August 6th, 2013
Suppose that you believe that gay couples should have the rights that come with marriage and are governor of a state that supports marriage equality. But, being a Catholic Republican with presidential aspirations, you know that supporting gay marriage might come at a very high political cost. What do you do?
If you’re Chris Christie, you could support civil unions. You could veto a marriage equality bill while talking up the rights that come with your state’s civil unions bill.
And that worked for a while. In a pro-marriage state with about a 13% advantage for Democrats, Christie remains about 30 points ahead of his Democratic opponent in his campaign for reelection in November.
But the overturn of DOMA3 has raised complications. No longer do civilly united gay couples in New Jersey have the same rights as married gay couples next door in New York. This puts Christie in a contradictory position: claiming to support full equality for same-sex couples, but standing in the way of its implementation.
The most obvious solutions to this dilemma are not particularly politically palatable. If Christie were reverse and support marriage equality and ask for the legislature to forward him another marriage bill, this would not sit well with many who will be voting in the Republican primaries in 2016. And were he to quietly encourage Republican legislators to join with Democrats in overturning his veto, such an act could give the impression that he is a weak governor, unable to keep his own party in check.
So instead, Christie appears to have developed a strategy that could insulate him from the process: losing in court.
In 2006, the Supreme Court of the state of New Jersey ruled that “unequal dispensation of rights and benefits to committed same-sex partners can no longer be tolerated under our State Constitution.” However, they allowed the correction of that unequal dispensation by civil unions rather than marriage. As the federal government recognized neither structure for same sex couples, only state-granted rights were up for consideration and the court accepted ‘separate but equal’ arguments.
Now, after the striking down of Section 3 of the federal Defense of Marriage Act as unconstitutional, the situation has changed. Irrespective of arguments about the inherent inequality of separate institutions, there are now tangible and irrefutable differences between the two; marriages are allowed the benefits and obligations that come with federal recognition, civil unions are not.
And so a lawsuit has been raised, asking the New Jersey Supreme Court to revise their ruling in the light of these changes and to require the state to offer marriage equality. Christie is the defendant. And as best I can tell, he seems determined to lose.
Christie and his legal team have crafted an argument that, while complete legal nonsense, allows him to position himself as a champion of gay couples. He’s declared that the federal government is obligated to recognize civil unions as marriages. And, if it does not do so, plaintiffs should sue the Obama Administration instead of him.
Despite its chutzpah, it’s astoundingly smart. Christie can shift his presented stance from oppressor to advocate, merely by asserting an absurdity. It is he who wants his state’s gay couples to have federal rights, you see, and it’s the Obama Administration that is refusing equality. And it has the added benefit of positioning him to (as I suspect he will) champion the idea of federal civil unions recognition when he makes his presidential run.
Of course, this notion is extremely likely to fail in court. The Obama Administration lacks the authority to treat non-married couples as married, and Congress will not be passing legislation to do so. And, with seven years of history down the road and a marriage support rate in New Jersey of about 60%, the NJ Supreme Court is not going to decide that less equality is acceptable. Nor are they going to buy the wacky notion that “civil union spouses” are already legally entitled to federal recognition.
The most likely outcome is that the NJ Supremes will simply require the state to recognize same-sex marriages and Christie will defer to the will of the court. Voila, the issue disappears in New Jersey and Christie can continue to say that he supported equal treatment through civil unions but defended the traditional definition of marriage.