In 2006, the New Jersey Supreme Court ruled in Lewis v Harris that denying equal rights to same-sex couples violated the New Jersey Constitution. They gave the legislature two choices: marriage for all, or 'equivalent-to-marriage' civil unions for same-sex couples. The legislature chose civil unions. You either know already, or can guess, how that has turned out.
(This is the 2nd of a series examining cases currently before the courts in the matter of LGBT equal rights. Here's the first part, discussing DOMA suits and Proposition 8.)
After the cut: Turning the tables on the bigots.
After the failure last year of New Jersey's legislature to enact marriage for all, Lambda Legal reactivated Lewis, again bringing it before the New Jersey courts. They claim that the civil unions law now in effect is not an equivalent to marriage, and are demanding equal marriage rights as redress.
Yesterday,
Garden State Equality, along with five children's and family organizations, filed an amicus brief (pdf) with the New Jersey Supreme Court.
This wouldn't usually be very notable; amicus curiae ('friend of the court') briefs are often filed by interested parties. Except for the tack the brief is taking to challenge the existing law..
We are all-too-familiar with the opposition's main weapon against equal marriage rights: their false, emotionally driven ads and not-so-subtle insinuations about gays, children, and schools:
- Gay marriage will be taught in schools!
- They will recruit your children!
- Your children will no longer be safe!
The amicus brief is, in an interesting (and intentional?) twist, turning this argument on its head. It spends almost its entire 32 page argument hammering home the fact that children of same-sex couples, and teens who realize that they are LGBT, are seriously harmed in various ways by the inability of same-sex couples to marry. The main points of the brief:
- discrimination against the LGBT community causes psychological and social harm to children of same-sex parents, making them feel inferior to their peers and insecure about the stability of their parents' relationship.
- LGBT youth who, studies show, hope to marry when they grow up, are psychological injured by the denial of marriage equality.
- the denial of marriage equality causes increased stress for same-sex couples, which has an adverse effect on their children
- there are a host of measurable benefits that flow from equal access to marriage, including the power to ameliorate the harm described above. Currently, these children enjoy none of those benefits.
One of the first things the brief does is hurl the New Jersey Supreme Court's words right back at it, noting that in its Lewis decision, when talking about New Jersey's then-existent domestic partnership law:
This Court warned that there is no rational basis for "visiting on these children a flawed and inferior scheme directed at their parents."
The brief cites numerous of examples of courts protecting children from discrimination, notably citing Brown v Board of Education
Not surprisingly, courts are particularly hostile toward laws which cause psychological harm in children, recognizing the unique psychological and social harm they experience as a result of being made to feel inferior to their peers. Brown v. Board is the case which most famously recognizes the adverse psychological impact that discrimination has on children. Of course, there the court declared school segregation unconstitutional because such unequal treatment of children "generates feelings of inferiority as to their status in the community that may affect their hears and minds in a way unlikely ever to be undone."
You are likely aware of the insidious role 'threats' to children's welfare played in passing Proposition 8 in California. Proposition 8 was headed to a clear and decisive defeat until ads along these lines started to air. And the Maine campaign against equal rights followed right along in their footsteps, sometimes airing exactly the same ads.
A major portion of the Proposition 8 trial was devoted to this issue:
Child-focused arguments have been used to defeat LGBT rights measures since the 1970s, yet LGBT activists have been reluctant to directly address the issue during the public campaigns. The first such campaign led by Anita Bryant to overturn a pro-gay measure in Dade County, Florida was called the Save Our Children campaign.
And now, while it may only be in a courtroom setting, not on the airwaves, we have a solid attempt to not only reject those arguments, but turn them around on the bigots who thought them up.
Yes, children are indeed harmed. Yes, they suffer psychological damage. But no, not from the existence of equal marriage rights, but from its absence.
...the collective testimony paints a disturbing picture, leaving no doubt that children of same-sex couples and LGBT youth are harmed by the denial of marriage equality.
Not from being taught about same-sex marriage in school, but from being taunted as inferiors by schoolmates because of your parents' legal status.
The Civil Union Act can never serve as a legitimate vehicle toward equal protection because it perpetuates the impermissible message that same-sex couples and their children are somehow inferior to other families and, thus, unworthy of marriage.
This is a powerful argument. Along with the clear denial of equal treatment and equal status to same-sex couples themselves in New Jersey, it should be enough.
... experience now shows that the civil union law is a failed experiment that simply has not afforded, and can never afford, equal protection of the law.
Unfortunately, 'enough' is still a long time away. The initial case took four years, and I have no idea how long it will take this time for the case to make it to the New Jersey Supreme Court, be argued and ruled on.
There is no hope of getting an equal marriage rights bill into law for almost four years in New Jersey, since Republican Governor Christie has repeatedly said he would veto any such bill.
Godspeed.
p.s. In case you missed the SLDN letter to President Obama on DADT repeal diary of the day, which recently scrolled off the rec list, here it is