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NJ Gay Marriage Decision:
Howard has posted it here. The key passage seems to be this:
Although we cannot find that a fundamental right to same-sex marriage exists in this State, the unequal dispensation of rights and benefits to committed same-sex partners can no longer be tolerated under our State Constitution. With this State's legislative and judicial commitment to eradicating sexual orientation discrimination as our backdrop, we now hold that denying rights and benefits to committed same-sex couples that are statutorily given to their heterosexual counterparts violates the equal protection guarantee of Article I, Paragraph 1. To comply with this constitutional mandate, the Legislature must either amend the marriage statutes to include same-sex couples or create a parallel statutory structure, which will provide for, on equal terms, the rights and benefits enjoyed and burdens and obligations borne by married couples. We will not presume that a separate statutory scheme, which uses a title other than marriage, contravenes equal protection principles, so long as the rights and benefits of civil marriage are made equally available to same-sex couples. The name to be given to the statutory scheme that provides full rights and benefits to samesex couples, whether marriage or some other term, is a matter left to the democratic process.
FantasiaWHT:
Appalling.

I still have never been convinced that a gay man doesn't have the exact same rights and opportunities for benefits that I have- we both have the option to marry a consenting adult woman to obtain those rights and benefits. I certainly don't have the right to obtain the rights and benefits by marrying a man, and neither did he. Where is the disparity?
10.25.2006 4:49pm
David B. (mail):
Yes, FantasiaWHY, the law in its majestic equality forbids both the rich and poor alike to sleep under bridges!
10.25.2006 4:52pm
Commenterlein (mail):
Appalling.

I still have never been convinced that a black man doesn't have the exact same rights and opportunities for benefits that I have- we both have the option to marry a consenting adult woman of the same race to obtain those rights and benefits. I certainly don't have the right to obtain the rights and benefits by marrying a woman of a different race, and neither did he. Where is the disparity?

That was fun.
10.25.2006 4:53pm
Ship Erect (mail) (www):
I still have never been convinced that a gay man doesn't have the exact same rights and opportunities for benefits that I have- we both have the option to marry a consenting adult woman to obtain those rights and benefits.

Ah, but a woman does not have that right, no? Why can't she "marry a consenting adult woman to obtain those rights and benefits"?
10.25.2006 4:55pm
FantasiaWHT:
I don't see how either of those examples are relevant
10.25.2006 4:55pm
Commenterlein (mail):
I believe you.
10.25.2006 4:57pm
FantasiaWHT:
Ship- now that is a much better point. Does it matter if the right is to marry a member of the opposite sex?
10.25.2006 4:57pm
FantasiaWHT:
Commeterlein, then enlighten me, I'd like to see the analogy explained
10.25.2006 4:58pm
JohnO (mail):
I found this sentence odd:

"With this State’s legislative and judicial commitment to eradicating sexual orientation discrimination as our backdrop, we now hold that denying rights and benefits to committed same-sex couples that are statutorily given to their heterosexual counterparts violates the equal protection guarantee of Article I, Paragraph 1."

Hadn't the legislature shown a "legislative commitment" (rightly or wrongly) in maintaining sexual orientation discrimination at least as it relates to marriage and the rights and benefits thereof? The court's analysis essentially deprives the legislature of the right to engage in line-drawing, as the court will take some benefits that the legislaturee decided to provide (or not deny) to a class and use that to throw out legislation where the legislature decided not to provide (or to deny) a benefit to that class.

This decision also seems like it will create an administrative hornet's nest. I assume the same divorce rules, etc., will apply to same-sex unions (the opinion says same rights and burdens), so the legislature will have to create a divorce, child custody, support, and property distribution regime for same-sex unions just as it has for married couples (assuming the legislature doesn't just change the marriage laws to include same-sex couples).

In fact, if the legislature tried to do some sort of marriage-lite, where same-sex couples register to get benefits but none of the burdens of marriage, wouldn't opposite-sex couple who don't want to marry sue to get the same thing?
10.25.2006 5:01pm
Houston Lawyer:
From the opinion "the framers of the 1947 New Jersey Constitution could not have imagined that the liberty right protected by Article 1, Paragraph 1 embraced same-sex marriage"

Therefore, the court was clearly obligated to impose it here.
10.25.2006 5:04pm
chrismn (mail):
So our robed masters have condescended to allowing the people through their elected representatives the option of not calling gay marriage "marriage." How good of them. So glad to see some judicial restraint.
10.25.2006 5:07pm
Terry:
"Separate But Equal" is okay now.
10.25.2006 5:09pm
lucia (mail) (www):

This decision also seems like it will create an administrative hornet's nest. I assume the same divorce rules, etc., will apply to same-sex unions (the opinion says same rights and burdens), so the legislature will have to create a divorce...

I assume if the set up civil unions, they will need to do this. How is that a problem?

JohnO said:
..if the legislature tried to do some sort of marriage-lite, where same-sex couples register to get benefits but none of the burdens of marriage,

Yes. I think all this means legislature shouldn't set up "marriage lite" with different benefits and burdens from marriage. The legistlature may set up something exactly like marriage, with all the benefits and burdens, but call it "exactly like marriage in all but name" or they can just change the law for what they already call marriage and say adults can marry others of the same sex.
10.25.2006 5:13pm
A.C.:
Of course same-sex unions will need all the divorce/support/property that opposite-sex unions have. If there's a procedure for getting into a certain status, there will have to be a procedure for getting back out again (assuming a society accepts divorce at all) or there will be chaos. Imagine one member of a couple (the one seeking a benefit) claiming the union still exists while the other claims it doensn't. But this isn't insurmountable. Marriage and property laws have gone gender-neutral for the most part, so there's no reason the legislature can't just cut and paste.
10.25.2006 5:16pm
Russ (mail):
The problem here is that the court is trying to mandate to the legislature. That has to be the most backwards way of running our system I have ever seen.

