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Third Way Result in New Jersey Marriage Case:

In what looks like a Vermont-style ruling, the New Jersey Supreme Court has unanimously ordered the state to grant all of the privileges and rights of marriage -- but not necessarily the word "marriage" -- to same-sex couples. The opinion is here.

The legislature has 180 days to act. The court leaves open the possibility that gay-marriage litigants can come back to the state courts at a future date and request full marriage.

Three justices concurred, saying that the state should have been required to grant full marriage under state law. Litigants thus fell one vote short of a majority for same-sex marriage.

I'll have more to say about the decision when I've had a chance to look at it in detail.

Still Learning:
Karl Rove strikes again!

Hard core Republican voters won't see this as any different from gay marriage. They'll see Democratic judges forcing gay marriage on America and they'll turn out in droves to vote for Republicans.
10.25.2006 4:48pm
Craig Oren (mail):
I'm not so sure that's right. I doubt many people care about what benefits that same-sex partners can get. Rather, there's a magic to the word "marriage." But we'll see.
10.25.2006 4:54pm
Rich Egan (mail):
I have to ask after the NY Times published an article that showed married people being in the minority; Is this the democrats idea of getting it back up to the majority?

I live in NJ and this is just typical of Jersey Courts. remember that just before the last election when the man running for Senator had to drop out because of some ethical issues, the court found that is was okay for the Democrats to all of a sudden substitute someone else. This in spite of the election law saying that it could not be done if it was within XX days of the election.

In New Jersey the law if flexible, so flexible that Gumby looks stiff!
10.25.2006 4:55pm
Phutatorius (www):
Whatever. If this really does turn the tide, and rabid anti-same sex marriage activists swarm the polls to reelect their corrupt ideologue theocrat incumbents, then we deserve what we get as a nation.

But it's not like the GOP can come up with ad hoc anti-gay ballot initiatives this late in the game. And a lot of those initiatives were one-offs anyway. How many times can you ban something in a state?

Amazing that they got 7 votes in support of a civil-union minimum, though. Good for New Jersey.
10.25.2006 4:56pm
Alex R:
It's always hard to predict how the spinmeisters will work and how the voters will respond, but I can't quite see Rove crowing over this one. (If the Republicans push too hard to spin this as the-sky-is-falling here-comes-gay-marriage, there could even be a backlash.) As Dale says, the decision is more-or-less identical to the Vermont court decision, which created much less controversy than the Massachusetts decision.
Another point is that the headline race in NJ right now is between two candidates who pretty much share the same pro-civil-union, anti-gay-marriage position, so the national politics won't be fed by local fire. If either Kean or Menendez try to use the decision politically against the other, I suspect it would hurt the agressor.
10.25.2006 4:58pm
GMUSL 3L (mail):
Dale, I understand your support for the idea of gay marriage. That being said, this is a TERRIBLE and unsupportable decision, even though I support civil unions of exactly this type instituted by the legislature.

I'm sure that you're aware that unlike the NY and CA constitutions, NJ's does not even have an equal protection clause, though the justices have read in an "equal protection component" on occasion in the past. Despite that, the judges somehow decide to use strict scrutiny and conclude that the state constitution requires it.

There's no way to view this decision as anything but naked political activism. I completely support the result, but the reasoning is so thin that it's practically 2-D.
10.25.2006 5:01pm
Duncan Frissell (mail):
From the dissent:


But there is another dimension to the relief plaintiffs’
seek. In their presentation to the Court, they speak of the
deep and symbolic significance to them of the institution of
marriage. They ask to participate, not simply in the tangible benefits that civil marriage provides -- although certainly those benefits are of enormous importance -- but in the intangible benefits that flow from being civilly married. Chief Justice Marshall, writing for the Massachusetts Supreme Judicial Court, has conveyed some sense of what that means:

Marriage also bestows enormous private and
social advantages on those who choose to
marry. Civil marriage is at once a deeply
personal commitment to another human being
and a highly public celebration of the
ideals of mutuality, companionship,
intimacy, fidelity, and family. “It is an
association that promotes a way of life, not
causes; a harmony in living, not political
faiths; a bilateral loyalty, not commercial
or social projects.” Griswold v.
Connecticut, 381 U.S. 479, 486, 85 S. Ct.
1678, 14 L. Ed. 2d 510 (1965). Because it
fulfils yearnings for security, safe haven,
and connection that express our common
humanity, civil marriage is an esteemed
institution, and the decision whether and
whom to marry is among life’s momentous acts
of self-definition.
[Goodridge v. Dep’t. of Pub. Health, 798
N.E. 2d 941, 954-55 (Mass. 2003).]

