No Dissent on Equal Rights

Supporters of same-sex marriage, no doubt a little disappointed that the New Jersey Supreme Court didn't go a smidge further and order the state legislature to recognize same-sex marriage as such, should take solace nonetheless in the language, rationale and voting math of the ruling. This was a very good day for their cause, even if they didn't get precisely what they wanted.

I'm sure that most people, when they saw that the case came down to a 4-3 vote, figured that the four-Justice majority represented the Court's more liberal or progressive wing. I also suspect that most folks figured that the three dissenting justices were against the idea of same-sex marriage in general and against the idea of equal rights for same-sex couples in particular. Wrong. Those three dissenters weren't the Scalia, the Thomas and the Alito of this story. Turns out they were the ones who would have immediately conferred upon same-sex couples in New Jersey the right to be married.

This means that the majority ruling in Lewis and Winslow et al v. Harris represents the Court's most conservative voice -- and it also means that every single one of the seven justices believes today that New Jersey may not discriminate against same-sex couples when they decide to commit their lives to one another. For same-sex advocates, that is progress by any measure, especially when compared with the way similar arguments have been received by high court justices in other states. Wednesday's ruling isn't perfect. But it could have been a whole lot worse.

Part of the reason for the result here was the difference in tone of the legal debate. New Jersey's long and distinguished record of recognizing civil rights seeped into the arguments offered by the Attorney General's office. For example, tucked away on Page 48 of the 90-page ruling, the Court's majority noted that the "State does not argue that limiting marriage to the union of a man and a woman is needed to encourage procreation or to create the optimal living environment for children." New Jersey's decision not to make these arguments made seem like common sense to you. But it is an astonishingly different argument from the one made, say, by New York state attorneys when they fought their battle over this soil earlier this year.

In the New York same-sex marriage case, the Court's majority made a number of conclusions based upon the arguments of state attorneys. For example, the New York Justices declared that: "The Legislature could rationally decide that, for the welfare of children, it is more important to promote stability, and to avoid instability, in opposite-sex than in same-sex relationships." New York's highest court also stated: "The Legislature could rationally believe that it is better, other things being equal, for children to grow up with both a mother and a father." Not surprisingly, given this rationale, same-sex marriage proponents did not fare as well in June in New York as they did Wednesday in New Jersey.

There was more in the New Jersey decision to mark its distinction from most of what we have seen before in same-sex marriage law. On page 54 of the ruling, for example, the Court's majority wrote: "In protecting the rights of citizens of this State, we have never slavishly followed the popular trends in other jurisdictions, particularly when the majority approach is incompatible with the unique interests, values, customs, and concerns of our people." The four Justices in the majority made this observation in response to the best argument that New Jersey state lawyers had made against affording the same rights to same-sex couples that opposite-sex couples now get-- that it would make New Jersey's marriage laws different from almost every other state.

And on page 51 of the ruling came the most poignant passage of all¿one that ought to make same-sex marriage supporters grateful, if not completely satisfied, and one that ought to make same-sex marriage foes worried about what might happen the next time this issue makes to this court. "Gays and lesbians work in every profession, business, and trade," the majority Justices wrote. "They are educators, architects, police officers, fire officials, doctors, lawyers, electricians, and construction workers. They serve on township boards, in civic organizations, and in church groups that minister to the needy. They are mothers and fathers. They are our neighbors, our co-workers, and our friends." Imagine what the dissenters would have said.

It's true that the result of Lewis and Winslow et al v. Harris for same-sex marriage proponents isn't the total victory that same-sex marriage advocates had hoped it would be. I'm fairly sure they are a little worried now about all the language near the end of the majority ruling that oozed judicial "deference" to the legislature as it begins now to pick up the pieces left by the case. And now while fighting this rearguard action they almost may have to contend with a push by same-sex marriage foes to amend the state constitution so that Wednesday's ruling would be rendered obsolete.

But it's not like they'll be fighting these next fights alone. In the shadows of the coming debate, lurking like the Ghosts of Landmark Rulings Past, will be each of the seven justices of the state's highest court. And any legislator who feels as though the Court has gone as far as it will ever go, and will go no further in requiring the recognition of same-sex marriage, will be venturing forth at his or her own peril. End result aside, this is a Court that is unanimous about equal rights for gays and lesbians.

Andrew Cohen writes Bench Conference and this regular law column for washingtonpost.com. He is also CBS News Chief Legal Analyst. His columns for CBS can be found online here.