As appalling as segregation was, it was addressed by the Civil Rights Act of 1964 - a law that Congress was not told they "must" pass.

If the issue is such a winner, debate it in open legislature. Otherwise we have surrendered our republic to a bunch of guys in black robes who have not been elected by the people, and are, therefore, unaccountable for their decisions.

Just once, I'd love to see a legislature respond with the same thing Andrew Jackson did - "John Marshall made his decision, now let him enforce it."
10.25.2006 5:17pm
JohnO (mail):
Lucia:

My point is that, you're right, the administratively easy thing to do is just change the marriage law to say that same-sex couples can marry. I'd be surprised if that's what happens, which will create an administrative nightmare in trying to create a separate regime that is exactly like marriage (including all of the procedures for dissolution of marriages) but is not part of the legal framework applied to marriages.
10.25.2006 5:19pm
Houston Lawyer:
JohnO

You don't just have to change the marriage laws, you have to change each statutory reference to husband and wife, since those are now archaic terms in the eyes of the law.
10.25.2006 5:25pm
Justin (mail):
Russ, that's not correct. Courts have been creating "soft" or "undefined" Constitutional rights for quite some time, particularly but not exclusively in the area of education. Charles Sabel, Mark Tushnet, James Liebman, Michael Dorf, Martha Minnow, and others have written on the subject. Cass Sunstein may have an essay as well.
10.25.2006 5:28pm
lucia (mail) (www):

I'd be surprised if that's what happens, which will create an administrative nightmare in trying to create a separate regime that is exactly like marriage (including all of the procedures for dissolution of marriages) but is not part of the legal framework applied to marriages.

How does this create an administrative nightmare?
10.25.2006 5:32pm
Master Shake:

I believe you.
/golf clap.
10.25.2006 5:36pm
Steve:
You don't just have to change the marriage laws, you have to change each statutory reference to husband and wife, since those are now archaic terms in the eyes of the law.

At first I thought this was a pretty pedantic point. But then I flipped open the New Jersey statute book to the very first section on "Marriage and Married Persons"...

§ 37:1-1. Certain marriages prohibited


A man shall not marry any of his ancestors or descendants, or his sister, or the daughter of his brother or sister, or the sister of his father or mother, whether such collateral kindred be of the whole or half blood. A woman shall not marry any of her ancestors or descendants, or her brother, or the son of her brother or sister, or the brother of her father or mother, whether such collateral kindred be of the whole or half blood. A marriage in violation of any of the foregoing provisions shall be absolutely void.


Accordingly, unless they change this statute double-quick, it will be legal in New Jersey for a man to marry his brother. Help!
10.25.2006 5:36pm
JunkYardLawDog (mail):
If the judiciary insists on making what amount to political policy decisions which are by definition the proper province of the political branches of State Legislatures and Congress and the Executive branches of soverign states and the President, then the more they invite the People and the political branches to restrict, curtail, and infringe upon the Judicial branches independence.

If the day comes when the judicial branch loses its vaunted independence from the body politic, it will be a result which the judicial branch brought upon themselves by their lack of respect for and deference to the people and the political branches of government.

I think one can tell when judges are legislating policy matters or substituting their own policy analysis for that of the elected branches, and I don't think it is tied to whether one agrees with the result or not.

If its really in the constitution, it shouldn't be all that hard to explain where and why the basis is found, and it shouldn't take 90 pages and analogies to things that glow around the sun to say.

So the Supreme Court has ordered the legislature to legalize gay marriage within 180 days, but have left for a future decision whether the legislature has the right not to call the court ordered gay marriage "marriage".

This decision may not make much difference in New Jersey senate race, but it is definitely going to hurt those who support liberal activist judges in other states. That is no doubt why the press will play down their reporting on this issue as much as possible. The press will, until after the election is over, refer to this decision as affirming the lower court decision against gay marriage, when in fact this opinion over-rules lower courts and the legislature and all prior history and precedent in New Jersey and ORDERS the legislature to pass gay marriage legislation in the next 180 days or face additional court orders and other court ordered interference with the democratic process.

They the decision cynically leaves to a future order next year after the election additional legislation decreed from the bench which requires use of the name "marriage" for the gay marriage they order into effect today.

Says the "Dog"

Next polygamists should apply for marriage licenses in New Jersey and then sue for their equal protection rights. Then the dog lovers. No I don't think gays = bestiality. I think gay marriage has just as much basis in the constitution as does bestiality. NONE.
10.25.2006 5:40pm
logicnazi (mail) (www):
Maybe there is some New Jersey precedent which supports this weird mixed result but at least based on SCOTUS precedent about fundamental rights and equal protection it is the one decision that doesn't seem to make sense.

As I've been arguing forever the precedent set in Turner v. Safley makes a strong argument that marriage, independent of any sexual or child-rearing aspect, is a fundamental right. However, if we are to base the decision on reasoning like this it isn't justified not to give full out marriage.

Note this whole business about 'redefinition' is a crock. No one boggles when you say 'gay marriage' and asks 'what could that mean?' Besides the court isn't making a ruling about language use but about the use of a government created category. You are free to insist up and down that the use of the technical term marriage by the government to describe gay unions is linguistically inaccurate but it is irrelevant to the legal question.

On the other hand there is surely no fundamental right interest in the individual list of benefits provided by marriage. To say otherwise would be to hold that the legislature is constitutionally entitled to give married people special benefits. Since surely it wouldn't be unconstitutional for the state to totally ignore marital state in the law this can't be the grounds for a constitutional requirement for gay civil unions.