Plaintiffs are no less eloquent. They have presented their
sense of the meaning of marriage in affidavits submitted to the Court:

[Plaintiff's statements elided]

By those individual and personal statements, plaintiffs express a deep yearning for inclusion, for participation, for the right to marry in the deepest sense of that word. When we say that the Legislature cannot deny the tangible benefits of marriage to same-sex couples, but then suggest that “a separate statutory scheme, which uses a title other than marriage,” is presumptively constitutional, ante at ___ (slip op. at 7), we demean plaintiffs’ claim. What we “name” things matters, language matters.

Since two of the Plaintiff's in this action are Episcopal priests with full sacerdotal powers, they can marry the other plaintiffs in church with flowers, incense, a sung high mass, the whole nine yards. They can use the 1662 Book of Common Prayer marriage ceremony.

As the Majority points out, New Jersey courts have already ruled that anyone can say they're married (can characterize their relationship in any fashion they desire).

Is there really anyone so degraded that "the intangible benefits that flow from being civilly married" are important to them. That they require the government to bless them.

The beauty of sacremental marriage is that the bride and groom marry each other and confer the sacrament on each other. It's the only sacrament that can be regularly (in non-emergency cicumstances) performed by civilians who are unordained. I guess secularists feel the need for a government sacrament because they are missing others.
10.25.2006 5:04pm
Duncan Frissell (mail):
Rich,

Married people aren't in the minority. Married households are but since a married household has 2 married people in it, about 60% of those over 25 are married. Also many of the other households are the divorced and widowed who have been married.
10.25.2006 5:07pm
Alex R:
GMUSL 3L --
Intriguing. The decison refers repeatedly to "the substantive due process and equal protection guarantees of Article I, Paragraph 1 of the State Constitution."

But Article I, Paragraph 1 reads in full
All persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness.

The words "due process" or "equal protection" do not appear, but apparently this paragraph has been construed to include these in the past... Is there a standard citation that is used to obtain this reading?
10.25.2006 5:13pm
JohnO (mail):
Prof. Carpenter:

Any view on what this decision does to the argument that you and others have made here that constitutional amendments are unnecessary for those opposed to gay marriage because it's unlikely that courts will impose them by judicial fiat? I know that the NJ court doesn't require same-sex unions to be called "marriage," but by the decision it must be exactly like marriage of called something else.

As someone who believes that this issue should be committed to the democratic process, however it turns out, I generally support a state (but probably not federal) constitutional amendment that provides that there is no constitutional right to gay marriage but leaves it to the legislature to decide whether to allow gay marriage or not.
10.25.2006 5:14pm
Steve:
I can feel my heterosexual marriage weakening as we speak.
10.25.2006 5:16pm
Colin (mail):
I guess secularists feel the need for a government sacrament because they are missing others.

That's a powerful projection you've got going, there.
10.25.2006 5:16pm
GMUSL 3L (mail):
Alex, I'm sure there are a few but I don't know what they are. This SDP and EPC slight-of-hand is, unfortunately, standard NJ Constitutional practice for the NJ Judiciary.

There's an interesting analogue to whatever that(those) case(s) serving, like Griswold, as the bridge to another right even further divorced from the text.
10.25.2006 5:17pm
Daniel Chapman (mail):
Steve: http://www.janegalt.net/blog/archives/005244.html

Read it... you'll like it.
10.25.2006 5:18pm
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 5:19pm
josh:
Duncan Frissel:

"Since two of the Plaintiff's in this action are Episcopal priests with full sacerdotal powers, they can marry the other plaintiffs in church with flowers, incense, a sung high mass, the whole nine yards. They can use the 1662 Book of Common Prayer marriage ceremony."

Same goes for the plaintiffs in Loving v. Virginia
10.25.2006 5:19pm
Duffy Pratt (mail):
I wish the NJ legislature would step up to the plate and abolish legal marriage. If the government just got out of the business of marriage, then we wouldn't have to deal with these silly issues.

