IF NOT NEW JERSEY, then (besides Massachusetts) where? A liberal state with no explicit prohibition on same-sex marriage in state law, and no law barring state officials from performing such marriages for out-of-staters--New Jersey would seem the perfect state in which to persuade the highest court to duplicate the Massachusetts holding. There the supreme judicial court declared that no rational basis exists for restricting marriage to opposite-sex couples, and that same-sex marriage must, then, be enacted posthaste.
Yet it didn't quite happen that way in Trenton. Instead, in Lewis v. Harris, handed down October 25, the Supreme Court of New Jersey went for what, in the present state of the marriage debate, passes for a Solomonic compromise: Hold that same-sex couples must be given all the legal benefits of marriage, but leave to the legislature the issue of whether the resulting legal relationship is to be called "marriage." This is similar to the path followed by the court in Vermont in creating those states' "civil unions." For the New Jersey court, no "substantial" basis exists for withholding from same-sex couples the benefits of marriage. Yet one may exist for reserving the name "marriage"--and the social symbolism that goes with it--to opposite-sex couples.
Remarkably, for an opinion that insists on equalizing the rights of same- and opposite-sex couples, Lewis v. Harris nonetheless recognizes that the U.S. Supreme Court's landmark 1967 decision Loving v. Virginia, striking down racial restrictions on marriage, does not create a "right to marry" independent of all traditional and societal understandings of what marriage is. "The heart of the  case," the New Jersey court notes, "was invidious discrimination based on race, the very evil that motivated the passage of the Fourteenth Amendment."
"Despite the rich diversity of this State," the court continues (passing the hanky), "the tolerance and goodness of its people, and the many recent advances made by gays and lesbians toward achieving social acceptance and equality under the law, we cannot find that a right to same-sex marriage is so deeply rooted in the traditions, history, and conscience of the people of this State that it ranks as a fundamental right." New Jerseyans are good, it seems, but not that good.
After so holding, the court turns to the passage of the New Jersey Constitution that most closely tracks the U.S. Constitution's equal protection clause. For any suspect government classification (such as the one reserving marriage to male-female couples), New Jersey weighs "three factors: the nature of the right at stake, the extent to which the challenged statutory scheme restricts that right, and the public need for the statutory restriction."
The court then sums up the extensive rights that New Jersey has bestowed upon same-sex couples, and notes the "remaining" rights that are not included in the state's Domestic Partnership Act. Is there a reason, the court asks, for not sliding all the way down this slope?
"The State does not argue that limiting marriage to the union of a man and a woman is needed to encourage procreation or to create the optimal living environment for children." California did not press an affirmative case for traditional marriage either; that state's intermediate appeals court nonetheless deferred to legislative judgment. But New Jersey's legislature has not said that marriage is one man and one woman, and it has said that distinctions based on sexual orientation are to be removed. Given this legislative background, it takes perhaps only a smidgen of judicial activism to conclude: "It is difficult to understand how withholding the remaining 'rights and benefits' from committed same-sex couples is compatible with a 'reasonable conception of basic human dignity and autonomy.'" The court then ordered the legislature to correct its oversight in the next 180 days.
Despite the admittedly "extraordinary remedy," the four-judge majority nonetheless scolds its three dissenting colleagues, who wanted to order up same-sex marriage right now, Massachusetts-style. "We cannot escape," it says, "the political reality that the shared societal meaning of marriage--passed down through the common law into our statutory law--has always been the union of a man and a woman. To alter that meaning would render a profound change in the public consciousness of a social institution of ancient origin."
Speculation will swirl as to what drove this strange mixture of activism and restraint. It could be a set-up: If the legislature responds by enacting Vermont-style civil unions that are not called "marriage," the court can, in inevitable litigation to follow, hold that the legislature had not shown a "substantial" reason for a difference of nomenclature. The result would be a Massachusetts-style same-sex marriage mandate, only without an election-year backlash. Or it could be they blinked: Public resistance to same-sex marriage is being felt in the courts, and the New Jersey Supreme Court is, by its own admission--nay, proclamation--sensitive to changes in "times and attitudes."
David M. Wagner teaches constitutional law at Regent University, and blogs at ninomania.blogspot.com.