photo by Bob Jagendorf
There are several overlapping ways we can interpret New Jersey Gov. Chris Christie’s decision to stop fighting same-sex marriage in the Garden State. I think the simplest is this: New Jersey will not be another California.
Christie has chosen not to be remembered as the governor who ran around his state screaming “Stop celebrating! Stop celebrating!” when loving couples rushed to courthouses and churches this week to formalize the most important relationship in their lives. Though some members of his party - especially its socially conservative base - do not yet understand, the governor has no other option if he is to have a future in either state or national politics beyond next year’s re-election campaign.
California remains the only state to have legalized gay marriage for a while before re-establishing the legal distinction between same- and opposite-sex couples. Thousands of California couples were married in a five-month period in 2008, after the state Supreme Court ruled in favor of gay marriage and before the state’s voters amended the California constitution to forbid it. That ban was ultimately overturned by the federal courts, and gay marriage resumed in California last year.
He doesn’t mention it very often these days, but Christie came into office in 2009 favoring a similar constitutional amendment to ban gay marriage in New Jersey, which had already enacted a civil union statute. The state’s politics moved in the opposite direction. Last year, the Legislature passed a bill to legalize gay marriage. Christie vetoed it. Lawmakers were expected to mount an effort to override his veto sometime between now and January 2014, had the courts not settled the matter first.
In dropping the state’s appeal, Christie recognized that his administration’s legal position was untenable. As a lawyer and a former U.S. attorney, Christie must have known this for months. Why the sudden change of heart? It was the state Supreme Court’s refusal to further postpone gay marriages while the matter was litigated. After that decision, Christie was no longer fighting to prevent gay marriage (which, to explain his veto last year, he said he now believes should occur only after a statewide referendum); he was fighting to actively take it away.
New Jersey’s Supreme Court ruled back in 2006 that same-sex couples are entitled to status equal to that of opposite-sex couples. At that time, only Massachusetts permitted same-sex marriage, while a handful of states had created “civil unions” in an effort to create a legal relationship that was a marriage in all but name. Under the Defense of Marriage Act, the federal government granted no recognition to same-sex couples, regardless of whether they were married or part of civil unions. New Jersey lawmakers responded to the 2006 court ruling by enacting their state’s civil union statute.
But the landscape shifted again a few months ago, when the U.S. Supreme Court ruled that the federal government must recognize same-sex marriages that are performed in jurisdictions that permit them. The ruling in Windsor v. United States did not extend to couples in civil unions - meaning New Jersey’s law once again failed to grant the same privileges to same-sex couples that are available to others.
The New Jersey Supreme Court’s 2006 precedent still stands, of course. It was therefore binding on Mercer County Superior Court Judge Mary Jacobson, who ruled last month that the state must permit same-sex marriage. Jacobson stayed her ruling for a month to allow the state time to appeal. Though the state Supreme Court agreed to hear arguments in January, it refused to extend the stay, thus allowing same-sex weddings to commence just after midnight on Monday.
By dropping the appeal, Christie eliminated the likely prospect that the state’s highest court would rule against him. We can view his decision as a lawyer’s acceptance of the law as it is, rather than as he might want it to be. Or we can view it as the decision of a competitive man - no politician and no trial attorney likes to lose - who does not want to end up on the wrong side of a closely watched case.
We can also view it as a grudging, mean-spirited way of snatching a prized victory from the gay rights movement. Same-sex marriage advocates would have loved to have a state Supreme Court declare that nothing short of marriage equality provides equal protection under the law to same-sex couples, now that the federal government distinguishes between those who can marry under their state’s laws and those who cannot. Such a ruling could have been helpful in other states. By withdrawing the appeal, Christie leaves advocates with only a state trial court’s decision that was guided by a precedent that predated federal recognition of gay marriage. That is considerably less helpful.
Finally, we can view Christie’s move as simple political pragmatism. The GOP’s social-conservative wing is increasingly out of step with the rest of the country on marriage rights, and nowhere more so than in the Northeast, where gay marriage is now nearly universal. President Obama’s acceptance of marriage equality in the 2012 campaign swung many African-American churches on this issue, all but ending significant resistance in northern urban communities. While lesser-known Republicans still have to worry about primary challenges, someone like Christie who wants to carry big urban states in the future simply has to get out of the bigotry box.
Ask yourself this question: If Christie continued to argue for a constitutional ban on gay marriage, would he have any serious chance as a presidential candidate in 2016? Would any Republican?
The GOP has all sorts of problems with its brand right now. In a growing number of places, adult children (like mine) of socially liberal Republican parents find themselves having to explain to acquaintances that while their parents are Republicans, they are not bigots. Legal and social attitudes toward gay marriage are evolving ever more quickly. Republican office seekers are going to have to evolve too, or be doomed. Christie’s evolution marks a trend that will probably play out fairly soon in places like Pennsylvania, Florida, Virginia and much of the Midwest. It won’t stop there.
In the meantime, all those happy couples should keep celebrating.