And I don't think this would eliminate marriage as a social institution at all. People could, and would, still get married by whatever churches or other institutions were willing to do it. How many of the married people on this list would have refrained from getting married if it did not have government sponsorship.
10.25.2006 5:20pm
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"
10.25.2006 5:25pm
Daniel Chapman (mail):
Josh: Actually, you're wrong there. Loving v. Virginia, as I'm sure you remember, dealt with a criminal penalty for BEING married in the state of Virginia. The couple got married, and the state sentenced them for it. (25 years or exile, I believe)

In this case, if the couple were married in a religious ceremony, nothing would happen.
10.25.2006 5:25pm
Steve:
Interesting post, Daniel.

I'm certainly sympathetic to the view that government should help encourage and strengthen marriage, because it is important for society. Personally, I see that as an argument for gay marriage, rather than against it, but that's me. (For every heterosexual couple on the margin who might be swayed by the existence of gay marriage, there very well could be multiple gay couples who would be swayed in the opposite direction!)

As for the argument that courts shouldn't be doing this, but should be leaving it to the legislatures, I think that goes without saying. I think it also goes without saying that all those legislatures shouldn't have been banning interracial marriage, but alas.
10.25.2006 5:26pm
JohnO (mail):
Duffy Pratt:

Government sanction of marriage affects people's lives in a lot of tangible ways such that having the government get out of the business of marrying people is a bad idea. Taxes are filed based on marital status. Many states have a default rule that presumes that the husband of a child is the child's father for support purposes, etc., the marriage regime protects non-working spouses in case of divorce. Some state benefits are provided to a spouse after the original recipient's death. If the government got out of the business of sanctioning marriage, something would have to fill then legal vaccuum caused by its elimination. If there was no stae-recogniZed marriage, and I left my wife, would she have to get a paternity test to make me support my kids?
10.25.2006 5:28pm
Realist Liberal:
I honestly don't mean to be sarcastic on this, I just honestly don't know. How are NJ Supreme Court justices picked and do they have any sort of election to keep their jobs? I know in CA our justices are appointed but every 6 years there is an opportunity for what amounts to a vote of no confidence. Thus there is some level of accountability to the people (although I'm not sure how much since the procedure has only been used twice).
10.25.2006 5:33pm
nom (mail):
I'm shocked the court issued this ruling before the election- the Jersey Supremes had a rep as being very political. Combined with Foley (as many have commented, much of the attention paid to that issue played off of the public's visceral distaste of homosexuality), this puts homosexuality on the minds of voters; all the anti-gay marriage constitutuonal amendments will pass easily.
10.25.2006 5:34pm
randal (mail):
This is interesting BECAUSE -

"Unions" (or whatever non-marriage marriage is gonna be called) pose a much greater threat to straight marriage than gay marriage does (which poses pretty much zero threat). Silly marriage-defenders are cutting off their noses to spite their collective face!

Doing a "parallel legal scheme" essentially amounts to separating the law from the word "marriage". States like Vermont and NJ are likely to drift towards a statutory scheme along the lines of:

Here's a bunch of obligations of "unions": one two three. Here's a bunch of bebefits: one two five. Oh, and if you're hetero, you can use the word "marriage" instead of "union".

That'll be the only mention of "marriage" in the law - everywhere else will speak of "unions", which covers both and makes things simpler and is guaranteed not to offend the courts.

Bye bye marriage! Unions for everyone.
10.25.2006 5:34pm
Daniel Chapman (mail):
As Private Defender explained in a prior post, they're nominated by the governor and confirmed by the legislature, similar to the federal system.
10.25.2006 5:36pm
GMUSL 3L (mail):
Realist Liberal, Wikipedia sez:

The Governor nominates all Justices to the Court but may chose only among those admitted to the New Jersey bar for at least ten years. Following one full week (7 days) of public notice, nominees are put before the New Jersey Senate for confirmation. Once confirmed, Justices (and all state judges in New Jersey) are given an initial term of seven years. After their initial term, the Governor must reappoint them, and the Senate must grant "advice and consent" again for the Justice to be granted tenure. Justices granted tenure serve until they die, resign, are impeached and removed, or reach the age of 70, at which point they are automatically retired.
10.25.2006 5:36pm
Randy R. (mail):
nom: this puts homosexuality on the minds of voters; all the anti-gay marriage constitutuonal amendments will pass easily.

As well they should, because once gay marriage is banned, those homosexuals will finally be put in their place, right?
10.25.2006 5:40pm
Thorley Winston (mail) (www):
Hard core Republican voters won't see this as any different from gay marriage. They'll see Democratic judges forcing gay marriage on America and they'll turn out in droves to vote for Republicans.


