In our opinion: Faulty gay marriage reasoning

Published: Tuesday, Oct. 1 2013 12:00 a.m. MDT

The nation's dispute over the definition of marriage is rapidly turning into an effort to force every state, and every individual in every state, into accepting the view that it is right and proper for a man to marry a man, or for a woman to marry a woman.

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The nation's dispute over the definition of marriage is rapidly turning into an effort to force every state, and every individual in every state, into accepting the view that it is right and proper for a man to marry a man, or for a woman to marry a woman.

Consider the decision on Friday by the Superior Court of New Jersey, the lowest-level court within the state. In 2006, a New Jersey Supreme Court required the state to grant the benefits of marriage to couples of the same gender. The New Jersey Legislature, in turn, created civil unions. This allowed homosexual couples in New Jersey to receive all state benefits accorded to men and women who are married. But neither the Legislature nor the voters have seen fit to change the state's law around the definition of the word "marriage."

But in Friday's decision, Judge Mary Jacobson of the New Jersey Superior Court said that all of that wasn't enough: the state must redefine “marriage,” she said.

By what reasoning? Through an extremely contorted view of last June’s United States Supreme Court decision, Windsor v. United States. The Supreme Court had ruled that for the purpose of federal benefits, like administering federal tax refunds, Congress needed to recognize state-sanctioned marriages between two men, or between two women.

But Windsor did not require states to change their laws on the subject. A same-sex marriage solemnized in Maryland, for example, will not be recognized under Virginia law. That's because Maryland is one of 13 states and the District of Columbia to recognize such marriages. It’s important to note that in only four of those states – Maine, Maryland, Massachusetts and Washington – have the voters themselves assented to the redefinition of marriage. And in three of them – California, Connecticut and Iowa – the will of the people has been disregarded as judicial opinions forced the recognition of such unions.

Virginia, by contrast, is one of 35 states, including Utah, in which legislators or citizens have passed laws or have amended their state constitutions to define marriage as a union of one man and one woman. However, a few of those 35 states, including Colorado, Hawaii and Illinois, recognize civil unions even as they continue to define marriage as a union of one man and one woman.

Until Friday's court decision, New Jersey (along with New Mexico) stood out for neither recognizing nor prohibiting same-gender marriages.

Judge Jacobson’s faulty reasoning is not likely to stand. Republican Gov. Chris Christie has vowed to appeal the decision, which directs the state to permit same-gender marriages as soon as October 21. Furthermore, that date is likely to be put off as the state appeals the judge’s action.

But the decision stands as an example of faulty reasoning that must be challenged. The definition of marriage is not a matter of rights or equality for adults. Instead, marriage is society’s institution for the creation and nurturing of children. Judges must stop thwarting the views of those states and individuals who favor policies that protect this important institution.

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