- The equal protection clause of the New Jersey Constitution affords same-sex couples the same rights to the benefits and priveleges of marriage [and, I would add, duties and responsibilities] as opposite-sex couples.
- The question of what to call this, i.e. 'marriage' or something else, should be left up to the 'democratic process', i.e. the legislature.
- they found that the state had no genuine purpose in reserving marriage for heterosexuals.
- They refused to call marriage a fundamental right, but ruled that the unequal distribution of rights 'can no longer be tolerated' under the New Jersey Constitution.
Of course, the NJ SC is more than a tad conflicted also, since they want to uphold equal rights for gay and lesbian citizens, yet still keep the door opened (or is that shut, the metaphor gets squishy here) for the NJ legislature to deny gay and lesbian citizens the right to marriage.
And the American public is rather conflicted as well. Most recent polls show that a small majority opposes 'gay marriage', while a majority supports equal rights for gays and lesbians.
I've written a couple of articles and given a few talks (some of them were job talks, and I never seemed to get the job - go figure!) that try to explain this contradiction through the concept of heteronormativity. They try to say something like the following:
When we think about the power of presumptive heterosexuality as a norm in society, as a norm that structures expectations and privileges, and which shapes institutions and material reality, it starts to become clearer how one could seek to uphold the “traditional” conception of marriage, while believing in the basic rights of all Americans. Heteronormativity operates in such a way as to make all Americans presumptively straight. That presumption of heterosexuality that heteronormativity writes into the world, loosens the tension between support for gay civil rights and opposition to gay marriage. Viewed from within the heteronormative worldview, there is no contradiction between equal rights and the elimination of gay marriage.
Heteronormativity elucidates the claim that gay marriage “threatens” or “undermines the sanctity” of “traditional marriage,” since what gay marriage does is challenge the very heteronormativity of straight marriage. To acknowledge gay marriages would be to deny the fundamental privilege of heterosexuality, of which marriage and the family are supposed to be the ultimate expression.
Understood through the power of heteronormativity, it thus makes a certain kind of sense to say that one can be against gay marriage and not be disrespectful of lesbians and gays.
Now, what does all this mean politically? For me, it means a resistance to heteronormativity. At one point in time, when 'gay marriage' was an internal debate within radical democratic, queer, and (mainly) lesbian and gay political movements, then staunch opposition to heteronormativy actually meant an opposition to the notion that 'gay marriage' would be a panacea (since making gay marriage legal just heightens the illegitimacy of all other non-marital sexual relations). In an important sense, however, that time has passed. Today, when things like the FMA are floating around out there, when just about every state in the union has got themselves a DOMA law, and, most importantly, when the real possibility of legalised same-sex unions is on the horizon in some places and reality in one, then the challenge to heteronormativy requires the demand for legalised same-sex marriages.
I have a whole other argument for why 'civil unions' are the perfect analogue for Jim Crow (even if they are also an obvious and significant advance in civil rights for many lesbian and gay peopole); they are the very heart of 'separate but equal' institutions. But you're already sick of me by now (if you even got this far), so I'll leave that for another day.
UPDATE1: Be sure to read 'overeducted lawyer's thoughts in the comments. Point no. 3 is particulary significant, and I love the idea contained in point no. 4.
UPDATE2: The little blogroll thingy hadn't updated, or I would have noticed that Dan was already talking about this with his usual articulate eloquence.