Nervous About I, 43 and CD-4

New Jersey's highest court yesterday ruled that gay and lesbian couples are entitled under the state constitution to legal rights associated with marriage and gave the state legislature six months to pass legislation to that effect, a ruling similar to one made during Howard Dean's tenure as Governor, in Vermont.

From my perspective here in Colorado, the timing could have been better and I'm nervous. Colorado has two ballot measures relevant to the New Jersey court's ruling before voters who are voting absentee and early voting as I write, in an election that concludes on November 7.

Referendum I would enact a state domestic partnership statute, similar to the one mandated by courts in Vermont and New Jersey. Amendment 43 would put a one man, one woman definition of marriage into the state constitution.

Initial polling showed that voters favored both measures, although Referendum I was considerably more popular than Amendment 43 which was looking like the usual pre-election slump in support for ballot measures might bring it a narrow defeat. In other words, steady as she goes looked like a good campaign strategy.

Now, the question is, will the New Jersey decision disturb the inertia that had I winning and 43 losing.

While nothing actually changes, the psychology of voting in favor of Referendum I changes a little when it feels like you are heading off a court challenge, rather than doing the right thing because you are part of a state that wants to do the right thing democratically. Similarly, the New Jersey decision takes away from the argument made by 43 opponents that it isn't necessary because the status quo is already enshrined in a state statute and federal law.

If backlash against the New Jersey decision (which on the merits I think is a good policy choice, although I lack sufficient familiarity with New Jersey state constitutional jurisprudence to evaluate it legally), energized gay rights opponents, passage of Referendum I could become less clear, passage of Amendment 43 may be more likely, and it is even possible that Marilyn Musgrave in the 4th Congresional District, whose legislative career has been defined by opposition to gay rights, could receive a boost.

I'm also worried that the New Jersey Senate race, where the Democrat is struggling in one of the bluest states in the nation, may be impacted negatively by people who are energized to vote Republican in order to support conservative federal judges. This is a year when one Senate seat really could make a difference.

Not everyone follows the news as closely as I do, and the people most likely to really care about the New Jersey case are also the people most likely to already be voters who have made up their minds about I, 43 and the 4th CD race. But, here in Colorado, I'm still wishing that the New Jersey high court had waited another couple of weeks to release its ruling.