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Gay people have exactly the same right to marry – as the state creates the institution and administrates it – as straight people, but it’s hard to see that in the current fog of war. As is the case with so many passionately argued issues, words are important. More properly, exact language is important. Whoever controls nomenclature in a debate controls the perception held of it. People became much more incensed about “affirmative action,” for example, when opponents called it “reverse discrimination.” “Gay marriage” similarly represents an attempt to characterize an apple as an orange. By including the sexual orientation of the intendeds in the appellation, the opponent of “marriage extended equally to all” attempts to render a marriage between two gay people as something other than it is between two straight people. As offensive to reason as this is, even some supporters of more fairness for gay people – the editorial board of this periodical among them – are guilty of buying into this seductive quagmire by endorsing half measures which, while admittedly representing a bird in the hand, have the effect of perpetuating the naming used by the enemy. “Domestic partnership,” while representing an improvement for gay people in New Jersey, is gala apples, not just “apples.” As a man who married a woman, I know I can’t waive the benefits of domestic partnerships on behalf of those for whom such partnerships represent an improvement. But as a human being and a lawyer sworn to uphold the constitution, I see no reason why gay people shouldn’t have the right to have any apple they’d like, given what marriage actually is. Marriage was first an amorphous creature of mutual association between a man and a woman for the purpose of raising children. Then it became a perpetuation of contract and property. Then it became a creature of religious rites, only some of which, by the way, throughout humanity’s 10,000-year flirtation with mythology, specifically defined marriage in terms of gender and orientation. Thus in America 2004, marriage has a dual identity. People here can be married with or without a religious rite. Either way, however, the same benefits and obligations attach whether a temple sanctions the marriage or not as far as the state is concerned. This reality is of critical importance to resolving the debate. Jewish or Catholic, Buddhist, Protestant or Muslim, everyone pays the same license fee and, more significantly, enjoys the same tax benefits, whether you got married in front of a priest or an Elvis impersonator with a justice of the peace license. Viewed that way, it’s clearly impossible to defend any posture that disallows people of the same sex to marry. What is marriage to the state, really, other than a financial arrangement? And if so, how dare the state limit its availability to anyone? Of course, say the opponents, marriage is “more” than that. They speak — very carefully if they’re wise — about “tradition” and use other characterizations delicately phrased to avoid the real heart of the source of opposition: religion. “Tradition” and like phrases are euphemisms for religious characterizations of marriage, some sources more vehement on the subject of homosexuality than others. This is where it gets a bit dicey. Either the United States and New Jersey have anti-establishment clauses, or they don’t. Either we admit we’re not really into that whole “separation of church and state thing,” or we are. And if we are, religious discussion of marriage has no place whatsoever in resolving what then becomes a very simple issue of offering the benefits of a financial arrangement equally to all our citizens. Of course, viewed in that logical, simple light, opposition to “allowing all citizens to partake equally in marriage” (in deciding to retake control of nomenclature over this issue on behalf of the enlightened and fair, I declare “gay marriage” a dead phrase) becomes unmasked for what it is – religious sentiment masquerading as law. And we’ve had quite enough of that, thank you very much. Costello is a partner with Lutz, Levow & Costello in Cherry Hill, concentrating on employment law and complex civil litigation. He also is a certified civil trial attorney and is the best practices chair for the board of governors of the American Trial Lawyers of America-New Jersey.

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