"Social Acceptance Cannot Be Imposed": State Civil Union Ruling May Cause Backlash

New Jersey's State Supreme Court ruled last week in favor of full equality under the law for gay couples, and directed the legislature to work up a law either authorizing same-sex marriage or civil unions within six months.

Cathy Young, a contributing editor at Reason magazine, noted in a Boston Globe commentary that the ruling received a mixed reception by gay rights groups, with some stating that the gay movement would settle for nothing less that 100-percent equality (i.e., legalized gay marriage):

Six years ago, when the Vermont Supreme Court handed down essentially the same opinion as New Jersey's high court has now, gay rights activists almost unanimously hailed the decision. But the Massachusetts Supreme Judicial Court moved the goalposts in 2003 by ruling that nothing short of same-sex marriage would satisfy the demands of equality . Civil unions are now seen by many as, in Goldstein's words, moving gays "from the back of the bus to only the middle of the bus."

Yet there are also plenty of gay men and women who say that as long as they and their partners can have the same legal rights and benefits as straight couples, they don't care what the state calls their unions. The decision of New Jersey's high court is a reminder that there are practical inequalities involved. While New Jersey recognizes domestic partnerships, marriage offers many additional privileges -- from survivor benefits for a deceased spouse to the presumption that a biological parent's spouse is the other legal parent of the child.

The word "marriage" carries a symbolic weight for both sides in the debate. Many people who favor full rights for same-sex couples nonetheless feel that society should accord male-female unions a special recognition -- a view that may be based on religious faith or on beliefs about psychological and biological differences between the sexes. For many gays, such views amount to a message of inferiority, and equal marriage is seen as the only guarantee of true social acceptance of their relationships as fully equal to those of heterosexuals.

The Massachusetts court stressed such acceptance in its gay marriage ruling. By contrast, the New Jersey court majority emphasized that social acceptance cannot be imposed from the bench , and can be much more effectively gained in legislatures and the court of public opinion.

Some leading proponents of same-sex marriage, such as writer Andrew Sullivan, see the New Jersey court's solution as a wise compromise that will avoid disastrous consequences. The 2003 Massachusetts ruling was followed by a series of constitutional amendments in other states that not only banned same-sex marriage but in many cases prohibited or crippled domestic partnership benefits as well. On the website of the Independent Gay Forum, Stephen H. Miller wrote, "Those with the luxury of living in true-blue states where such amendments aren't conceivable may have wished that the N.J. court had, like in Massachusetts, mandated full marriage equality delivered on a platter, the legislature be damned now. But the rest of us would have paid dearly for such a fiat."

In the past 15 years, American culture has made tremendous strides toward gay acceptance and equality. Yet, even leaving aside outright bigotry, there still remains much cultural conflict and ambivalence on the issue. Legislating civil unions today will not preclude further steps toward equality tomorrow. Using the law to push the culture further than it is ready to go might well lead to a reaction that will push gay citizens back.

Young's point is important, because support for gay rights has been growing in public opinion, with most people indicating general tolerance toward gays and lesbians.

For example, a 2004 Los Angeles Times poll found widespread acceptance of gay Americans. The survey found large majority favoring protections for gays against workplace discrimination, and a majority said that gays and lesbians should be able to serve in the military. Yet, a slim majority opposed adoption by same-sex couples, 72 percent opposed same-sex marriage, and 51 percent supported a constitutional amendment prohibiting gay marriages.

There's something traditional about marriage that Americans want to preserve, as Young notes in her commentary. Perhaps historic notions about marriage -- especially the notion that male-female legal unions are fundamentally about procreation -- will evolve toward a more permissive stance on gay marriage in the future. I don't think, though, that gay demands for equality in marriage should be placed on an equal plane with the historic struggle for equality among other groups, especially that of African Americans.