The court ultimately basses their holding on an equal protection basis which past precedent has apparently read into the vague clause of article 1 paragraph 1. Yet while I am convinced by the fundamental right to marriage argument I mentioned above I find this argument totally uncompelling. Unlike race sexual orientation is not obviously a protected class. Moreover, in the absence of strict scrutiny there is at least a rational justification for offering greater encouragement for straight couples to be legally bound together, namely that unlike gay sex straight sex can inadvertently create children.

In short, unless there is important New Jersey precedent I am not considering, I would argue this is the one decision that couldn't be legally supported.
10.25.2006 5:40pm
eric (mail):
From Loving v. Virginia: "The clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in the States."
Appalling.

I still have never been convinced that a black man doesn't have the exact same rights and opportunities for benefits that I have- we both have the option to marry a consenting adult woman of the same race to obtain those rights and benefits. I certainly don't have the right to obtain the rights and benefits by marrying a woman of a different race, and neither did he. Where is the disparity?

That was fun.


From Loving v. Virginia: "The clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in the States."

That explains it.
10.25.2006 5:40pm
Clayton E. Cramer (mail) (www):

At first I thought this was a pretty pedantic point. But then I flipped open the New Jersey statute book to the very first section on "Marriage and Married Persons"...

§ 37:1-1. Certain marriages prohibited


A man shall not marry any of his ancestors or descendants, or his sister, or the daughter of his brother or sister, or the sister of his father or mother, whether such collateral kindred be of the whole or half blood. A woman shall not marry any of her ancestors or descendants, or her brother, or the son of her brother or sister, or the brother of her father or mother, whether such collateral kindred be of the whole or half blood. A marriage in violation of any of the foregoing provisions shall be absolutely void.

Accordingly, unless they change this statute double-quick, it will be legal in New Jersey for a man to marry his brother. Help!
Please explain to me why a ban on same-sex marriage violates the equal protection clause, but a ban on same-sibling marriage (prohibited by the statute above) does not. Why should brother and sister lack the same rights to marry as brother and brother?
10.25.2006 5:44pm
plad0005:
because they already provide for same-sex civil unions in NJ.

many of you were quick to jump on this as traditional activist liberal judges acting in the province of the legislature; but if you read the opinion, you'd notice they specifically reject the notion that this same-sex marriage is a fundamental right.
10.25.2006 5:52pm
Steve:
Why should brother and sister lack the same rights to marry as brother and brother?

Quite right you are, Clayton, and no surprise you've thought about this issue more deeply than I have. Yet another reason why the Legislature needs to amend this statute immediately!
10.25.2006 5:52pm
eric (mail):
The brother-brother marriage thing is strange. What is the rational basis for prohibiting homosexual incestual marriage?
10.25.2006 5:53pm
Clayton E. Cramer (mail) (www):

Next polygamists should apply for marriage licenses in New Jersey and then sue for their equal protection rights. Then the dog lovers. No I don't think gays = bestiality. I think gay marriage has just as much basis in the constitution as does bestiality. NONE.
For those of you who decide to point out that dogs aren't people--that's very true. But what about the right of the human half of this marriage to be happy, fulfilled, and to get his dog on the company health insurance plan? Why does the law discriminate against him just because of what he loves?
10.25.2006 5:53pm
happylee:
"Separate But Equal" is back! Perhaps NJ will lead the way to undo the harm of Brown v. Bd of Ed and its progeny cases. And while working on this critical issue, the legislature might want to move things along by passing legislation setting up separate but equal schooling for gays. Like my wife says, the one pink sock can ruin an entire load of whites.
10.25.2006 5:59pm
BobNSF (mail):
You can always count on Clayton to champion the rights of the beastialists!

What a guy!
10.25.2006 6:01pm
Ship Erect (mail) (www):
Said The Dog: I think gay marriage has just as much basis in the constitution as does bestiality. NONE.

Where is marriage mentioned at all in the Constitution, New Jersey or federal? Do you think there is a "right to marry" in either? If you don't, what was your purpose in saying this?
10.25.2006 6:04pm
AppSocRes (mail):
One interesting point: MA has a law preventing out-of-state couples from being married in MA if it conflicts with laws in their state(s) of origin. NJ does not. Maybe the DOM amnendment to the consitution becomes a practical neccessity lest ten pig-headed, autocratic judges in two states may bring this country's whole system of marriage and family crashing down into legal chaos.
10.25.2006 6:04pm
KeithK (mail):
This strikes me as a blatantly political decision. Not so much because of the end result - there's good faith disagreement about whether there is or isn't a right to same-sex marriage. But the court is taking great effort to explain why this isn't mandating same sex marriage when it really is, regardless of name. This distinction is clearly for the consumption of voters who might be inclined to take umbrage at judicial activism on this issue. The court is well aware that mandating SSM in name tends to bring a backlash so theyre obfuscating.
10.25.2006 6:06pm
Steve:
Right, because (1) NJ certainly couldn't just adopt such a law as part of the court-mandated process allowing for civil unions, and (2) the public policy exception to the Full Faith and Credit Clause has only functioned flawlessly throughout the history of the Republic!
10.25.2006 6:08pm
Brian Garst (www):
Everyone has the same right to marry someone of the opposite sex. Period. Same sex marriage is not an equal right, it's a new one. If you believe it should be a right, fine. But don't argue that it already is a right and we just aren't acknowledging it. It isn't.
10.25.2006 6:09pm
Russ (mail):
Justin,

Just b/c the courts have been doing it doesn't make it right. Laws are the purvue of the legislature, or else we do not have a representative republic.

This is exactly why so many DOMA amendments appear on the ballots and are now in state constitutions, where they are MUCH harder to get removed - the people feel their right to decide their own laws are being circumvented by a bunch of unelected judges.
10.25.2006 6:12pm
another anonVCreader:
Everyone has the same right to marry someone of the same race. Period. Miscegenation is not an equal right, it's a new one. If you believe it should be a right, fine. But don't argue that it already is a right and we just aren't acknowledging it. It isn't.

