Fri 27 Oct 2006

New Jersey Gives Something To Think About

This is going to break all sorts of rules I set myself for this blog. Chief amongst them, not talking about contemporary politics. Screw it. Rules are made to be challenged and I need to write this thinking down somewhere.

I was reading through the overnight news this morning, catching up on the world, when I noticed quite a lot of comments about a decision from the US: the New Jersey State Supreme Court handed down an interestingly couched decision about same-sex marriages. Originally I though this was great, then I thought it was tricky, then I just thought a lot. All in the space of 12 hours. Challenging day.

For the record, I am not married — or, at least, I don't believe I am. There have been a couple of big parties in my past that I didn't remember everything about the next morning, but I would have thought if I'd done something of that magnitude at one of them, somebody would have phoned by now wondering when I would be home and could I pick up some milk on the way — I am also not gay. I like women; they're one of my favourite hobbies. So I have precisely zero personal stake in these decisions (even less for US ones, but there's an Australian angle to this as well). I do, however, have a number of friends, both male and female, who are openly homosexual; some of them are living in stable relationships with their partner of choice. So, for those friends and somewhat out of a sense that there should be some overarching sense and justice to society, I have been paying some peripheral attention to same-sex marriage and civil union stories for a number of years.

Anyway, back to my day: After reading the various news accounts that oscillated between "world comes to end in NJ" and "victory for forces of Light and Good" down to "Court says no to same-sex marriage", it became clear that their were nuances involved (as always in legal decisions, but apparently this one had take-home lines for both sides). Distilling most of what I've read today down to a couple of interesting discussions, this thread over at The Volokh Conspiracy, particularly this Dale Carpenter post seem like a good summary from people who understand the law. Meanwhile, some interesting thinking and the subsequent comments over at John Scalzi's site give some food for thought, whilst generally being in favour of the result.

I didn't go hunting for much in the way of "dancing in the streets" or "sky is falling" reading (although you can't avoid it totally), since I was looking for analysis, rather than argument. I was actually surprised at the Scalzi comment thread — it raised more issues and was more civil and balanced than I expected. A credit to his readership and possibly Scalzi's moderating skills at removing wildly off-topic and inflammatory comments, before they take over the thread, without inhibiting dissent. Before somebody wonders if I get much of my legal reading from Science Fiction author sources, note that I am not a lawyer and I am interested in what other intelligent people have to say. Science Fiction fans (and particularly authors) are not a bad group to hang out in if you want to read analysis, thinking through hypotheticals and extrapolating from a set of facts. Their opinions may not be legal ones, but that's irrelevant.

As I mentioned in the introduction, I initially thought this looked like a huge step forward. Then I read the decision (note to self: quit reading legal decisions, the writing style is just wrong). Until today, I had seriously not thought that the "marriage" word was that big a deal. Again, I'm not affected by this sort of thing, so I may not be a realiable judge of the relative importance of the various aspects. To my mind, equal privileges and responsibilities (the latter is important, by the way) was the big thing. In both US and Australian (and other countries') society, a lot of law relates to the legal entity of "a married couple". By agreeing to live together and share everything, the law offered certain benefits and, in the event of a dissolution, protections to the two people involved. Aged care benefits, superannuation, visitation rights, the power to make life-or-death decisions in the event of a partner's illness: the list goes on and on and they are all tied frequently to a traditional concept of marriage.

In my head, at least, the problem is partly wooly language. There is a the faith-based idea of marriage as a vow before God, following the principles of the Bible and so forth. Then there is the legal union which acknowledges and supports the role a couple play in society. I have enough problems with most religions that the first idea is of little interest to me, except that it exists somewhat pervasively and unfortunately encroaches terribly into the second idea. To the point that laws are written which say you only get the legal support if you adopt the Biblical approach. Replace Biblical with your holy book adjective of choice, but the western laws I am most familiar with come dangerously close to being driven from the Christian New Testament perspective when you break them down. Hmm... I have wondered off-track now, since it's also reasonable to say our laws are built on community values and traditions and they just happen to coincide with the dominant religion of the founding people of the country (I can write a tortured sentence like that and end up including Canada, Australia and the US without further harm to the English language).

