December 14th, 2013
In October, the New Jersey Supreme Court ruled that same-sex couples must be allowed marriage on the same terms as heterosexual couples. Now New Jersey Democrats are seeking to pass legislation to change the laws on the books.
This is being presented as a protection should the Supreme Court decide to change its mind in the future, but it’s hard to see it as anything other than a political move having nothing to do with same-sex couples or marriage.
Republican Governor Christie somehow managed to come out of the marriage debate smelling like a rose. Although he had opposed – and vetoed – a marriage equality bill, when he opted not to appeal the decision, the public perception was that he was not extremist and many even believe that Christie “changed his mind” and supported equality.
This did not sit well with Democratic leaders in the state who, predicting Christie’s presidential aspirations, lost one of the points on which he could be portrayed as right-wing and out of the mainstream in a general election. They are gambling that a new bill could put cut Christie both ways: if he signs the bill, it would hurt him in the primary; and if he vetoes the bill, it fires up the base in opposition.
Unfortunately, and ironically, it is gay couples who could lose in the process.
I recognize the political reality that in some states it has been necessary to include religious protections in order to get legislation passed. I also recognize that the inclusion of such language implies that there is validity to the notion that somehow gay marriage imposes in some way on religious freedom. The best legislation is one in which same-sex couples simply are added to the framework without any histrionics or hand-wringing over ookie-spookie horrors that Teh Ghey might bring.
In New Jersey, the State Supreme Court decision did just that; it put marriage between same-sex couples on exactly equal ground with opposite sex couples. And any new bill, should it include religious protections, would enact limitations on same-sex marriage that are not currently present.
The executive director of Garden State Equality has opposed writing such a bill for exactly that reason.
In response, the legislators have changed the bill to reduce the protections granted. (NJ.com)
Lesniak said the new bill continues to have an exemption for religious organizations. But he said only church-affiliated groups that use an event space exclusively for their members would be able to turn away gay couples who wish to get married there. Clergy would not be required to perform gay marriages, but proponents say that exemption would be covered under the First Amendment anyway.
“It does not go as far as the bill that the governor vetoed,” Lesniak said.
“If you open up your facilities, you can’t discriminate.”
And therein lies the problem. A bill that did nothing more than change the language of the state law (as did California) to remove gender would possibly be an easy signature for Christie. It would merely codify existing law.
What this does, however, is define the exceptions to the law. By stating who is exempt, the bill implies who is not exempt.
As the law exists right now, there is no formalized conflict between gay rights and religious rights. While it’s likely that a religious fraternity like the Knights of Columbus could make a religious freedom case for refusing to rent their hall for a same-sex wedding, this is a matter of non-discrimination law, not marriage.
But by specifically excluding some entities – and telling the newspapers that this bill doesn’t protect the Knight of Columbus – this politicizes the marriage bill and announces a threat on the existing presumption of religious protection that the Knights have currently.
Of course, removing the Knights of Columbus protection from the previous bill – and announcing it – is designed specifically to invite a veto by the governor. I can’t imagine Christie signing the “Knights of Columbus must host gay marriages” bill. They’re trying to force his hand.
But it’s possible that Christie will not do as the Democrats in New Jersey plan. While he may not sign such a bill, he may consider a veto too difficult to explain.
And he has the option of ignoring the bill for 45 days at which time it becomes law without his signature.
Should he allow the bill to become law it is almost inevitable that someone will flounce down to the nearest Knights of Columbus to “I’ll show them” and demand to rent the hall. And then we will have one more item on the list of grievances that our opponents pull out to scream about how we are attacking them. Which will be true. And will suck.
But should they pass this bill, the Democrats may have more ammo to use against Christie should he run for President. At our expense.
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