Mickey Kaus at Slate magazine has an interesting take on the most recent gay-marriage flap in New Jersey, which they appropriately title "
Dems Dodge Big Gay Bullet."
Now, for the purposes of this post, I'm setting all the morality-politics stuff aside. Don't want to discuss whether gay marriage is wrong, homosexuality, yadda yadda.
What I do find remarkable is that once again, the courts seem to be setting up a worst-case scenario that plays to certain very conservative bases very well. And Kaus notices this as well. His main take seems to be that since the court gave the state legislature 180 days to enact either gay marriage or civil unions (their choice):
"In other words, had the New Jersey Court gone all the way and required gay marriage, the next two weeks might have been filled with stories of happy gay couples from across the nation buying plane tickets to Atlantic City for their expected weddings. Only a Liberal Media Conspiracy of unprecedented self-repressive power could have kept the hype from driving cultural conservatives to the polls."
The kicker for this? Unlike Massachusetts (the previous "only state" for gay marriage) and the two states who enacted Civil Unions (Vermont, Connecticut), New Jersey lacks a previous-residency clause preventing people from zipping into the state, getting married, and zipping out. That makes New Jersey "open season" when and if their version passes and becomes law.
Kaus also points out how absurd Andrew Sullivan's take is when Sullivan claims the New Jersey Supremes were "not being activist":
a) The creation of a new protected class is pretty close to the paradigm of judicial activism; b) The final step taken by the New Jersey court may have seemed the "only logical option" only because of all the earlier activist steps the N.J. courts had taken to help bring the law to the point of giving some-but-not-full marriage rights to gays; c) As Amy Sullivan might argue, the breathtaking speed with which this sort of radical cultural change has gone from being unmentioned to being a litmus test for all rational people is one of the things that worries ordinary voters and turns them into cultural conservatives even though, were activists like Sullivan a little less self-righteous and condescending ("no logical option") these voters might be persuaded to try worthy experiments like gay unions and gay marriage.
So, the stage is set. Unfortunately for the Dems, I don't think Kaus is right, and I don't think the Dems can claim to have "dodged a bullet" here. Why?
First of all, while there is no massive movement of gays traveling to NJ to get married this moment, I'm sure that this news doesn't play well for Democrats in less-liberal states.
Second of all, while this may not have immediate effect in this election, what it effectively does is put gay marriage back into play across the nation for 2007 and 2008. How so?
- In Massachusetts, this might provoke another push for re-amending their constitution.
- In Vermont and Connecticut? Likely nothing (these two states have Civil Unions already, and I'm sure their legislature will just pass a "New Jersey Marriage = Our Civil Union" recognition clause to clarify).
- In New Jersey, the fight will be dirty, and loud, and quite possibly the legislature will be deadlocked. It's hard to predict. But you can rest assured that by 2008, New Jersey will have a constitutional amendment before its population.
Across the rest of the nation?
- 20 states currently have constitutional amendments barring same-sex marriage. In these states, unless a federal challenge (based on the full faith and credit clause) is filed with language indicating that the US Supreme Court is asked to invalidate such clauses even in state constitutions, the status quo is upheld. However, these states will be the easiest to rile up and fundraise from to fight the battle in other states.
- Another 8 states are currently debating such amendments. Expect fighting to get fiercer as the proponents of the argument are buttressed by the fact that now not just one, but two, state Supreme Courts have done this, and the argument "we need an amendment because a law will just be overturned" gets stronger.
- 40 states in total (including the 20 with constitutional amendments and 7 of the 8 mentioned earlier, Wisconsin being the lone exception) already have "Defense of Marriage" laws, which take advantage of the Federal law (which takes advantage of the clause in the Full Faith & Credit clause indicating that Congress defines the manner in which Full Faith & Credit may be given to offer states the option to not recognize same-sex marriages from other states), but without a constitutional amendment, the NJ decision again makes that a battleground. Several of these states, last time, passed the laws and voted down amendments because, as argument went, the law was sufficient. The more Supreme Courts use constitutional claims to overturn laws, however, the more pre-emptive amendments will pass.
Ultimately, too, while the New Jersey decision put off the big "gay couples are flying to NJ in record numbers to get hitched" news story, what it left in its place is something that ought to be scary for Democrats:
- Somewhere before 180 days, word that the New Jersey legislature is starting work on the legislation will make news.
- Somewhere before 180 days, the governor's signage (or lack thereof) of the bill will make news.
- If the bill somehow doesn't pass, expect that to make news. If so, expect the court's decision to make news too.
- 180 days from now, one way or another, expect that dratted news story to pop up.
- And expect lots of coverage of this come election time.
Ultimately, I think this hurts Democrats. It might not hurt them right this instance (which, I'm sure, has something to do with Kaus's sigh of relief since the decision passed right before an election that Democrats are desperately counting on) but what does it do in the long run?
(A) it gives activists from the other side a hot-button to push for funding. Expect lots of money to flow into those coffers. The money from Massachusetts had been trickling down as more and more states became content in their anti-gay-marriage amendments and laws, but now, those aren't a safe bet.
(b) it makes sure that this is a hot issue in 2008, when the House is up for grabs, and when the Presidency is once again on the line. And let's face it, the Democrats don't need to be facing the same issue that some have argued made the difference for George Bush driving highly conservative voters to the polls yet again.
I agree with Kaus, though I don't necessarily disagree with you.
The bullet dodged by the vaguaries of the ruling was a deadly one. In 2004 I don't think it was the ruling itself that got people irate, but rather the spectacle that occured afterward in, among other places, San Francisco.
Obviously, a lot of people were upset about the ruling. But it was the ensuing carnival that made the ruling more than just a ruling. It was percieved to be a defining moment wherein gay marriage wasn't going to just hit Massachusetts, but everywhere and all at once. It wasn't until afterwards that most people even realized that Massachusetts couldn't marry out-of-staters.
This ruling would have been a replay of that except that it would come out that these marriages would be valid, immediately opening the door to other states that accepted out-of-state marriage requirements (more relevently prior to this debate, the ages of the participants).
The ruling as it stands now was a punt from before the election to after the election. The perception being that it will give the system two years to shake it all out and the people two years to become more comfortable with the idea. It took away the sense of emergency, to an extent.
But I do agree with you that the ruling, as it stands, does not help and hurts Democrats. It forces Democrats trying to tilt to the center to take a stand on an issue that will still be relevent in 2008. I've little doubt that in her heart of hearts Hillary Clinton thinks gays should be able to marry, but now she's going to have to say otherwise to avoid pain at the polls. And it'll hurt at least some regardless.
On the other hand, two years is a long time in the political sphere. In 2004 immigration was a non-issue. In 2006 it's one of the biggest. The 2000 elections which were sure to be a referendum on Clinton's impeachment ended up being about everything but. It'll be a year-and-a-half between whatever New Jersey decides and the 2008 election. That's a whole lot of time for the damage to be minimized.
Had the ruling gone another way, it could have singlehandedly changed the tide of this election. Right now I just don't see that happening.
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