You’re probably right. Among “[h[ard-core Republican voters”, one of the most important issues to the entire base – national security hawks, social conservatives, free market libertarians, etc. is judicial nominees. It’s one of the things that generally unites the entire base particularly when it comes to presidential nominees and Senate races and goes beyond issues like abortion and marriage. Having an activist court legislate its own policy preferences from the bench is exactly the sort of thing that will get likely Republican voters out to the polling place on Election Day.
10.25.2006 5:41pm
Craig Oren (mail):
Chief Justice Deborah Poritz is due to retire tomorrow because of N.J.'s mandatory age 70 retirement provision, and so the decision had to be issued now to avoid needing rehearing.

FWIW, there's a tradition that the court has a 4-3 political split, with the odd seat going to an appointee of the same political party as the governor.
10.25.2006 5:42pm
Daniel Chapman (mail):
I'm not worried about that, randal. Respect for marriage led to the incidental benefits, not the other way around. Gay marriage proponents generally understand this, which is why this issue won't be settled by civil unions.
10.25.2006 5:42pm
egn (mail):
A glib but appropriate response to the Jane Galt post linked above is, "so the hell what?" A better one, perhaps, is to wonder what exactly the social conservatives' doomsday scenario envisions. So far I've heard little more specific than "ooga booga, the gays are coming," and the Galt post cautions only of the possibility that "the institution will fall apart" and that "we may be cutting away something that turns out to be a crucial underpinning." Huh? Galt's analogies involved concerns about specific and quantifiable consequences -- an income tax over 10%, rising divorce rates, etc. This time around, we get nothing aside from mumblings -- "sacred institution... crucial underpinnings... fall apart... mmhmmph... five dollars? Get outta here..."

As Lucille Bluth replied when asked if she would prefer a plate or a platter: "I don't understand the question, and I won't respond to it." If the argument is that dismissal of conservative apocalyptic foretellings is overly hubristic, I'd at least like to hear, in "Galt"'s words, the "plausible story" about marriage falling apart.
10.25.2006 5:43pm
Tacitean (mail) (www):
I've just an hour (or so) to react to the decision, but my view inclines toward the view of GM USL 3L: this is a bit more slight of hand than anything else.

As I say extensively here, this right of civil unions is an innovation, not some comportment with age-old principles of equal protection.

I would love if the state Legislature said "you know, we've been wrong all these years, and marriage needn't be between a man and a woman." But until they do, the weight of history, tradition and law firmly state that marriage is precisely that.
10.25.2006 5:44pm
Kovarsky (mail):
NJ's does not even have an equal protection clause, though the justices have read in an "equal protection component" on occasion in the past.

None of the dissents cited all the way through the litigation argues that there is not an operative equal protection rule in the first section of article i.

usually, criticisms of "naked policyingmaking" should be restricted to radical departures from precedent. based on my reading of this case, the dissents, and its antecedents, while this case might be a "radical departure," it's not because courts are fabricating an equal protection right that is not well established by precedent.
10.25.2006 5:48pm
Craig Oren (mail):
I should add that New Jersey does not have the initiative or referendum, so there is no way to pass a constitutional amendment without approval from the legislature.
10.25.2006 5:49pm
JTB:
Daniel:

By your logic, there'd be no constitutional problem with giving interracial couples the right to "civil unions" but denying them the right to "marry"? Please. Substitute Perez v. Lippold, 32 Cal.2d 711, 198 P.2d 17 (1948) for Loving and Josh’s point still stands.
10.25.2006 5:49pm
randal (mail):
Daniel - that's true, but civil unions are likely to strip the incidental benefits from marriage. Marriage will still be a word, and a well-respected word, but it won't have much legal force. The term for the legal stuff will become "union".

Look, nobody refers to these things as "gay unions". It's not "gay unions" versus "marriage". "Civil unions" are for everyone, and therefore directly compete with marriage. That's gotta be a more harrowing result for marriage-defenders than just sharing marriage with gays.
10.25.2006 5:50pm
JohnO (mail):
Randal:

You say that civil unions pose a much greater threat to hetero marriage than gaye marriage does. If by that you mean that a civil union that lacks all of the obligations of marriage would cause heteros to demand a similar option for "marriage lite," thereby weakening marriage as an institution, I think you're right. But the NJ court seems to be requiring that a same-sex civil union have all of the same benefits AND burdens of marriage, so I'm not sure how that regime would weaken traditional marriage any more or less than gay marriage itself.
10.25.2006 5:50pm
Anderson (mail) (www):
As appalling as segregation was, it was addressed by the Civil Rights Act of 1964

Ever heard of Brown v. Bd. of Educ., Russ? Look it up sometime.

