HALF A LOAF: THE NEW JERSEY RULING ON GAY MARRIAGE

I wrote the following analysis for TomPaine.com, which will publish it tomorrow:

The New Jersey Supreme Court’s long-awaited decision on same-sex marriage   today, October 25, was a Solomon-like decision that cut the baby in half, so to speak—giving a partial victory to gay and lesbian couples and a potential victory to marriage equality opponents.

While the majority ruling held that the Garden State’s constitution requires that "committed same-sex couples must be afforded on equal terms the same rights and benefits enjoyed by opposite-sex couples under the civil marriage statutes," it gave the state legislature 180 days to decide whether to call it a "statutory scheme" to achieve that equality "marriage," "civil unions," or something else. Three of the seven justices voted to end marriage discrimination immediately—leaving gay couples just one vote short of a complete victory. (To read the full text of the N.J. Supreme Court decision in a PDF file, click here).

In a February Zogby poll, a very large majority of New Jerseyans favored marriage for gay couples (by 56 percent to 39 percent). And even the most moderate national gay group, the Human Rights Campaign, dissented from what it called the "separate but equal" court decision, noting that "a federal law, the so-called Defense of Marriage Act, denies same-sex couples over 1,000 protections, and puts these couples at risk that they will not be recognized as families when they cross state lines." That is something the Jersey ruling does nothing to get around.

Steve Goldstein, director of the state’s gay rights organization, Garden State Equality, got it right when he said after the decision that "half-steps short of marriage—like New Jersey's domestic-partnership law and also civil union laws—don't work in the real world. Hospitals and other employers have told domestic-partnered couples across New Jersey: ‘We don't care what the domestic partnership law says. You're not married.’ Marriage is the only currency of commitment the real world universally understands and accepts."

Here’s why this issue is personal for me: My late partner of a dozen years, Hervé, was French, and when Bill Clinton signed his executive order banning entry by HIV-positive people into this country, my beloved partner after he was diagnosed with HIV could no longer come into the U.S. legally. Hervé and I never thought we needed the state to legitimize our love, but we would have married if we could as a self-defense measure—because the only exemption to Clinton’s ban on legal entry for the HIV-positive who weren’t citizens was if they had spouses or relatives who were. But because we couldn’t marry, I couldn’t be at Hervé’s side and take care of him during the last excruciating year of the illness that took his life, and he died, alone, in a Paris hospital.

The night following the Jersey court’s decision, Garden State Equality began running a TV ad featuring a plea from a dying policewoman, Lt. Laurel Hester, who was a lesbian. Gasping for breath, her hair gone from chemo, a gaunt Lt. Hester looks into the camera: "When you see this, I’ll have passed away from cancer," she whispers, "but the county refused to give death benefits to my partner. That’s why gay and lesbian couples are fighting for marriage equality."

But even though this is literally a life-and-death issue for some of us, the Christian right shock troops of the Republican voter turn-out machine have succeeded in placing anti-gay marriage referenda on the ballots of eight states this November. They hope to repeat their success of November 2004, when carbon-copy referenda hyped turnout among religious conservatives and helped turn key states like Ohio against the Democrats.

This year, in three battleground states — Wisconsin, where Democrats hope to pick up Congressional seats, and Tennessee and Virginia, where two U.S. Senate seats are in play—the GOP-Christian right’s vociferous campaigns against gay marriage as the unwanted product of "judicial activism" have just been given new ammunition by the New Jersey decision. The latest polls prior to the Jersey ruling already showed the gay marriage bans passing in every state.

In Tennessee and Virginia, this week’s polls show the difference the  two parties’ Senate candidates to be within the margin of error. So, even though the Garden State court’s decision is a half-a-loaf victory for gays, if it helps motivate increased religious right turnout by even a couple of points, that could well be enough to propel long-time gay-baiting Republicans George Allen (above left) and Bob Corker (right) to Senate victories, helping the GOP keep control of the upper chamber.

In New Jersey, where Democratic incumbent Bob Menendez (left) has a slim lead in the polls over mud-slinging Republican Tom Kean (below right), I was told yesterday by Nick Accocella, savvy editor of the insider newsletter New Jersey Politifax, that he expects a low voter turnout—and if the  court ruling spurs turnout among the large Catholic electorate, whose church has been preaching against gay marriage from the pulpit, that could help Kean, who favors the national constitutional amendment banning same-sex unions.

Moreover, the Jersey ruling comes right after the wall-to-wall, weeks-long media frenzy over the Mark Foley scandal, in which Democrats shot themselves in the foot by denouncing the Florida congressman as a "pedophile" (even though there’s no evidence to suggest it; the age of consent in the District of Columbia is 16, and the only ex-page to have said he had sex with Foley told the Los Angeles Times their tryst took place long after he’d left the page program.) The Christian right has used the Foley scandal to revive its favorite theme from Anita Bryant (left) and her 1970s "Save Our Children" crusade, arguing loudly that, well, what can one expect from homosexuals; they’re all child molesters. Over-the-top rhetoric from many Democrats helped fuel homo-hate.

These widely-broadcast canards from the religious conservatives, the incautious equation of Foley’s stupid predatory cruising with pedophilia in too much of the media, coupled with the New Jersey ruling, may well create an ugly anti-gay backlash among the electorate— just like the one after the U.S. Supreme Court’s striking down of the so-called "sodomy" laws and the legalization of gay marriage in Massachusetts, which laid the groundwork for the success of the 2004 anti-gay marriage referendums in hyping conservative voter turnout.

No one has specifically polled attitudes toward homosexuality since the Foley scandal broke. But if there is a new backlash, the New Jersey court decision, coming just 13 days before the midterm elections, may well unintentionally have helped deliver November victories to the most vigorous opponents of gay rights—without even having given gays a second state free of second-class citizenship for their loving couples. One step forward, two steps back?

P.S. One of the best arguments ever made in support of legalizing gay marriage was the remarkable speech made last July by Spain's Prime Minister, Jose Luis Zapatero (left), before its parliament, minutes before it voted to give marriage equality to same-sex couples. You can read that speech -- the most emphatic endorsement of the rights of those with same-sex hearts ever made by any head of government in any country -- by clicking here.