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Who Should Vote On Civil Marriage?

This post originally appeared as a guest column for In The Lobby.

As the New Jersey Senate prepares to vote on the “Freedom of Religion and Equality in Civil Marriage Act,” a number of editorialists have asked for my take on public opinion about gay marriage (or marriage equality, depending on one’s point of view). The polls conducted in the past year or two have been quite clear. At a gut level, the public is divided. As a policy issue, most people don’t really care one way or the other.

All the recent polls show support for same-sex marriage in the mid to upper 40s and opposition also in the mid to upper 40s, with the remainder having no opinion. If the state legislature decided to recognize same-sex marriage, a recent Eagleton Poll suggests that most residents would live with decision, while 4-in-10 would want to see the constitution amended to overturn it. However, this question only indicates an overall preference. It does not tell us how important the issue is in the context of all other issues. In other words, is this something that would get sizable numbers of voters up in arms? And my response is, not likely.

A Monmouth University poll from February indicated that a bare majority of New Jerseyans hold “strong” opinions on the issue – and again that is fairly divided, 25% in favor to 30% opposed. And only a subset of either faction would take the outcome of this week’s vote as a call to action.

Moreover, gay marriage was merely a blip on the radar screen of voter’s concerns during this year’s race for governor – a one or two percent blip to be exact. From a purely political standpoint, social issues become election issues only when nothing else is on the table. So, on the off chance that the Christie administration is able to plug the budget gap AND reduce property taxes, then perhaps gay marriage could be an issue in 2011.

So why not just put this up to a public vote and be done with it, as many opponents of gay marriage have called for? I am a strong advocate for including the public voice in all areas of public policy. The mode of expressing that voice, though, must be appropriate to the situation.

The public should absolutely have the final say on any situation that involves state borrowing. I also think a constitutional convention – where the public gives a straight up or down vote on the outcome – is worth serious consideration in New Jersey right now.

But the founders of our country – or at least James Madison in the Federalist Papers – were fairly clear that any issue affecting the rights of a minority should be determined within a deliberative setting. And general elections almost never meet the criterion of being deliberative – as anyone who followed this year’s vacuous gubernatorial race will attest.

A public vote on gay marriage also opens up the question of what other thorny issues should be put on the ballot. How about access to abortion? In a hypothetical situation where the U.S. Supreme Court overturned Roe v. Wade, I’m guessing that the same people who would support a public referendum on parental notification or limits on late-term terminations would be extremely wary of placing an all-out abortion ban on New Jersey’s ballot. It’s a slippery slope.

One key question in the current debate is whether civil union couples are being denied rights they are entitled to under the current law because their civil contract is not called “marriage.” The Civil Union Review Commission certainly heard many stories of civil union partners being denied rights accorded to them under the New Jersey Supreme Court decision in Lewis v. Harris.

I actually met with the Commission in August 2007 to discuss a potential study on civil unions. Ideally, the research would have interviewed a sample of civil union couples and a matching sample of married couples to see if the former were systematically experiencing any roadblocks that the latter were not. For various reasons (costs, logistics), the study was never conducted.

In the end, those empirical answers are immaterial for those who argue there is no compelling reason for government to create two separate structures to recognize the same contractual relationship. This got me to thinking about why the state even bothers to recognize marriage in the first place. (My penchant for asking these types of questions is probably the reason why I receive so few cocktail party invitations.)

I suppose if one spouse goes out to work, then there’s a reason for the state to recognize that the stay-at-home spouse is contributing to the economy and therefore should be afforded rights. But can’t that end up giving more benefits or, conversely, penalizing dual-earner families and single parents? (I can sense those party invitations rolling in about now).

I don’t know the answer to those questions, but it seems that at the end of the day government recognition of marriage is based largely on social convention. In other words, a major reason why government recognizes marriage today, specifically marriage between one man and one woman, is because governments through the ages always have.

I am not sure what this means, or should mean, for the upcoming Senate vote. But I do believe that it is always a good practice to periodically examine things that exist “just because” and ask why.

Now, if we could apply the same logic to New Jersey’s state constitution, we’d really be onto something.