Commenterlein, you're right, it IS fun.
10.25.2006 6:20pm
Clayton E. Cramer (mail) (www):


Where is marriage mentioned at all in the Constitution, New Jersey or federal? Do you think there is a "right to marry" in either? If you don't, what was your purpose in saying this?
You will notice that the courts didn't have to override the legislature to create a right to marry. Why can't homosexuals use the same strategy? Oh, that would involve persuading the majority.

Before you bring up Loving: the 14th Amendment was adopted specifically to provide equal protection regardless of race. The intent is very clear on this. Which amendment was intended to protect the equal rights of sexual minorities?
10.25.2006 6:24pm
te:

I still have never been convinced that a gay man doesn't have the exact same rights and opportunities for benefits that I have- we both have the option to marry a consenting adult woman

What's the old saying? The law also prohibits rich people from sleeping in alleys and under bridges at night, so laws barring such behavior aren't aimed at the poor.
10.25.2006 6:25pm
CWuestefeld (mail) (www):
Clayton says:

I think gay marriage has just as much basis in the constitution as does bestiality. NONE.

Then what is the government doing overseeing heterosexual marriages? If they have the authority to do this, then they must also have the duty to provide the same service for homexuals.
10.25.2006 6:26pm
JohnO (mail):
CWuestefeld:

You said:


Then what is the government doing overseeing heterosexual marriages? If they have the authority to do this, then they must also have the duty to provide the same service for homexuals.


That reasoning is pretty clearly wrong. That the government has the "power" to regulate one group doesn't mean that it necessarily has the "duty" to regulate another group in the same area. See, e.g., Rostker v. Goldberg, 453 U.S. 57 (1981) (upholding Military Selective Service Act against challenge that it violated Constitution by only requiring that men register with selective service).
10.25.2006 6:33pm
Clayton E. Cramer (mail) (www):

Then what is the government doing overseeing heterosexual marriages? If they have the authority to do this, then they must also have the duty to provide the same service for homexuals.
The government's reason for overseeing heterosexual marriages is because of something that heterosexual couples can create (and which becomes a messy situation with respect to custody and inheritance), and homosexual couples cannot: children. Homosexual couples might have some kids that they have adopted, or that one of them is the biological parent of, but there are NO homosexual couples where the kids are biological children of both. But perhaps you will get the courts to decide that this just bigotry, and that homosexual couples are actually biologically producing children, after all.
10.25.2006 6:34pm
BobNSF (mail):
Clayton, do custody and paternal rights vary depending on how one's legal children were produced?

I didn't think so.
10.25.2006 6:38pm
Fran (mail) (www):
Junkyardog

You talk about political/policy decisions as being the terminating tripwire for the judiciary. Why?

I thought that the judiciary was to interpert the laws of the land, based on the constitution.

Q1. Is there any direction in the US or NJ constitution as to how to determine 'constitutionality', or how to 'interpert' the constitution?

If there is such direction, how then can there be differing opinions...unless of course, there is judicial activism.

If there isn't such direction, then isn't that a political decision?

I would ask Scalia if all of his dedisions would survive his own test.

The first test for Scalia would be 'The Right to Bear Arms'.
Shouldn't this be interperted bases on the the original meaning...

...wouldn't this mean that the right to bear arms would only apply to guns that were produced at the time of the amendment?

What is his argument?
10.25.2006 6:45pm
CWuestefeld (mail) (www):
JohnO retorts:

That the government has the "power" to regulate one group doesn't mean that it necessarily has the "duty" to regulate another group in the same area

Interesting, I didn't know that (IANAL). But I think I expressed myself badly, and this isn't quite the same thing. I don't mean "regulate", I mean "protect" (as does the NJ SC, clearly from the opinion). I'm saying that the State can't protect me in some way without protecting others in the same way.

Clayton replies:

The government's reason for overseeing heterosexual marriages is because of something that heterosexual couples can create

That sounds like an opinion to me. I can't put my finger on anything that documents that. Can you show that it's anything other than your *belief*? (And on a personal note, does it mean that my marriage, having no offspring, is void?)
10.25.2006 6:47pm
Clayton E. Cramer (mail) (www):

Clayton, do custody and paternal rights vary depending on how one's legal children were produced?

I didn't think so.
The question was asked why the state is involved in overseeing marriage. I explained why. There are marriages that never produce children. There are children who are adopted--and the laws deal with those situations slightly differently, because they are different.

Homosexuals are free to get together, find some minister to go through the motions of a marriage ceremony, but the state has no reason to involve itself, because while some heterosexual marriages produce no children (and can be best understood as free riders on an institution set up for the benefit of the more typical case), NO homosexual marriage has ever, or will ever, produce a child.

In any case, the authority of the states to treat homosexuals and heterosexuals differently is well-established. For a very long time, the mere commission of a homosexual act was a felony under English and American law. Somehow, this fantasy of yours that homosexuals had to be treated the same as heterosexuals was completely invisible for several hundred years. It isn't like "equal protection" just got added to the Constitution, you know.
10.25.2006 6:47pm
plad0005:
Clayton:

Neither can infertile different-sex couples; should we not allow them to marry?
10.25.2006 6:49pm
Clayton E. Cramer (mail) (www):

The first test for Scalia would be 'The Right to Bear Arms'.
Shouldn't this be interperted bases on the the original meaning...

...wouldn't this mean that the right to bear arms would only apply to guns that were produced at the time of the amendment?

What is his argument?
"Arms" at the same referred to hand-held weapons used for killing. That hasn't changed.

