New Jersey Gov. Chris Christie’s administration filed a brief last week defending the state’s 2006 Civil Union Act, which grants gay couples all the benefits of marriage yet bars them from actually getting married. The brief is Christie’s first official legal statement on same-sex marriage. Given his apparent aspiration to be the next Republican nominee for president, it is especially too bad that the brief also may be the most incoherent defense of heterosexual supremacy yet. That’s saying something in an era in which lawyers have tied themselves in logical pretzels to defend indefensible anti-gay laws. Even by that low standard, the brief reads like a student paper written during an all-nighter. You’d think an aspiring president would take the task more seriously.
The Christie brief was filed in state Superior Court, in a suit brought by six couples who sued New Jersey for the right to marry in 2011. After the Supreme Court’s June ruling striking down the Defense of Marriage Act—the 1996 law that denied federal benefits to legally married same-sex couples—the New Jersey plaintiffs asked the superior court to allow gay marriage in the state to begin right away. They argue that civil unions are inherently unequal now that the Supreme Court has tossed the key component of DOMA. The feds are now granting benefits to gay spouses, but New Jersey’s civil union law prevents gay partners from receiving those benefits.
Christie’s brief defends civil unions in three ways. First, it argues that the state can rationally restrict the label “marriage” to heterosexual unions because it is “preserving” the definition of the word. Second, it contends that it’s actually the feds who are now blocking gay equality by withholding benefits to civil union partners. And third, it claims that the state courts should move very cautiously when contemplating a major change in social institutions—all fine and well except that, as the state itself admits, calling a gay union a marriage isn't much of a change anymore. In fact, throughout the brief, what’s most striking is that every last argument Christie’s administration makes, it then proceeds to blatantly contradict.
The brief starts by arguing that the state’s 2006 Civil Union Act—passed in response to a state court ruling in the same year that New Jersey had to either let gays wed or grant them all the attendant benefits of marriage—has a rational relationship to a compelling state interest, and is therefore constitutional. “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?
As if to illustrate this muddle, the brief proceeds to use the terms “partner” and “spouse” interchangeably, going so far as to argue that the civil union partners the state bars from getting married are nevertheless “spouses.” Indeed, the brief refers to “civil union spouses” in the same breath that it complains that the sovereign state of New Jersey should not be forced to cede the definition of marriage to include gays.
The idea seems to be to further New Jersey’s bizarre argument that it’s the feds who are depriving gays of equality rather than the state. Because the Civil Union Act intended to treat gay and straight couples equally, the brief argues, now that DOMA is dead, the federal government should give civil union partners full benefits “because they are spouses.”
The trouble is, New Jersey did not intend to treat gay couples equally. If it did, it would have actually made them spouses, granting them access to marriage—to the word itself. This is the precise meaning of the Supreme Court’s 1954 ruling in Brown v. Board of Education that separate is “inherently unequal.” Awarding equivalent material benefits does not erase the stigma of separating a class of people from the core institutions of American life.
The contradictions continue: Precedent, says the brief, also requires a court to exercise “maximum caution” in intervening where “highly significant policy considerations” are involved. Therefore the New Jersey courts should not invalidate New Jersey’s law. But the state’s entire position is that there is no policy consideration at issue. There’s no material difference between civil unions and marriage, just a distinction in name only—and names don’t matter. Why shouldn’t the court act, then? Christie isn’t just making an argument against judicial activism here either. When he vetoed a same-sex marriage bill earlier this year, he said the legislature shouldn’t decide whether marriage should include gay unions—only “people” should, by a direct vote at the ballot box. That might be fine for deciding how to fund a town library, but the whole point of constitutional rights is that they’re not subject to a vote.
Can the Christie administration get away with its absurdly twisted logic? In 2009 the Obama administration defended DOMA against a California couple’s challenge. Its brief was so poorly worded and overreaching—it appeared to compare same-sex marriage to incest and pedophilia—that the administration infuriated gay and straight activists alike. The outrage helped push the gay rights movement into overdrive. The Obama administration eventually had the sense to reverse course. DOMA’s demise in June, of course, followed. Luckily for Obama, the president emerged unscathed. If Christie doesn't get smart, he might not be so lucky.