--I think the NJ decision is the way more states will go, legislatively or otherwise. The more people who actually know gay couples, the more absurd it seems that they should be denied privileges that straight married couples take for granted.

Personally, I think marriage is a religious rite, and "civil union" should apply to straights and gays alike. But some conservatives seem to have God and the State confused.
10.25.2006 5:57pm
dejapooh (mail):
Since my marriage is now less meaningful, I am getting a divorce, right after my wife gets an abortion.
10.25.2006 5:57pm
GMUSL 3L (mail):
Kovarsky, and Craig Oren:

Though there is by tradition a 4-3 split in favor of which governor made the last appointment, the court (through the end of the day, when Debbie Landlord, C.J., retires) currently contains 4 Democrats, 1 Independent, and 2 "Republicans".

One such "Republican" is the retiring Chief Justice, who dissented because she thought the opinion should MANDATE gay marriage. The other Republican and the Independent both supported the Majority opinion, along with 2 Democrats. I don't know their particular partisan values, but I do know that Rivera-Soto isn't snickered at like Poritz is when described as a Republican.

Anyway, my point in all this (poorly made and not succinct, I admit) is that there's nobody on the court who could even be described as a textualist once in a blue moon.

Like Roe (via Griswold) and Kelo, this is supported by precedent but completely unsupported by the text.
10.25.2006 5:59pm
PersonFromPorlock:

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."

Of course, when the Legislature meets to consider how best to comply with the Court's order, they could always impeach and remove for usurpation those justices who imposed it. But that would require a certain style, so probably not.
10.25.2006 6:04pm
plunge (mail):
"Actually, you're wrong there. Loving v. Virginia, as I'm sure you remember, dealt with a criminal penalty for BEING married in the state of Virginia."

Irrelevant. The issue before the court was still whether or not bans on interracial marriage could be maintained.

It's truly amazing how similar it was to the current situation. In fact, not only was there no explicit original meaning saying that interracial marriage was a right, but the authors of the law used to strike ban EXPLICITLY said that the 14th and other such amendments were not intended to affect interracial marriage bans. Yet even SCALIA seemed to agree that it was the right result.
10.25.2006 6:04pm
Duffy Pratt (mail):
Here's a question I have: The legislature is not a party in this case. How can the court issue an order to it? Forget about the issues. I think the idea of courts issuing orders to non-parties is a much more frightening aspect of judicial activism than the goal the court is trying to achieve here.
10.25.2006 6:07pm
Russ (mail):
Anderson,

I don't have to look up Brown v. BOA - I've read it many times before and can quote it to you. However, in that decision, the Court did not go to Congress and say, "Thou shalt pass a law that ends segregation." Funny how the South had segregation until the Civil Rights Act, or did I miss something in history class?

you said: "--I think the NJ decision is the way more states will go, legislatively or otherwise. The more people who actually know gay couples, the more absurd it seems that they should be denied privileges that straight married couples take for granted."

That's great - then do it through the legislature, not the courts. The legislature is where laws are supposed to be passed. It's decisions like this one that are making it MUCH easier for opponents of same sex marriage to get such measures on the ballot and onto their own state constitutions, where they are much harder to remove down the line.

When courts make the law, we are no longer a republic.
10.25.2006 6:08pm
Waldensian (mail):

Marriage also bestows enormous private and
social advantages on those who choose to
marry.
Oh man, that is rich.

As I see it, the NJ court has actually struck an important blow against "special rights," in that the state no longer will protect homosexuals from the institution of marriage.

The poor bastards.
10.25.2006 6:09pm
Dan Hamilton:
Bad that will come from same sex marriages.
1. all different types of marriages. 3, 4, more people married to each other.

2. The Idea that Marriage can be redefined will become common.

3. Other changes will come. Term marriages(1 year, etc), and other such.

4. Commited for life marriage will become less because of new marriage types.

5. A separate Marriage for Life with much stronger requirements will be started but few will use it. This failure will again push marriage down.

