Best move for pro-equality NJ politicians may be none at all

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It sounds like a parable out of Sun Tzu: “The key to winning is to do nothing.” And that might turn out to be the best tactical move for New Jersey politicians hoping to solidify marriage rights for same-sex couples in the state.

Superior Court Judge Mary Jacobson’s decision in late October legalizing same-sex marriage, and the governor’s subsequent decision not to challenge it, brought an abrupt end to a long conflict between lawmakers and Governor Chris Christie’s office.

The legislature passed a marriage bill in 2012 only for Christie to veto it, saying such a matter should be decided directly by the voters. The legislature was in the process of summoning up enough votes to override the veto when Jacobson’s ruling seemed to make it a moot point.

Now it seems the battle is won without the necessity of firing a shot. The veto override, or the drafting of an entirely new but similar bill, could still go ahead, but cautious lawmakers might decide that both the easiest and least politically fraught thing to do is just let the matter stand at the court ruling and move on. After all, the Jacobson decision means that marriage equality has been legal in New Jersey all along—just unrecognized until now.

And as several politicos noted in the New Jersey Star-Ledger this week, the aftermath of the court decision actually leaves couples with more rights than they would have had under the assembly bill. Pushing for a veto override again would, for example, resurrect the bill’s exemptions for religious institutions, something that doesn’t seem to exist in the post-Jacobson legal landscape.

“We’ve got some of the strongest marriage protections in the country, and to pro-actively go out and insert some exemption that allows religious discrimination, I don’t know why we would do that,” the executive director of the gay rights group Garden State Equality, Troy Stevenson, told the Ledger.

But for some it feels like a squishy kind of equality, one based on a judge’s interpretation of seemingly unrelated statutes rather than a black and white, proactive measure like the bill would provide. Also at stake is the opportunity to score a high-profile political victory over Christie on an issue where pollsters say the governor’s views are at odds with those of most New Jersey residents. Polls predict a landslide victory for Christie in his reelection bid on November 5, and he’s an early favorite for his party’s presidential nomination in 2016.

Or perhaps New Jersey need simply bide its time and wait for a possible future court ruling to put the ambiguity to bed once and for all. The June 2013 Supreme Court decision striking down most of the federal Defense of Marriage Act read to some pundits and legal scholars like a tacit endorsement of marriage equality nationwide, and many are awaiting the day when the high court may hand down a ruling that will end the state-by-state legal battles over marriage one way or the other. Cagey politicians who do nothing now may eventually validate the wisdom of the ancient general: “If I wait patiently by the river, the body of my enemy will float by.”

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