February 20, 2006

Deferring to history or making history.

The Supreme Court of New Jersey is currently hearing arguments in the case of Lewis v. Harris, a suit filed by seven lesbian and gay couples who have been denied marriage licenses by the state. The couples lost their case in a lower court, and it's anyone's guess how the New Jersey Supremes will rule on this one.

Knight Ridder's Stephen Henderson has filed an excellent story on the court arguments, putting them squarely in a tradition of debate over who in society has rights and who doesn't, and about the role of historical precedent in deciding that and other legal issues.

One of the key questions for the justices in New Jersey, and for courts all over the nation, is whether the long traditions surrounding marriage trump demands to eliminate eons-old gender restrictions in the name of equality.

"I think people who talk about history as a reason to deny gay marriage just don't really know what the history is," said Jon Davidson, legal director for Lambda Legal Defense Fund, the advocacy group that represents the gay couples seeking marriage licenses in New Jersey.

"People need to recognize that throughout our history, there were all sorts of people not allowed to marry."

But Katherine Spaht, a law professor at Louisiana State University and an expert on family law, said permitting gay marriage would constitute a change more profound than any other in history.

"Most of the changes, historically, have been at the edges of the concept of marriage, not at its core," Spaht said. "We've changed lots of things about the relationship between married people, but not as much about the fundamental idea of what marriage is."

For their part, at least four of the seven justices in New Jersey expressed serious doubts that history was a compelling reason to deny marriage rights to gays.

Chief Justice Deborah Poritz bluntly challenged the argument.

"It's a historical fact that marriage has been between a man and a woman, but it's also a historical fact that women were property and that women couldn't accuse their husbands of rape," Poritz said. "Why should we just defer to the historical basis?"

We strongly recommend reading the entire story.

If you want to find out more about the Lewis v. Harris case, Lambda Legal has links to briefs, the appeals court decision that's being appealed, newspaper articles about the case, and much more info if you go here.

Posted by Magpie at February 20, 2006 11:15 AM | GLBT | Technorati links |

I never really wanted the right to marry, but thanks for pointing me to that article which puts the case in what I consider the right frame: ongoing expansion of full human rights to more and more varieties of persons previously viewed as less than human.

Posted by: janinsanfran at February 23, 2006 07:21 AM