Just like "press" back then referred to a method of printing materials, and it doesn't much matter if the pressure is a big metal screw, or the rollers fusing the toner to the paper of a laser printer. (Television and radio is a bit different, and the courts have held that they do not enjoy exactly the same status as a newspaper--for example, when a Florida law required newspapers to carry opposing points of view, like TV stations used to have to do--the Supreme Court ruled that newspapers can't be so required.)

And which part of the equal protection clause protected the rights of homosexuals when it was adopted? Was there anyone that thought that homosexuals enjoyed the same legal protections as straight people? No, because homosexual actions were felonies back then.
10.25.2006 6:52pm
Fran (mail) (www):
Corrections from above:

Interpert and/or/whichever/Interpreted

Just spell the GD word correctly.

Sorry
10.25.2006 6:52pm
Clayton E. Cramer (mail) (www):

Clayton:

Neither can infertile different-sex couples; should we not allow them to marry?
They are free riders on the system. The states are free to prohibit such marriages, I would argue, if the legislators think that there is a good purpose served by such laws. I think it is unlikely that they will do so.

The core problem here is that homosexuals don't like to be reminded that they are damaged; hence the insistence on forcing everyone to nod stupidly and say, "Sure, you are just fine."
10.25.2006 6:54pm
Clayton E. Cramer (mail) (www):


The government's reason for overseeing heterosexual marriages is because of something that heterosexual couples can create



That sounds like an opinion to me. I can't put my finger on anything that documents that. Can you show that it's anything other than your *belief*? (And on a personal note, does it mean that my marriage, having no offspring, is void?)
So you think that homosexual couples can produce children who are the biological product of both? You really do need to spend some time taking freshman biology.

You marriage, having no offspring, is a free rider on an institution. If the state decided to refuse infertile couples the opportunity to marry, it might be a poor decision, but hardly an unconstitutional one. They prohibit siblings from marrying; children from marrying their parents; in most states, from marrying first cousins; adults from marrying five year olds. There are lots of restrictions, and some of them could probably survive a "rational basis" test and others probably could not. But so what? The "rational basis" test elaborated in Cleburne v. Cleburne Living Center, and misused in Romer v. Evans is just another strategy for the Supreme Court to substitute their personal opinions for that of the elected legislative bodies.
10.25.2006 6:59pm
BobNSF (mail):

Somehow, this fantasy of yours that homosexuals had to be treated the same as heterosexuals was completely invisible for several hundred years. It isn't like "equal protection" just got added to the Constitution, you know.


What has changed is the fundamental understanding of what human sexuality is. Homosexuality isn't some sort of vice that some heteros have (as it was once considered). Join the present, Clayton. It's not as scary as you think.
10.25.2006 7:01pm
plad0005:
Clayton:


The core problem here is that homosexuals don't like to be reminded that they are damaged; hence the insistence on forcing everyone to nod stupidly and say, "Sure, you are just fine."


I think infertile heterosexual individuals would fall into that definition of "Damaged" you suggest. So is this something that would be a justifiable basis for denying them similar rights as well?


They are free riders on the system. The states are free to prohibit such marriages, I would argue, if the legislators think that there is a good purpose served by such laws. I think it is unlikely that they will do so.


By the same token, many people prone to criminal activity could be considered "defective" right? Yet, the SCOTUS allows them to marry and says its a fundamental right (See Turner v. Safley, 482 U.S. 78)
10.25.2006 7:02pm
chrismn (mail):
In what sense can homosexuals even claim to be a protected group? They have in common a preference. Big deal.

Some people don't like chocolate. Do they, as a defined group, deserve equal protection? Some men are really into women's feet. Do they?
Some people just like to masturbate. If they start to come out of the closet and come up with a name for themselves and start to see it as their identity, "who they are", do they get invoke equal protection as well?

More seriously, what is it about the particular preference of what you would most like to do with your genitals (or even what sex you generally like to bond with) that elevates this preference above all the other ways we could sort people into what they like and dislike?
10.25.2006 7:03pm
Wombat:

Everyone has the same right to marry someone of the same race. Period. Miscegenation is not an equal right, it's a new one.


Yes, and that flimsy decision at least had the 14th amendment behind it. The equivalent constitutional reasoning for federal gay marriage is ?

And again, I am mildly pro-gay marriage. But there is simply no constitutional reasoning to support OR ban gay marriage, incestuous marriages, polygamy, etc. It is simply a matter for the legislature - both the "legalize via the judiciary" and the "constitutionally ban from ever happening" crowds are wrong.

Just because something is right doesn't mean it's hidden in the Constitution.
10.25.2006 7:04pm
KeithK (mail):

The government's reason for overseeing heterosexual marriages is because of something that heterosexual couples can create

That sounds like an opinion to me. I can't put my finger on anything that documents that. Can you show that it's anything other than your *belief*? (And on a personal note, does it mean that my marriage, having no offspring, is void?)

Must we get into this argument again? I don't think that anyone can in good faith argue that the institution of marriage did not develop in human society as a structure for the encouraging and supporting child rearing. Historically, this has been an exclusively heterosexual institution. it's fair to argue that society can choose to expand the definition of marriage. It's fair to argue that marriage is about more than just family and child rearing in our society. But arguing that some heterosexual married couples don't have children invalidates the historical underpinings of marriage is ridiculous.
10.25.2006 7:05pm
Steve:
NO homosexual marriage has ever, or will ever, produce a child.

This is flatly false. When a homosexual couple produces a child through in vitro fertilization or the like, a child is born who never would have existed at all absent the homosexual relationship.

Yes, the child is not the biological product of both parents. So what? How are the state's interests in encouraging procreation and the raising of children in stable households not equally furthered here?

The core problem here is that homosexuals don't like to be reminded that they are damaged; hence the insistence on forcing everyone to nod stupidly and say, "Sure, you are just fine."

