Comments on: New Jersey Supreme Court Rules In Favor Of Same-Sex Unions http://dancody.org/archives/new-jersey-supreme-court-rules-in-favor-of-same-sex-unions.html Progressive commentary & Wisconsin politics by Dan Cody of Milwaukee, Wisconsin. Sat, 31 Jul 2010 02:54:41 +0000 hourly 1 http://wordpress.org/?v=3.0.1 By: Scott http://dancody.org/archives/new-jersey-supreme-court-rules-in-favor-of-same-sex-unions.html/comment-page-1#comment-2934 Scott Thu, 26 Oct 2006 03:21:03 +0000 http://dancody.org/wordpress/?p=1029#comment-2934 I haven't followed this in New Jersey and only quickly scanned the article, but I wouldn't get my hopes up too high. The language "substantial relationship to a legitimate governmental purpose" says that the NJ court used intermediate scrutiny in deciding whether homosexuals are entitled to equal protection. Intermediate scrutiny makes the state provide a very good reason for discriminating, but as far as the Supreme Court is concerned, it is confined to laws that discriminate on the basis of sex. Homosexuality is relegated to "rational basis scrutiny," which says that a law discriminating against a group of people must only be <i>rationally</i> related to an <i>important</i> governmental objective. Legislation discriminating against gays has been upheld in the past, as the Supreme Court decided that homosexuals do not deserve the same protection as racial groups or women. In other words, it's pretty easy for a state to argue something like "tradition" as a rational reason for not allowing homosexuals full rights. Furthermore, just last year the Court flatly refused to apply equal protection jurisprudence in the case Lawrence v. Texas. In that case the Court struck down an anti-sodomy law, but did so on "right to privacy" grounds, refusing to use equal protection, which would have required moving homosexuals up from the "rational basis" level. So, see what happens. New Jersey might or might not get gay marriage. But there's virtually no chance this decision will be affirmed by the Supreme Court and applied nationally. I haven’t followed this in New Jersey and only quickly scanned the article, but I wouldn’t get my hopes up too high. The language “substantial relationship to a legitimate governmental purpose” says that the NJ court used intermediate scrutiny in deciding whether homosexuals are entitled to equal protection. Intermediate scrutiny makes the state provide a very good reason for discriminating, but as far as the Supreme Court is concerned, it is confined to laws that discriminate on the basis of sex. Homosexuality is relegated to “rational basis scrutiny,” which says that a law discriminating against a group of people must only be rationally related to an important governmental objective.

Legislation discriminating against gays has been upheld in the past, as the Supreme Court decided that homosexuals do not deserve the same protection as racial groups or women. In other words, it’s pretty easy for a state to argue something like “tradition” as a rational reason for not allowing homosexuals full rights.

Furthermore, just last year the Court flatly refused to apply equal protection jurisprudence in the case Lawrence v. Texas. In that case the Court struck down an anti-sodomy law, but did so on “right to privacy” grounds, refusing to use equal protection, which would have required moving homosexuals up from the “rational basis” level.

So, see what happens. New Jersey might or might not get gay marriage. But there’s virtually no chance this decision will be affirmed by the Supreme Court and applied nationally.

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