Why New Jersey Governor Christie Should Read the Proposition 8 Ruling

It is likely that by the end of this week, both houses of the New Jersey legislature will have approved same-sex marriage. The whole exercise may be for not, however, because Republican Governor Chris Christie has promised to veto the legislation. Christie believes that only heterosexuals should have the opportunity to marry and that same-sex couples should settle for civil unions.

Two weeks ago, when it became clear that the Democratic-controlled legislature would vote in favor of same-sex marriage, the governor proposed that the issue be put before voters as a state constitutional amendment. Drawing an analogy between the current fight for marriage equality and civil rights strugles during the 1950s and 1960s, the governor suggested that civil rights activists in the south back then would have been happy to work through the ballot box rather than "fighting and dying" in the streets.

Not surprisingly, black leaders in the state criticized the governor's statement and urged him to brush up on his history because voters in southern states in the 1950s and 1960s approved of forced segregation by large numbers. It might also serve Governor Christie, a former U.S. attorney, to brush up on his constitutional law.

The last time voters considered a same-sex marriage constitutional amendment was in 2008, when California voters approved Proposition 8, a measure the Ninth Circuit Court of Appeals last week found to be unconstitutional.

Interestingly, the laws regarding the recognition of same-sex relationships in California and New Jersey are essentially the same. Same-sex couples who register their relationships with the government, as either "civil unions" in New Jersey or "domestic partnerships" in California, are in theory entitled to all of the rights and benefits afforded to married couples under state law.

Ever since the New Jersey legislature enacted the civil unions statute in 2006, marriage equality proponents in the state have claimed that those unions perpetuate the unequal treatment of gay people under the law. That view was confirmed in 2008 when the New Jersey Civil Union Review Commission issued an extensive report detailing the ways in which government officials, employers, and insurance companies discriminate against same-sex couples who enter into civil unions.

Some have argued that the current fight for same-sex marriage in New Jersey is merely a dispute over a label because the only disagreement is whether same-sex couples can use the term "marriage" in referring to their relationships. But when the Ninth Circuit struck down Proposition 8 as unconstitutional, it made clear that there is an "extraordinary significance" to the government's official designation of some relationships as "marital."

The court also explained that it is irrational (and therefore unconstitutional) for the government to grant same-sex couples all of the rights and benefits that it affords to married couples under state law while simultaneously withholding the term "marriage" from them. If it is irrational to do so in California, then it is also irrational to do so in New Jersey. All of this raises serious constitutional questions about Governor Christie's continued defense of civil unions as a substitute for same-sex marriage.

New Jersey has come a long way in its legal recognition of same-sex relationships. A decade ago, the state offered no legal protections to same-sex couples. In 2003, the legislature approved a domestic partnership bill that offered same-sex couples a limited menu of rights and benefits. That legislation was replaced three years later by the civil unions law. Last week's ruling by the federal appellate court in California makes clear that alternative recognition schemes like domestic partnerships and civil unions are good, but they are not good enough. One hopes that Governor Christie is paying attention.