Realizing I could not get a marriage equality bill passed in New Jersey, I fought for a civil union bill.
By Wilfredo Caraballo
In 2006, the New Jersey Supreme Court determined that our equal protection laws mandated that gay and lesbian relationships were to be given the same rights and privileges as those of heterosexuals. The court concluded we are not free to discriminate on the basis of the relationship.
The court did not mandate the name to be given to the relationship; instead, it left the label to the Legislature as long as the rights were equal. The U.S. Supreme Court has decided that only those relationships labeled ?marriage? are entitled to equal protection of the law when it comes to federal benefits.
Where does that leave us in New Jersey? Simple: By calling gay and lesbian relationships by a name other than ?married,? we are depriving those relationships of federal benefits. When we deprive individuals of federal benefits based on the name given to that relationship, we are not treating them equally and are thus running afoul of the New Jersey Supreme Court?s mandate.
How do I know this? I was one of the prime sponsors of the bill creating civil unions in New Jersey.
When the New Jersey Supreme Court issued its decision in 2006, I believed the right thing to do was to pass a marriage equality bill. I sought support from my colleagues in the Legislature. It wasn?t forthcoming. Many of my colleagues were concerned that we would be moving too quickly.
Realizing that I could not get marriage equality, I then fought for the civil union bill. It was my belief that we had to do something.
While I know that many of my gay and lesbian friends and supporters were not thrilled with my decision, they too understood that we had to do something. Many of us believed we would be violating our oaths if we did not respond to the court?s mandate.
I was na?ve when I started law school, never having met a lawyer prior to the orientation program at New York University. (Having been raised in the South Bronx, I?d say this was a good thing.) One of the basic skills we focused on immediately was ?statutory interpretation.? How to read a statute? This didn?t make sense to me; after all, a statute says what it says, the law is the law.
We also were supposed to learn how to interpret cases. It didn?t take me long to realize that the language of statutes, and cases, were in fact susceptible to multiple interpretations. It turns out, that?s how lawyers earn a living: It takes two interpretations to have a case.
Once one understands, in the words of Supreme Court Justice Oliver Wendell Holmes, that ?a word is but the skin of a living thought,? it is easy to appreciate just how difficult it is to write a law, draft an opinion or just make a statement that can be understood as meaning the same thing to all who read the law, opinion or statement.
There are a number of ways to approach the task of interpreting the language of the law. There are those, some of whom sit on the U.S. Supreme Court, who believe that the interpretative task lies in simply giving what is called a ?natural? reading to the language. That is, what do the words normally mean?
While this conclusion may seem absurd, remember that just recently the U.S. Supreme Court decided the Voting Rights Act has outlived its usefulness, even though Congress had determined otherwise when it re-authorized the law by a huge majority.
Then there are those who believe we should look to what the authors of the legislation or an opinion sought to accomplish. We call that ?legislative intent.? Practically speaking, we uncover the intent so that we can then read the words in a way that furthers the legislative purpose.
Irrespective of the approach one takes to interpreting the law, it is clear that civil unions are not the equivalent of marriage as decided by the U.S. Supreme Court. Couples in civil unions may be deprived of federal benefits. The New Jersey Supreme Court said we may not discriminate based on the name given to the relationship; the Legislature created civil unions intending to vest equal rights in all relationships.
We can use the ?natural? approach to ascertain what was said, or we can look to legislative intent. Either way, both the U.S. and New Jersey supreme courts have spoken and the Legislature failed; the only way to satisfy both decisions is to declare that the label of marriage must be available to all relationships.
Wilfredo Caraballo was public advocate and public defender in the Florio administration and spent 12 years in the Legislature.
Source: http://blog.nj.com/njv_guest_blog/2013/07/nj_civil_union_author_time_to.html
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