Will Baude reviews a current court case:
Last week, I had a post that was skeptical of the claim that current law requires the federal government to recognize state civil unions as marriages. Reading through this brief recently filed by the state of New Jersey, I am no longer so sure. (The brief is a defense of New Jersey’s civil union law — which allows same-sex couples to have civil unions with the same legal status as marriage, but not technically marriage itself — but the brief also argues that the federal government is required to recognize the civil unions.)
For one thing, state civil union laws sometimes contain language that defines the word “spouse” to include unioned couples in addition to married couples. (See, e.g., the Illinois civil union law I discussed here.) And some federal provisions use the word “spouse” rather than the word “marriage,” although it is not clear they intended for “spouses” to include people who are not in a “marriage.”
For another thing, it almost looks like New Jersey law already defines civil unions as a form of marriage, by stating that marriage includes civil unions.
Nathaniel Frank points out a contradiction in the state’s brief supporting the status quo:
“To reserve the name of marriage for heterosexual couples,” says the brief, makes sense because “altering the meaning of marriage” would, in the words of the 2006 ruling, “render a profound change in the public consciousness of a social institution of ancient origin.” The definition of marriage has “far-reaching social implications.”
Oops, except then it doesn’t. The brief then does an about-face, insisting that the nomenclature distinctions have no meaning at all—an effort to show that the law is not rooted in anti-gay prejudice.
A “long-standing precedent,” the brief explains, dictates “that courts look to essence, not label.” It cites a 1915 court case finding that a law’s import “lies in the essential nature of the work done rather than the names applied to those engaged in it.” The brief goes to great lengths to drive home this point, even dragging in the Bard: “Shakespeare wondered what’s in a name?; for purposes of federal criminal law, the answer is ‘nothing.’ Substance rather than nomenclature matters.” And: “A rose by any other name is still a rose.” And: “Calling a dog’s tail a leg will not give the dog five legs.”
Let’s imagine for a moment that it’s true that nomenclature doesn’t matter a whit. If that’s right, then it’s the strongest case yet for the other side. If there is nothing in the name “marriage,” then New Jersey’s Civil Union Act has no rational relationship to an important state interest. The label is the single distinction the law makes. How can that both serve a compelling governmental interest and mean absolutely nothing, at the same time?
The brief also “contends that it’s actually the feds who are now blocking gay equality by withholding benefits to civil union partners.” Timothy Kincaid suspects that Christie plans to lose the case:
Christie and his legal team have crafted an argument that, while complete legal nonsense, allows him to position himself as a champion of gay couples. He’s declared that the federal government is obligated to recognize civil unions as marriages. And, if it does not do so, plaintiffs should sue the Obama Administration instead of him.
Despite its chutzpah, it’s astoundingly smart. Christie can shift his presented stance from oppressor to advocate, merely by asserting an absurdity. It is he who wants his state’s gay couples to have federal rights, you see, and it’s the Obama Administration that is refusing equality. And it has the added benefit of positioning him to (as I suspect he will) champion the idea of federal civil unions recognition when he makes his presidential run.
The Dish 