-mindedness when you make the statement, "Anything else is not natural" in the context in which you did. Did you ever stop to think that what's natural for one person may not be to another? And who decides what's natural? You? I don't think so.

At 8:52 PM, Blogger Jenn said...

I found the press release Communitygal refers to on the Vote Yes for Marriage website. Preceding the lie about NJ statutes is a blatant scare tactic in the very first sentence--claiming that New Jersey "redefined marriage" to include same-sex couples. Talk about using the hot-button buzzwords to scare people.

At 10:28 PM, Anonymous Jill said...

I think the New Jersey decision is fantastic! 7 out of 7 judges interpreted the law, which as we know from 8th grade civics class is their job, and they got it right. They said that equal protection under the laws MEANS that the government can't deny some people benefits and privileges that are granted to others. I think Fair Wisconsin should post the decision on the website so people can read it for themselves. The reasoning in the decision goes to the heart of the campaign against the civil unions and marriage ban. The judges honor the deeply held American value of equality under the law, and they honor the importance of personal stories to helping people to understand how much in common all committed couples have with each other, and how much individual pain is caused by devaluing those commitments. This decision is good news.

At 10:28 PM, Anonymous Keith said...

Gee, Anonymous, if David got your goat and elicited that response, I hope you haven't been knocking on too many doors!

I don't think he's engaging in "smug spiritual" anything. Although I suppose the reference to "natural" could be taken as "spiritual" in a sort-of Walden Pond kind of way.

I think you will find that it is us NO folk who are the spiritually smug ones, more often. We have the knowing smiles that, no matter what your spiritual bent, you probably are in favor of feeding the hungry and comforting the dying, which are the things the amendment is designed to prevent.

I think you misinterpret David's point. He is voting YES for very concrete legal reasons. The same reason I would vote YES if the amendment only applied to strait folk who are shacking up without bothering to marry... If people want the benefits of marriage, they ought to get married! No sense in creating a "marriage lite" that gives benefits but includes no obligations.

The only place David's YES falls flat is the fact that gay and lesbian couples CANNOT be married under US law. Until the Federal Government grants marriage as an option for all people, he is uncomfortable with the idea of states picking and choosing from among the rights and obigations to grant.

David, do I understand you correctly?

At 7:58 AM, Anonymous Keith said...

David's comment kept me awake last night, because I am trying to get my head around his feelings. By mulling on the New Jersey decision, the purpose of the thread, I think I've put my finger on it.

The New Jersey Supreme Court frames the issue quite succinctly. The problem with gay couples and our families is that there is no LEGAL FRAMEWORK around which we are counted ass citizens. In the end, every nation, and in the interim every state, needs to construct a framework. And there are really only four choices.


(2) CIVIL UNIONS, with all the rights and duties of marriage,

(3) DOMESTIC PARTNERSHIP REGISTRATIONS, with an assortment of clearly defined rights and duties, or

(4) NON-CITIZENSHIP, in which gay families are simply legal strangers to one another, and have no rights at all.

The New Jersey decision, like Vermont and Connecticut before, simply said that #3 is not an option, since picking and choosing of rights violates New Jersey's rule of Equal Protection. So now, it's simple. Lawmakers can choose #1, #2, or #4. Although one very vocal Republican has mentioned #4, all the other folks in government there have recognized that the People are more interested in arguing between options #1 and #2.

Which brings me to David's thoughts. Something in his gut, what he calls "natural," tells him that #2 and #3 are kind of weird. In the same way that Black citizens were supposed to be "separate but equal" in the Jim Crow South. Or in he way that the legal position of Jews was batted around for centuries in Europe.

We sit in a similar place. What the amendment does, and the reason David expresses for his YES vote, is to forbid #2 and #3. The fact that it forbids #1 also is, as he puts it, irrelevant to his vote, although he is opposed to #1 also.

In other words,... New Jersey's permission for CIVIL UNIONS leaves him uncomfortable in two ways.

A DOMESTIC PARTNERSHIP is a "marriage lite" that is bad for strait people who cannot commit to marriage.

A CIVIL UNION is a stepping stone to gay marriage, which would be bad for gay people.

My question to David now is... It seems that Option #4 is the only choice left for the People of Wisconsin if the amendment passes. How will you navigate that one?

The New Jersey Supremes got it right. If the People of New Jersey want to take Option #4, they can. But they will need to spell out clearly how that works.

As for Wisconsin, if this amendment passes, it leaves our lawmakers with only one option. Define as clearly as possible how citizenship is different for Gay Wisconsinites.

Should we pay taxes? Or different taxes? Should we be able to vote? Separate washrooms? Perhaps set aside one or two counties where we can live?

At 9:01 AM, Anonymous Anonymous said...

keith, I'm the one who's confused now. David clearly doesn't want gay and lesbian couples to have any rights: he's against marriage for gays and lesbians, and he's simultaneously against any other sort of recognition.

However, I don't think it's clear whether he differentiates between plain ol' "shacking-up" domestic partners vs. a formal system of registering domestic partners that might have costs associated with splitting up. He may have the two conflated in his mind. And I doubt we'll hear more after his missive.

But how are our lawmakers left with the requirement to define how gay Wisconsinites have a different type of citizenship? Our lawmakers--or at least those in control--will continue to do what they always have: nothing. Unless you mean they will start passing laws to take away rights in statute and administrative code.

I'm happy to quit knocking on doors, if you're going to pick up the slack. I've only knocked on 500 or so, and they haven't "elicited a response" like that from me. That's why I'm venting here.

At 9:45 AM, Anonymous keith said...

Thanks, Anonymous, for the 500 doors! I have been amiss, mostly because I have been out of the country for much of the campaign.

You put things succinctly, and the New Jersey court would agree with you.

Wisconsin lawmakers have done nothing. ABSOLUTELY NOTHING. And the amendment would prevent them from EVER doing anything positive.

Therefore, gay citizens remain in a sort of limbo, neither the heaven of equal security nor the hell of a ghetto.

You are also correct that the only option the lawmakers will have is to START TAKING AWAY RIGHTS. And that's likely the route they would need to take, because the limbo alternative is LITIGATION.

Right now, ever single right is in limbo. Is my power of attorney or my will worth anything? Can I join a health club under a family plan? Is my partner covered by my health insurance? The amendment will maintain the limbo, and invite lots and lots of lawyers to town, to answer each of those questions.

The only alternative would be for Madison to say simply, "None of these arrangements are legal."

I would hope that, to be fair, I would become tax exempt as well.

At 1:40 PM, Anonymous Anonymous said...

For anyone who hasn't already, I encourage people to read the official decision. It's online at the New Jersey Supreme Court website. Just scroll down to Wednesday, October 25, it's the only case listed, Lewis v. Harris.


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