Many are closely watching the debate over same-sex marriage right now, particularly last week’s defeat of a marriage-equality bill in the New Jersey Senate and the start of the Proposition 8 trial this week in California.
In both instances, gay-rights advocates differ on strategy. In New Jersey, activists plan to file a lawsuit claiming the state’s civil-union law does not afford the same treatment as marriage — which was the mandate of the original ruling of the state Supreme Court in 2006. After that ruling requiring equal treatment for gays and lesbians, the state legislature enacted civil unions — which aren’t always treated as “marriage” by a range of entities, such as insurance companies and healthcare providers.
Some activists argued the Senate should not have voted on the gay-marriage bill if there weren’t enough votes to pass it, believing it would demonstrate that the issue doesn’t have popular — or at least legislative — support. Others argued that it was better to get senators’ positions on the record so that constituents can effectively lobby them — or withhold financial support.
However, the activists’ strategy to go back to court — legislative defeat in hand — is a viable one. Particularly since they also have the 2008 report by the New Jersey Civil Union Review Commission, which found “that the separate categorization established by the Civil Union Act invites and encourages unequal treatment of same-sex couples and their children.”
The report continues: “In a number of cases, the negative effect of the Civil Union Act on the physical and mental health of the same-sex couples and their children is striking, largely because a number of employers and hospitals do not recognize the rights and benefits of marriage for civil-union couples.”
In California, some activists are concerned that no matter how the case is decided, it will be appealed through the federal court system — all the way to the U.S. Supreme Court. The specific concern is, considering the current composition of the highest court, it might hand down an unfavorable decision for gays and lesbians — and that no ruling is better than a bad ruling. They argue that it would have been better to wait until President Obama had a chance to appoint a few justices to the court to improve the case’s odds.
On the other hand, there’s always the chance that waiting won’t do any good anyway. Putting the case out there improves visibility — even if it solidifies the opposition.