"Dems Dodge Big Gay Bullet?"

Says ... asks ... Mickey Kaus:

It seems to me the New Jersey Supreme Court has -- perhaps non-accidentally -- denied Republicans the powerful base-mobilizing weapon that a ruling mandating gay marriage would have given them. Sure, New Jersey proponents of gay marriage have been more or less invited to return to court if the legislature doesn't call the equal package of rights it grants gay couples "marriage." But by kicking the nomenclature question to the legislature, and giving them 180 days to resolve it, the New Jersey justices avoided having the state instantly become, in AP's pre-anticipatory words, "the nation's gay wedding chapel."

That is, we don't have the instant spectacle of people suddenly going to New Jersey to get married. (Going to New Jersey to get married sounds like the least cutting-edge thing in the world to do, doesn't it? But throw in the gay and nothing's boring.)

The first link in Mickey's quote is to Dale Carpenter's analysis of the New Jersey court's decision. Carpenter doesn't see much of a way for the New Jersey court, once it's stepped onto this particular slippery slope, to keep from going all the way to a right to same-sex marriage:

[H]aving started down the path to full equality for gay individuals and couples through a variety of state statutes and judicial decisions, the state could not give any good reason why it should continue to differentiate. For example, the court noted, the state has adopted a domestic partnership system that gives gay couples a list of rights also given to married couples. But yet the domestic partnership system does not extend other rights of married couples to these same-sex couples. What’s the basis for granting a select list of the rights but not the others?...

It is difficult to understand how withholding the remaining “rights and benefits” from committed same-sex couples is compatible with a “reasonable conception of basic human dignity and autonomy” [recognized in the state domestic partnership law]. There is no rational basis for, on the one hand, giving gays and lesbians full civil rights in their status as individuals, and, on the other, giving them an incomplete set of rights when they follow the inclination of their sexual orientation and enter into committed same-sex relationships....

The state had nothing left in defense of the rights gap except an unadorned “tradition” that the state itself had steadily undermined in its public policy....

Seen in this light, the New Jersey court’s quotation from Justice Brandeis’ famous dissenting opinion praising the states as “laboratories” to “try novel social and economic experiments” is a bit ironic. The New Jersey court now holds that once the state substantially experiments with gay equality it must go all the way, ending the experiment.

So the court shifts the attention back to the legislature. If the legislature doesn't choose full-scale marriage, things will go back to the court, and I think you know what to predict. The court has at least slowed down the process and involved the legislature, giving people a chance to respond -- adapt? -- to the change the court has set in motion. Mickey Kaus suggests that the court's motivation was not quite that kind of interest in the political process, but a politically engaged concern about how the opinion would affect the next election.

As it is, what the court did is complicated enough to mute the effect. And there are no exciting pictures to show on the news and splatter on YouTube.