Anyway, my feeling had always been that the "traditional" idea of marriage was fine for the majority of people, but it had no place providing privilege in the eye of the law. Keep the two separate and I was quite happy to say marriage meant the thing that happened in a church or a civil ceremony (since an acknowledged lack of religion has to be a valid choice in a secular state). However, the New Jersey court decision makes me think I may be still stuck in the past. The wording is a major issue?! It actually makes sense, on some level. The "equal but separate" designation does create the potential for problems; why not just use one phrase to eliminate those? But on a strictly logical level, the potential for discrimination in the "equal but separate" case is purely a human failing, not a legal one, and I have some sympathy or the arguments that the courts cannot force something to be socially acceptable, so a decision about requiring the union to be called marriage — which can only be yes or no — is not offering them (the justices) a sufficiently finely-grained alternative.

In six months, it will be interesting to see what the New Jersey Legislature come up with the satisfy the requirements of the decision. Make no mistake, I believe they will take the full six months, since there is no evidence to suggest that the politicians who double as law makers in that state have any interest in advancing this situation to a useful conclusion.

So, how does this relate to Australia? Here at home, same-sex marriages and civil unions are impossible. I'm not sure you can say they're illegal, since by definition, in federal law, the concepts involve a man and a woman. It's not illegal for a dog to be a cat, just impossible. The Wikipedia page on this same-sex partnerships in Australia seems fairly clear and matches my understanding gained over time. I'm neither a lawyer nor a law maker, so I cannot vouch for the complete accuracy, but I can read and have lived enough years to have seen this issue evolve (from unclear to clearly bad, sadly). Don't be fooled by the long list of state accomodations for same-sex (and even opposite-sex, de facto relationship) couples. A large number of benefits to married couples come from federal legislation and that absolutely does not acknowledge homosexual partnerships. There is little chance of a change at the federal level in the near future, since both major political parties are against same-sex unions. The federal government even went so far as to overturn a law that helped same-sex couples in the Australian Capital Territory earlier this year. [Aside as to why this was possible: the ACT isn't a state, but it does have some level of self-governance combined with periodic interference (I think it's called "assistance", technically) from the national government; it's a weird-ism of the Australian political geography. Still, they are better off representationally than, say, residents of Washington, DC.]

The only realistic hope I see of a change in policy (and laws, damnit!) at the national level is if there is a swing towards logic in the US. Other countries help, too, but having one of our largest trading and political allies show that even they can see with fresh eyes might just help sell a few more clue-bats in Canberra. Changing attitudes in society is something that happens all the time. The problem is that governments, in particular, tend to be made up of very long-term participants who literally span generations: they are governing a country who is, in the majority, younger than they are. They are trying to apply principles that may have been accepted wisdom even 20 years ago and they are trying to keep their jobs, which requires remaining popular. The popular, conformant majority can stand up for themselves; elected leaders must also represent the quiet (even silent) minorities who do not have the loud voices or the platform to make themselves heard. Making waves draws attention to yourself. People in insecure positions are unlikely to do so. Those in power do not have that problem and they are required to represent everybody, not just their fans.

I don't know why this problem annoys me so much. I am generally pretty apathetic towards so many problems in the world. Generally depressed about them, but not actively fixing them much either. "Government" actually seems broken to me in many places around the world (including Australia and the US). Governing systems are necessary and I really like the theory and history of policitical science, but today's governments seem to be a lot less about governing and more about politics and money than I would like. But if we cannot get something as simple as two people, regardless of the chromosone distribution, supporting each other fitted into a system fairly (I was going to say "correctly", but that is too open to interpretation), we have no chance of solving some of the really hard problems.

I'm no doubt going to regret hitting Publish on this one by tomorrow morning. Still, let's get it out there. I want something to look back at in a year so that I can work out if I really am misreading reality.

Topics: law, politics