But remember, friends... these marriage amendments are motivated solely by the wholesome desire to protect traditional marriage. There's no anti-gay animus involved.
10.25.2006 7:06pm
Fran (mail) (www):
Clayton

Scalia uses the time lag of meaning to his advantage, when it is to his advantage.

If he truly means that that Constitution 'doesn't' change, then what was written then, should be real now.

What about Scalia's interpertation of the 9th amendment?

It seems to me that the original interpertation of the 9th amendment was to stop the govt from taking away rights from the people. The idea was that these rights didn't have to be written down. Because that would be too cumbersome.

Is that reasonable enough for you?

What the F's wrong with interperting the 9th amendment as it was designed?
10.25.2006 7:06pm
Ship Erect (mail) (www):
The core problem here is that homosexuals don't like to be reminded that they are damaged

Damaged in what way? Because you don't like them?
10.25.2006 7:08pm
plad0005:
ChrisMN:


In what sense can homosexuals even claim to be a protected group? They have in common a preference. Big deal.


Doen't heterosexuals have the structural protection provided by marriage, and isn't this a "common preference"?
10.25.2006 7:09pm
Elais:
Clayton,

Homosexuals are as equally damaged as you are.

Homosexuals are just fine, just like heterosexuals.

The NJ Supreme Court states that regardless if it is same-sex unions or opposite sex unions, they must be treated equally under the law.
10.25.2006 7:09pm
KeithK (mail):

What has changed is the fundamental understanding of what human sexuality is. Homosexuality isn't some sort of vice that some heteros have (as it was once considered). Join the present, Clayton. It's not as scary as you think.

And when that change is thinking is established in the text of the constitution (or a state's constitution) I will support it's use to invalidate current laws. Much like I support using the 14th amendment, which specifically addressed racial discrimination, to invalidate laws against interracial marriages. But this change in the text has not occurred. Why hasn't it occurred? Because there aren't enough people who agree with the new understanding to pass such a change through the democratic process. Unfortunately there are plenty of judges who aren't willing to wait for democracy to work.
10.25.2006 7:11pm
Justin (mail):
Clayton, I really hope you aren't a lawyer.

The "equal air time" requirement has nothing to do with the medium of television, but the public ownership of airwaves. There is no equivalent for newspapers. Nor is there an equal time requirement on cable.
10.25.2006 7:13pm
BobNSF (mail):

I don't think that anyone can in good faith argue that the institution of marriage did not develop in human society as a structure for the encouraging and supporting child rearing.


That's all well and good, but what about kinship? Is all kinship related only to child-bearing in all cultures? Many societies have had equivalents to "civil unions". Some even allowed simultaneous heterosexual marriage and homosexual union. To deny that humanity can recognize same-sex relationships because most cultures developed binary, opposite-sex "marriage" is putting on blinders.
10.25.2006 7:13pm
BobNSF (mail):
Elias (to Clayton):


Homosexuals are as equally damaged as you are.


OK, now I'm insulted!
10.25.2006 7:16pm
chrismn (mail):
plad0005,

As has been pointed out over and over in this thread, traditional marriage laws don't say anything about homosexuality or heterosexuality. Except for a few exceptions (close relatives and so on) any man can marry any woman who will have him, and vice-versa.

And I love it when people bring up the sleeping under bridges example. Yes, the law indeed does make it just as illegal for the rich to sleep under bridges as the poor. So what! There is nothing unconstitutional (or wrong for that matter) with a society deciding that bridges are for, well, allowing the passage of cars over rivers and such and not for sleeping under. Has any federal court found a constitutional right to sleep under bridge?
10.25.2006 7:16pm
KeithK (mail):

But remember, friends... these marriage amendments are motivated solely by the wholesome desire to protect traditional marriage. There's no anti-gay animus involved.

Those who strongly support anti-SSM amendments generally believe that gay marriage is wrong. The arguments about protecting traditional marriage are only window dressing to use in arguments with those who either don't agree witht hem or are relatively undecided. Is this "anti-gay animus"? There's nothing malevolent or spiteful about my reasons for being against SSM. I just think it's wrong and should not be officially recognized by society.
10.25.2006 7:18pm
Justin (mail):
"Laws are the purvue of the legislature, or else we do not have a representative republic."

Russ, that's a fair basis of your response post, but it's clearly wrong. We don't live in a pure democracy, and we don't actually allow the legislature pure or complete legislative decisionmaking. Even if by "legislature" you mean "legislature and executive" you will notice that the bill of rights and rights listed in state constitutions act as limitations on legislative power. Either thoes limitations mean something or they don't. You could, of course, make either the argument that we shouldn't have a bill of rights (or their state equivalent), or alternatively that instead of said "unalienable rights" we should have a politically-approved list of suggestions, but that is not how we actually deal with rights issues in the US, and so your point is at best off topic, at worst simply invalid.
10.25.2006 7:19pm
BobNSF (mail):
KeithK


But this change in the text has not occurred.


Nor has equal protection been struck from the relevant documents.
10.25.2006 7:21pm
BobNSF (mail):

There's nothing malevolent or spiteful about my reasons for being against SSM. I just think it's wrong and should not be officially recognized by society.


What about civil unions?
10.25.2006 7:23pm
jrose:
Clayton: They [infertile couples] are free riders on the system. The states are free to prohibit such marriages

I am willing to settle this dispute on whether such a prohibition is constitutional. I seriously doubt it would be.
10.25.2006 7:26pm
Bart (mail):
:::sigh::::

Another court holding that there is no fundamental right to homosexual "marriage," but then concluding that there is nothing at all rational about state granting benefits to the most fundamental and vital of all human relationships - marriage - so that they can arbitrarily rewrite a democratically enacted law.

Every time the Courts arbitrarily do violence to democracy and the rule the law in this way, it becomes harder to defend the concept of judicial independence from a pissed off citizenry.

