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Wise strategy on same-sex unions—A Commentary by William Eskridge, Jr. '78

This op-ed originally appeared in the November 21, 2006, issue of The Star-Ledger.

Wise strategy on same-sex unions
By William N. Eskridge, Jr. and Darren R. Spedale

The New Jersey Supreme Court has ruled that the state will become the fourth in this country to give lesbian and gay couples the legal rights and duties of marriage. The Legislature is under a constitutional obligation to provide lesbian and gay couples the same legal rights and duties as married straight couples.

But the court left it to the Legislature to determine what to call the institution: marriage, civil unions or something else. And that's where the state's attention now shifts, with legislative leaders expected to make a decision on the matter soon, perhaps by the end of the year.

In the short term, the court's decision will fan the flames of the gay marriage debate. Fallout may not be limited to New Jersey. On Election Day, voters in seven states decided to amend their state constitutions to prohibit gay marriage and, in some cases, civil unions as well. Only Arizona voters rejected the move.

Gay marriage remains an emotionally divisive issue because it involves intense identity politics on each side. Many lesbians and gay men feel like second-class citizens if the state does not recognize gay marriage. Many traditionalists are just as invested in being members of a society that considers gay marriage morally problematic.

The justices got it right. Insisting on constitutional equality for lesbian and gay couples, they have reversed the burden of political inertia by requiring the Legislature to address this issue. But by not insisting on the title of "marriage," they have respected the Legislature's primacy in determining important issues of public policy. Traditionalists will have a major role in deciding what institutional form state recognition will take.

Neither pro-gay nor pro-tradition persons can claim the court's decision to be a complete victory. In the longer term, this is a virtue, not a vice, of the decision. As evidence, we point to the experience of the first modern recognition of committed lesbian and gay unions -- Denmark's Registered Partnership Act of 1989, which gave same-sex couples the rights and responsibilities of marriage.

Many citizens believed that the new law would destroy marriage for everyone. Indeed, Danish marriage had already been in decline in the 1970s and 80s: The marriage rate was falling, and the divorce and nonmarital childbirth rates were soaring. Yet after legal recognition of same-sex unions, the marriage rate increased, the divorce rate fell and the rate of childbirths outside of marriage declined for the first time in half a century. Similar trends occurred in the other Scandinavian countries that extended the rights of marriage to same-sex couples in the 1990s.

Today, few Danish traditionalists believe their faith, or the fate of their children, is imperiled by state recognition of committed lesbian and gay partnerships. We even found that some heterosexual Danish couples were inspired to get married by the enthusiasm and happiness that their lesbian and gay friends felt in their own legal unions.

Scandinavia also offers lessons for gay rights advocates who want absolute equality now. That is not the way social change works. It took a generation of concerted public education before the Danish parliament was willing to consider same-sex marriage -- and even gay-tolerant Denmark compromised with the title of "registered partnership," not "marriage." In America, laws forbidding different-race marriage were overturned only after most religious Americans changed their minds about the morality of miscegenation.

This process is what we call equality practice. Fundamental change in social and even legal mores usually proceeds through the incremental success of a series of limited social changes.

If the New Jersey Legislature adopts a civil union law within the next few months, the Scandinavian experience suggests that anti-gay attitudes will be changed. Friends, families and co-workers of gay couples in Denmark had often previously struggled to understand how persons of the same sex could enjoy a committed sexual union, but the new law in 1989 gave them formal opportunities to relate to lesbians and gay men as legally committed couples and with increasing frequency as families with children. As people become more comfortable with same-sex families in their communities and it becomes clear that same-sex unions do not harm society, civil unions will eventually be converted into "marriages." (After a decade of registered partnership, Sweden is now on the verge of taking this last step.)

The New Jersey Supreme Court's decision will now require the Legislature to deliberate about the gay marriage issue. Both sides should view this as an opportunity not to be feared. Traditionalists need to understand that lesbians and gay men are forming families that should be treated respectfully by the state. Gay rights advocates need to understand that traditionalist opposition to gay marriage is usually not the result of prejudice but rests upon moral commitments that need to be recognized as well.

Darren R. Spedale and William N. Eskridge Jr., a Yale Law School professor, are authors of "Gay Marriage: For Better or For Worse? What We've Learned from the Evidence" (www.gaymarriagebook.com), published by Oxford University Press.