Bench Memos

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More on New Jersey Ruling on Same-Sex Marriage


One further point (before I run off to an all-day conference—my apologies for the piecemeal remarks, but I don’t know if and when I will find the time for a comprehensive critique):


The court states (on page 62):  “However the Legislature may act, same-sex couples will be free to call their relationships by the name they choose….”  What a curious statement from a court that purports to be solicitous of the public’s right to determine the public meaning of “marriage”.  Of course, short of fraud, perjury, or other violations of law, all sorts of lies are legally permissible.  I may generally call myself the King of Transylvania if I wish to.  But I wouldn’t expect a court to make an entirely gratuitous statement approving of my lie.


What the court’s statement reveals, I think, is that it (quite reasonably) views as trivial the fundamental distinction that it has drawn between the “right to marry” and the “rights of marriage”.  In other words, by ruling that same-sex couples must be accorded the substance of marriage, the court does not regard it as a lie for such couples to describe themselves as married.  In short, while pretending to do otherwise, the court is, as a practical matter, redefining marriage to include same-sex couples.


Tags: Whelan


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