The New Jersey Supreme Court held yesterday that denial of the legal benefits of marriage to gays and lesbians violates the equal protection guarantee of the New Jersey Constitution. At the same time, the court declined to hold that gays and lesbians have a right to "marry." The court concluded that a right of equal access to the legal benefits of marriage does not necessarily entail a right to characterize the relationship as "marriage." Hmmm.
Among the many intriguing facets of this decision is that the vote was 4-to-3. The three dissenting justices did not argue that gays and lesbians do not have a right to the legal benefits of marriage; rather, they argued that gays and lesbians are also entitled to equal access to the word "marriage." Thus, the court was unanimous in holding that New Jersey could not constitutionally (under the state constitution) deny gays and lesbians the legal benefits of marriage.
We have come a long way. I remember the first time a student at the University of Chicago Law School (where I teach) wrote on a classroom blackboard "Come to the First Meeting of Gay Law Students Association. Wednesday. 4:00. Seminar Room C." This was roughly twenty-five years ago. I was stunned to see such a message. Although I had previously had one or two openly gay students, the idea of a Gay Law Students Association was completely novel to me. One of my faculty colleagues was outraged, comparing it to a Heroin-Users Law Students Association. It was, he said, a criminal conspiracy. Three years later, that professor (knowingly) wrote Supreme Court clerkship recommendation letters on behalf of the student who had written that initial announcement.
Within a decade, the University of Chicago Law School had banned any employer who discriminated on the basis of sexual orientation (including the United States military) from using the Law School's placement facilities (as it had already banned employers who discriminated on the basis of race, religion, and gender) and established the Stonewall Scholarship for students who intended to devote part of their careers to defending the rights of gays and lesbians. By that time -- the late 1980s -- neither of these steps was seen as particularly controversial.
A few years ago I attended a dinner with twenty more-or-less randomly selected students. When I asked how many would vote as legislators to authorize gay and lesbian marriage, 90% said they would. The very idea of gay and lesbian marriage twenty years earlier would have seemed preposterous. Most students would have considered such a suggestion tantamount to proposing today that people should be allowed to marry cats. Most students would have been completely taken aback by such a suggestion, and likely replied, "that's just not 'marriage'."
This is what is meant by "raising one's consciousness." I'm old enough to remember when blacks couldn't drink from the same water fountain as whites and when a woman Supreme Court justice, an African-American secretary of state, an openly gay congressman, and a Hispanic attorney general seemed unthinkable. Today's law students will no doubt regale their children with their memory of a time when, believe it or not, gays and lesbians couldn't marry. Pretty amazing.