I don’t see this opinion causing the kind of backlash that would single-handedly save the GOP at the polls, as Mickey Kaus has suggested a ruling in favor of gay marriage might; opposition to civil unions isn’t nearly as broad as opposition to gay “marriage” by that name. (It’s not hard to see why — civil unions aren’t a sacrament.) In granting marriage rights but leaving the semantics to the elected branches of New Jersey’s government, the Court showed the sort of political savvy here that perhaps judges shouldn’t have.
From a policy perspective, I sort of hope the elected branches do call it marriage; the spread of new institutions like domestic partnerships and civil unions strikes me as more likely to undermine the institution of marriage than opening marriage to gays. This could cause some legal shockwaves, though; unlike in Massachusetts, there’s no law against non-resident marriage in New Jersey, so legalizing gay marriage there is likely to lead to lawsuits in other states. The Lambda Legal lawyer who represented the plaintiffs in this case made it pretty clear during oral argument that he’d like to challenge the constitutionality of the federal Defense of Marriage Act, which says that states don’t have to recognize gay marriages from other states. I doubt that challenge would succeed in federal court, but the possibility does make the Hatch amendment option that was bandied about a couple years ago seem more attractive.
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