The argument behind judicial independence is that we don't want external politics to sway the objective application of law. However, when the judiciary itself is imposing its subjective politics on the law, that argument collapses. If the judicial system is simply going to be another political branch, then it should either be more subject to our democracy or have its discretion curbed so it can no longer abuse its power to interpret the law.

In my state of Colorado, this NJ decision should just about ensure passage of three initiatives amending the state constitution with the intent of curbing our activist courts by defining marriage, term limiting judges and blocking most judicial meddling in the initiative process.
10.25.2006 7:42pm
NRWO:
Those who strongly support anti-SSM amendments generally believe that gay marriage is wrong.

But wrong for a reason: Many who prefer the status quo on marriage rightly look to Scandanavia and to other countries that have adopted “same sex partnerships” and are concerned that expanding the definition and benefits of marriage to same sex couples may have consequences to marriage (e.g., reduced marriage rates) and to children (e.g., increases in single parent household).
10.25.2006 7:51pm
Russ (mail):
Justin,

I never said we live in a "pure democracy," b/c we don't - we live in a republic. In such, the legislature makes the laws. However, here, the courts are trying to dictate what a legislature can do. Were the court to simply strike down the law as unconstitutional, that's one thing. However, to say, "Hey, state legislature, you guys have 180 days to do something about it" amounts to the judiciary trying to usurp the powers of the elected body.

Can you please let me know if you think there are any ways in which a court could/has overstepped its authority? Is there any situation, in your opinion, in which the legislature would be obligated, or even legally allowed, to give the big middle fingered salute to the courts?
10.25.2006 7:54pm
Fran (mail) (www):
What is the argument?

Is it that: the NJ constitution provides equal protection.?

Is this wrong?

No matter the outcome?

If the original intent of the constitution and marriage condoned wife beating, why isn't that allowed now?
10.25.2006 7:58pm
Caliban Darklock (www):
> Yes, the child is not the biological
> product of both parents. So what?

I believe but cannot prove that a child's biological parents are more qualified to raise that child in ways that we are currently unable to quantify.

Just like I used to believe, but could not prove, that gay couples would be able to raise perfectly well-adjusted children. And look, they are: the adopted children of gay couples are almost invariably better-adjusted than children who stay wards of the state until the age of majority.

Just because a gay couple *can* do something doesn't mean they're the best choice for it. A child ought to be raised willingly and diligently by both of his biological parents. The closer you can get to that, the better off the child is likely to be.

> How are the state's interests in
> encouraging procreation and the
> raising of children in stable
> households not equally furthered
> here?

Well, for one, the gay couple isn't getting in vitro anything unless and until they write a massive check. I suggest that any couple is less likely to write that check than they are to get frisky on the couch after Nip/Tuck.

Okay, granted, gay couples are probably more likely to get excited by Nip/Tuck than straight couples, but you know what I mean.
10.25.2006 8:41pm
KeithK (mail):

"I don't think that anyone can in good faith argue that the institution of marriage did not develop in human society as a structure for the encouraging and supporting child rearing."


That's all well and good, but what about kinship? Is all kinship related only to child-bearing in all cultures?

Bob, I think you're missing the point I was trying to make in that post. Your point about kinship is a reasonable argument. I went on to say: "it's fair to argue that society can choose to expand the definition of marriage. It's fair to argue that marriage is about more than just family and child rearing in our society." My point was that one is not likely to convince me to expand my definition of marriage by arguing that traditional marriage does not perfectly fit its basic purpose (childless couples, elderly, etc.) So lets avoid the "conservative view of marriage s flawed" line of discussion and stick to something more constructive. (Plenty of VC readers have done so.)
10.25.2006 8:43pm
KeithK (mail):

Nor has equal protection been struck from the relevant documents.

No it has not (questions about whether there is an EP clause in the NJ constitution aside). But equal protection can be interpreted in many different ways. To me it doesn't apply unambiguously to this issue in the way that a clause mandating that marriage laws be gender free would be. If you define marriage according to its traditional definition (man and woman) then there isn't an equal protection violation - everyone has the same right to get married. It requires a broadening of the definition of marriage, one that makes it a union of any two people, befor there is an equal protection claim. IMO such a change can only properly be made through formal action of the democratic process (referendum, legislation) and not through judicial interpretation.
10.25.2006 8:51pm
KeithK (mail):
BobNSF: No, I don't like the idea of civil unions either. I'm sufficiently on one side of this issue that I'm unlikely to be convinced of the merits of same sex marriage/civil unions. But I find it a lot easier to tolerate either when they areauthorized through the democratic process rather than through judicial extrapolations.
10.25.2006 8:58pm
BobNSF (mail):
Bob, I think you're missing the point I was trying to make in that post.


If your point is that marriage is about the children, then I didn't miss the point, I just don't agree with it. Sure, marriage is partially about the children. In the West, it's perhaps even primarily about paternity. Note: clarity of paternity isn't necessarily about what's best for the kids.

The larger point behind your argument (correct me if I'm wrong) is that heterosexuality has always been with us and is the "natural" human condition. I agree that it's a natural human condition, the dominant one, but it isn't the ONLY one. If you look back to caveman days and beyond -- where marriage originated despite the claims of many religious leaders -- what do you suppose gay people did? "Primitive" cultures tended to be based on communities, not on couples. Did Gay Og have to get married to conform to the rules? Or, as is the case with some of our simian cousins, were there contributing, valuable members of communities who just didn't reproduce?
10.25.2006 9:00pm
BobNSF (mail):

BobNSF: No, I don't like the idea of civil unions either.


Earlier you asked:


Is this "anti-gay animus"? There's nothing malevolent or spiteful about my reasons for being against SSM. I just think it's wrong and should not be officially recognized by society.


