New Jersey Supreme Court on gay marriage

Here are some excerpts from the ruling.

What's interesting is something of a cascade effect. The court did not find the state had identified any harm from gay marriage, but it did find harm done to the state's plaintiffs — including a variety of state benefits, but, more notably, denial of federal benefits due to the federal government relying on the states to define who is married for purposes of things like "family and medical leave, Medicare, tax and immigration matters, military and veterans’ affairs, and other areas."  New Jersey does allow civil unions for gay couples, but …

“… partners in a civil union cannot … claim leave under the Family and Medical Leave Act if a partner becomes sick or is injured; they cannot get coverage for health benefits as a ‘spouse’ of a federal employee; and they cannot get certain Medicare benefits, including services in a skilled nursing facility for a spouse. […] Unlike same-sex married couples, civil-union partners also cannot file a joint federal tax return; they cannot be considered a ‘spouse’ for immigration purposes; and they cannot participate in a Survivor Benefit Plan as a spouse of an active or retired member of the military. All of these and other examples affect not only partners to a civil union but also their children.”

It's a brilliant argument, it seems to me, and, honestly, an accurate one.  The New Jersey state constitution promises equal protection under the law (as most state constitutions do), and the state's disallowal of gays being able to marry is responsible for their not being treated equally, without forcefully demonstrating "how it is tangibly or actually harmed by allowing same-sex couples to marry."

It's a linkage between state and federal rights that hasn't been discussed much before, at least in articles I've read on the topic.  It belies the argument made in the past that, just because the federal government recognizes gay marriage (or recognizes the rights of states to allow such a thing), it doesn't compel any state to do so — essentially, it's not the federal position compelling the state, but the state compelling itself because of the federal position.

It's a position I think we'll see made  in a lot of other places beyond New Jersey.