Statement of ACLU-NJ Legal Director Ed Barocas on New Jersey's Civil Unions Law
On February 19, 2007, as New Jersey's Civil Unions Law takes effect, same-sex couples and their families throughout the state will be afforded numerous rights and responsibilities that the State of New Jersey has previously denied them. In that way, it is a wonderful moment -- and a step toward equality. Yet it also marks a sad and unfulfilling moment in the history of our state, as it is the day in which we officially institutionalize discrimination.
Prior to the Civil Unions Law, our state had never before determined that all citizens are due certain rights and privileges, yet set up a separate system and label for the rights of one identified group of citizens as opposed to all others. If such a separate system of rights and an affixation of a different label was done on the basis of race, we would decry it, call it bigotry, see it as an affront to all New Jerseyans, and call it abhorrent and wrong. If it was done on the basis of religion, or ethnicity or gender, we would do the same. When it is done on the basis of sexual orientation, it is no less of an affront to all New Jerseyans, and no less abhorrent and wrong.
Giving a historically rights-deprived group of citizens, at long last, the rights of enjoyed by all others, but then labeling them differently from that of the majority, is a state-sanctioned act of setting certain classes of citizens legally apart. It expresses that certain citizens may deserve rights but are not worthy of the labels that have historically been affixed to those rights. Indeed, I take issue with the use of the term "separate but equal" to describe the creation of a "parallel" scheme of rights for a certain group of citizens. Separate is never equal. Instead of attaining "first-class citizenship," the separated group is permitted to rise only to "second-class citizenship" or, at best, only to a "separate class of citizenship."
Further, when the government treats people differently, it emboldens private entities or citizens to do the same. For example, there have been numerous instances of families who had rights under the domestic partnership law that were not recognized because a hospital or other private entity simply didn't understand or accept any label different from "marriage." In addition, bullying in our schools based on sexual orientation or perceived sexual orientation is a devastating problem, as evidenced by the case of L.W. v. Toms River Regional School Board, now before the New Jersey Supreme Court. Children, for a myriad of reasons including race, ethnicity, weight, and religion often have to deal with other children who wish to seize on what sets them apart, and the government only exacerbates those situations when it gives its official seal to setting certain children and their families apart from the majority and literally calling them different names.
To those who say that the question of whether or not to permit same-sex marriages is about protecting families and the children of New Jersey, I completely agree. The question is about the integrity and value of every child and every family in New Jersey. Segmenting the rights of loving families from those of other loving families undermines and devalues family relationships. Marriage equality is a family value. And so many little children will now end up asking their parents to explain why the government has set their families apart from all their friends' families, and why their family is shut out from a label that other families enjoy.
The reality is that words do have meaning. Were this not the case, there would be no need for debate; same-sex couples -- deserving of the rights of marriage -- would simply be included within the term marriage.
To same-sex couples, the word "marriage" means ensuring actual equality, whether or not certain individuals within society choose to socially accept them. Others in society see the word as important because they find the idea of same-sex couples being included in marriage as distasteful. They view that term as something "we" have ownership over and in which "you" cannot be included -- i.e., that only certain people should have access to that term and that others should be denied that access and that right. In that way, for both sides, the fight for equal terminology is not about social acceptance; it is about legal and state-sanctioned differentiation of one group from all others.
While the Civil Unions Law explains why same-sex couples should have rights previously denied them, it does not explain why New Jersey needs to label this group's rights differently from all others. What state interests could exist for using a different term other than those founded in bigotry or the concept that a certain segment of society is simply "uncomfortable" with the fact that the rights that they have historically been afforded are now being afforded to others? Unfortunately, New Jersey's legislature and Attorney General are setting precedent on such repugnant bases. Indeed, if such reasons were accepted for setting up separate, parallel schemes of rights when remedying discrimination in the past, our state would be legally fragmented based on race, religion, gender and numerous other harmful distinctions.
The New Jersey Legislature made clear when it passed the Law Against Discrimination that our state's goal is nothing less than the "eradication of the cancer of discrimination." Yet that august body -- and our state attorney general -- have now institutionalized discrimination by setting apart one group' rights from the rights of all others. Until full equality is obtained, the ACLU-NJ will continue to lobby our state legislators and officials not to merely take the path of least resistance, but to take the path that most reflects the true spirit of New Jersey and our state's sense of fairness, equality and decency.