I would submit that there is something malevolent about refusing your fellow citizens any legal protection for their most important, personal relationships. You are supporting true hardships for many, many people.
10.25.2006 9:06pm
Justin (mail):
Russ,

"I never said we live in a "pure democracy," b/c we don't - we live in a republic. In such, the legislature makes the laws. However, here, the courts are trying to dictate what a legislature can do. Were the court to simply strike down the law as unconstitutional, that's one thing. However, to say, "Hey, state legislature, you guys have 180 days to do something about it" amounts to the judiciary trying to usurp the powers of the elected body."

Okay, your new, narrower point is still invalid. In this context, the problem is that your solution would be to invalidate the marriage laws of the state of NJ. Which one is more judicial activism, and indeed, which one is more protective of the concept of marriage?

Also, with state constitutions, what happens when the voters approve an affirmative duty into the Constitution? Does your theory of constitutional interpretation just make that an official nullity? If so, wouldn't your theory, if applied, be using its own preferences in place of those of the voters who enacted the state constitution? I'd say your theory is by far the more activist, either way you look at it.

The reason yours is so activist is bc of what I said before - interpreting the Constitution often requires evaluation of soft Constitutional rights, which is why I originally led you (and you probably simply declined to even read the summaries of) articles that explain as such.
10.25.2006 9:20pm
Truth Seeker:
"Separate But Equal" is okay now.

But the slippery slope will soon bring us unisex bathrooms. They said it would never happen, but can anyone doubt it now? Think of the relief it will bring to all of those who haven't yet figured out their gender.
10.26.2006 12:16am
BobNSF (mail):
Truth Seeker,

True traditionalists will no doubt be thrilled with that development! Afterall, separate toilets for the sexes was a (GASP!) French innovation of the 1730s.
10.26.2006 1:34am
logicnazi (mail) (www):
Unisex bathrooms aren't a big deal. They sounded scary until I had them in my college dorm. No biggie.

It's a lot like eating insects or other weird cultural prejudices. Your distaste for it is way worse than any actual badness.
10.26.2006 1:55am
logicnazi (mail) (www):
Also as I said in the other threads if you are objecting on grounds of judicial activism you should be just as outraged by Zeblocki v. Redhail and Turner v. Safley where the courts manufactured a fundamental constitutional right to marriage.

If you only protest when that right is applied to gays your real objection isn't judicial activism it is with the policy result.
10.26.2006 1:57am
eric (mail):
Logicnazi - I do not understand your last comment. I might oppose the decision in Griswald v. Connecticut, but I am not outraged about it because, well I was not alive when it was decided (as is the case with Zablocki), but more importantly, outrage comes and goes. You can disagree without outrage.

In Zablocki, Powell and Rehnquist rejected marriage as a fundamental right. I have a strong suspicion that those many of those opposing this opinion would agree with Powell or Rehnquist in that case.
10.26.2006 4:56am
Taking the Long View (mail):
Of course, this law is made by man, not by Allah. Therefore it will be struck down a generation from now, when the Islamic States of America finally brings the true religion to these shores. Even as you debate this absurd issue, the Moslem brothers bring Sharia into your culture little bit by little bit. If you do not believe me, try getting into a taxicab in Minneapolis/St.Paul with a bottle of alcohol. Yes, it is a small thing, but your authorities are helpless to stop it, just as they cannot stop other expansions of Allah's law.

By all means, continue to destroy what is left of your Christian culture. It will make the conquest of Allah's word just that much easier.
10.26.2006 11:29am
Russ (mail):
Justin,

You never answered my question - in what way has/could a court overstep its authority, and under what circumstances would a legislature be obligated, or even legally allowed, to tell the courts to go screw themselves.

You seem to have an absolute faith in judges - the kind of faith people used to place in emperors as gods. I know the legislature can screw up, but we fix that through the electoral process.

The rise of "soft" constitutional rights has not been bordered by either common sense or the intent of the folks who wrote the law. People try to read into it what they want. Do you seriously believe that the folks who wrote the applied article in 1949 intended gay marriage to be included in that? You can want it to say so all you like, but that doesn't make it so. I'd like the constitution to infer that I am entitled to free health care under the general welfare provision, but that doesn't make it so.

Courts do not exist to create the law, they exist to apply it. I am genuinely interested in hearing an answer to my question posed above.
10.26.2006 11:31am
Tired of this kind of garbage (mail):

I guess I see why so many law students want to become judges, now. The opportunity to wield unlimited power, without having to go through all that icky, tedious "getting elected" nonsense, certainly must be attractive. Having the power to literally rewrite constitutions, invent new meanings for words, make up new laws from thin air, in short act like an aristocrat from some ancien regime or other, has to be fun. An "intellectual feast", as Robert Bork called it.

The other day an old man was telling me it was long past time to end life tenure for any and all judges. I thought he was over the top. Now I am beginning to see the wisdom of his words.
10.26.2006 11:47am
KeithK (mail):

I would submit that there is something malevolent about refusing your fellow citizens any legal protection for their most important, personal relationships. You are supporting true hardships for many, many people.

You are seeing an implied malevolence in my fundamental beliefs about homosexuality. I don't believe there is any. I do certainly agree that my position would deny some people a recognition and protection that they desire and as result could be considered harmful to them. I will further agree that there are some people who do seek to enact or support anti-SSM laws out of a desire to harm gay people. But I know that my own motivation is not malevolent.
10.26.2006 8:07pm
KeithK (mail):

If your point is that marriage is about the children, then I didn't miss the point,

I was making a somewhat narrow statement there, which was related (somewhat) separate from the other arguments here. My point was simply that marriage was primarily about the children historically. That hostory is not necessarily controlling today. But I don't think that arguments that heterosexual marriage is not perfect are not in and of themselves sufficient to invalidate the traditional structure.
10.26.2006 8:11pm