N.J. Decision Won’t Shift Election, But Could Lead to Marriage Equality

But while Karl Rove will certainly try, this tactic is not likely to succeed. First, anything this close to the election is too little, too late – unlike in 2004, same-sex marriage has not dominated the headlines for the past year. Second, New Jersey’s decision doesn’t mandate marriage equality – so you won’t be seeing gay and lesbian couples fly to Atlantic City between now and the Election to get married. Unlike in Massachusetts (where the state supreme court declared it unconstitutional not to have same-sex marriage), last week’s decision more closely mirrors the Vermont decision that created “civil unions” in June 2000. By a 4-3 vote, the New Jersey Supreme Court instructed the legislature either to extend marriage to same-sex couples, or else create a parallel civil unions structure that provides the same rights.

The Court took a highly conservative approach of what is a “fundamental right.” A right is only fundamental, they argued, if it is “deeply rooted in the traditions and collective conscience of our people (22).” Although marriage is a fundamental right, they said, same-sex marriage is not because it’s not “traditional.” Of course, a woman’s right to terminate her pregnancy wasn’t rooted in tradition – but the Supreme Court passed Roe v. Wade. And as the dissent points out, there wasn’t a tradition of interracial marriage when the U.S. Supreme Court ruled that anti-miscegenation laws are unconstitutional.

More
http://www.beyondchron.org/news/index.php?itemid=3847#more