Photo: Jeff Fusco/Getty
Gays Are Winning the Right to the Word
LGBT

Gays Are Winning the Right to the Word "Marriage," Thanks to the DOMA Ruling

By Photo: Jeff Fusco/Getty

Gay rights advocates celebrated another victory Friday when a New Jersey judge ruled that the state must allow same-sex couples to marry. The decision, which Governor Chris Christie immediately vowed to appeal, is the latest development in a 2011 suit which the plaintiffs revived after the U.S. Supreme Court invalidated the Defense of Marriage Act in June.

The gay couples’ attorneys have reliedquite understandablyon the argument that a post-DOMA world changes the circumstances of their case, and should compel the state to grant same-sex marriage immediately. That’s true, so far as it goes. But the significance of Friday’s ruling is much bigger than that argument suggests, and helps explain something that should have become more obvious to more people by now: There’s no such thing as equality for gay couples without access to the word “marriage.”

Back in 2006, the New Jersey Supreme Court held that the state must provide to same-sex couples, “on equal terms, the full rights and benefits of heterosexual couples.” But the court stopped short of mandating same-sex marriage, offering the legislature the option to either grant gay couples actual marriage, or provide a “parallel statutory structure by another name.” The legislature chose the second, less courageous route and passed the Civil Union Act, continuing to bar gay couples from using the word “marriage” for their unions. 

Now that the feds are treating gay marriages equally, the plaintiffs argued in their most recent brief, New Jersey’s earlier decision requiring equal treatment makes the civil unions option inadequate. If the state allowed gay couples to call their unions “marriages,” they would qualify for all the federal benefits now being offered to same-sex spouses in states that recognize them; by continuing to bar gay couples from access to marriage itself, New Jersey is failing to provide full rights on equal terms. 

In Friday’s decision, Judge Mary C. Jacobson agreed with the plaintiffs, declaring that civil unions “no longer provide same-sex couples with equal access to the rights and benefits enjoyed by married heterosexual couples” now that the federal government is providing benefits to gay couples. That, said Judge Jacobson, violates the New Jersey court’s 2006 mandate. “Under these circumstances,” she concluded, “the current inequality visited upon same-sex civil union couples offends the New Jersey Constitution, creates an incomplete set of rights that Lewis sought to prevent, and is not compatible with ‘a reasonable conception of basic human dignity,’” referencing the 2006 court decision.

The ruling is welcome news. But it shouldn’t have taken the Supreme Court’s DOMA decision to recognize that a “parallel statutory structure by another name” could never constitute equal treatment, and was never compatible with basic human dignitynot given the precedent set by the Brown vs. Board school desegregation ruling all the way back in 1954. That decision famously established the principle that separate is “inherently unequal.” But that phrase has become such a cliché that it’s easy to gloss over its real meaning. In its ruling, the Court grappled with what equality actually meant, since the question at hand was whether it was possible to provide genuine equality while keeping one class of people separate from the rest of society in as major an institution as education: “We come then to the question presented: does segregation of children in public schools solely on the basis of race, even though the physical facilities and other ‘tangible’ factors may be equal, deprive the children of the minority group of equal educational opportunities? We believe that it does.” Separate is inherently unequal, the Court ultimately said, because equal treatment is not just about providing the same “tangible” benefits, but about ensuring equal access to our common life. Creating parallel structures for different groups offends that principle on its facewhether for education or for marriage. 

Though Judge Jacobson relied for her decision Friday on the question of tangible benefits, her reasoning nevertheless reveals why access to the word “marriage” matters so greatly in this debate. It also helps explain how the intangible dimension of equality is every bit as important as the tangible. The state’s Civil Union Act, says the decision, “assigns to same-sex couples a label distinct from marriagea label that now directly affects the availability of federal marriage benefits to those couples.” Same-sex couples in New Jersey “are now denied benefits solely as a result of the label placed upon them by the State.” 

A 2008 report by a New Jersey state commission made this point clear five years ago, concluding that civil unions had failed to fulfill the court’s mandate of providing gay couples with the same rights and benefits as straight ones, since the separate status “invites and encourages unequal treatment of same-sex couples and their children.” This conclusion encapsulates the experiences of countless same-sex couples who’ve been unable to explain their relational status to a confused or incomprehending publicto hospitals, employers, insurers, car rental companiessolely because the government refuses to let them use the one word the whole world understands.

And this is the reason the word “marriage” matters to so many gay and lesbian couples themselves. There was cultural wisdom in creating and naming an institution whose symbolic significance helps do its bidding. Being married is not just a contractual status among two people but a collective identity. Its power lies in its symbolic authority to reinforce individuals’ commitments because the wider community around them knows what you should and shouldn’t be doing. Marriage functions in this regard as a collective superego by establishing widely shared norms and expectations that strengthen obligations to spouses and children.

But none of this works if you’re just “civil-unioned.” Indeed, marriage is such contested terrain precisely because opponents of gay marriage know the word mattersnotwithstanding New Jersey’s incoherent effort to argue that gays should just calm down since labels don’t make a whit of difference.

It’s taken time for Americans to absorb that most gay couples just want the same things as other couples. But over the last decade or so, visibility and familiarity have made that clear to more and more straight people, who increasingly understand that gay couples are more similar to them than they are different. Given that understanding, courts will find it harder and harder to ignore Brown’s lesson and to focus exclusively on tangible equality rather than deploying a more expansive view of equal dignity.

Brown changed not only the lives of African-Americans, but of all Americans, enriching our understanding of diversity and of the role of education in our common life. The gay rights battle is now doing the same with marriage. Marriage and equality are about more than tangible rights. And it’s one more gift of the gay rights movement that its efforts have helped teach America the true meaning of both.

Nathaniel Frank, author of Unfriendly Fire and a visiting scholar at Columbia’s Center for Gender and Sexuality Law, is writing a book called The Anti-Gay Mind.

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