6. Finally different types of Unions (Marriages) will be common but they will mean less and less.

7. BTW what is the age of consent in your state with parental consent. I want to see the reaction the first time a 15 or less year old boy marries a 35 year old man with full parental consent. "Our Davy married a RICH man, look at the car he bought us." This might bring back the custom of the Bride Price.

That is how Gay Marriage destroys marriage. Not in and of itself but by showing that the defination of marriage can just be changed. Once that starts it cannot be stopped.
10.25.2006 6:14pm
Shermshermy:
Quick question not going to the substance of same-sex marriage:

What is the history in the United States of courts ordering legislatures to enact certain legislation? This seems very different than striking down laws as unconstitutional or even ordering the executive branch to take a specific action.
10.25.2006 6:15pm
JohnO (mail):
Waldensian:

Funny point. There goes the, "Gee, I'd love to marry you, but I can't" line that gays in NJ could use before today to avoid committing. Now they're stuck like everyone else.
10.25.2006 6:16pm
Steve:
When courts make the law, we are no longer a republic.

Man, as if they weren't satisfied just destroying the institution of marriage, they had to take down our entire system of government.
10.25.2006 6:20pm
plunge (mail):
"Bad that will come from same sex marriages."
1. all different types of marriages. 3, 4, more people married to each other."

Unlikely. Gay marriage doesn't actually change the legal structure of marriage in any way. There's no forseeable way to build an equal protection case on polygamy the way one would on gay marriage.

"2. The Idea that Marriage can be redefined will become common."

Some changes are positive without magically meaning that all changes, including negative ones, being a possibility.

"3. Other changes will come. Term marriages(1 year, etc), and other such."

Maybe: but what does gay marriage have to do with that? Straight marriage has been changing legally drastically over the last century, entirely without gay marriage. Again: if these things are bad for marriage, then oppose them.

"4. Commited for life marriage will become less because of new marriage types."

One might argue that this is the result of OPPOSING gay marriage. At least gay marriage keeps everything nice and universal and unified. Barring gays means that they will just have to construct alternative arrangements... which straight people will then be able to use as well.

"7. BTW what is the age of consent in your state with parental consent. I want to see the reaction the first time a 15 or less year old boy marries a 35 year old man with full parental consent. "Our Davy married a RICH man, look at the car he bought us." This might bring back the custom of the Bride Price."

Why should it be any worse when it involves gay people: I find the idea of a 15 year old girl marrying a 35 year old guy just as icky. They are both bad ideas.
10.25.2006 6:21pm
Russ (mail):
Steve,

I'm glad you fnially see the full problem.
10.25.2006 6:24pm
BobNSF (mail):

5. A separate Marriage for Life with much stronger requirements will be started but few will use it.


And some of the people who will go for that will be same-sex couples.

Oh, no!!!

(eye-roll)
10.25.2006 6:33pm
Teddy_KGB:
Ok - so after reading the decision, I think the opinion is extremely persuasive. The opinion seems like a logicial extension of NJ's legislative policy, and the justifications argued by the state were limited and therefore, unable to justify the NJ equivalent of rational basis scrutiny.

I think the final few pages of the opinion are especially well written, when the court discusses why it can't just bestow the right of same-sex marriage on the plaintiffs. "Although courts can ensure equal treatment, they cannot guarantee social acceptance, which must come through the evolving ethos of a maturing society." Not bad writing, especially for a lawyer.
10.25.2006 6:40pm
Kovarsky (mail):
GMUSL3L,

Anyway, my point in all this ... is that there's nobody on the court who could even be described as a textualist once in a blue moon.

My point is that according to the logic of those decrying the atextual recognition of an equal protection right as "judicial policymaking" would be, by their logic, bound to put someone like john roberts into that category.

Republican or democrat, all the way up through the appeals process, nor in any of the other cases I have looked at, has anyone disputed the existence of an atextual equal protection right. That means (like many federal constitutional doctrines), although it is not rooted in text, it is precedent. Many judges (e.g. Roberts) place a great deal of weight on precedent. If they honestly abide by that precdent, they they are not engaging in judicial policymaking. they're not voting they're feelings, they're looking at precedent.

now, and i've made this caveat before, I am merely making this point as to the existence of some equal protection right in article 1, section 1. i am NOT saying anything about the presence or absence of same sex application in that precedent. but the boorish criticism of the mere identification of an equal protection right betrays a greater ideological valence than does the decisionmaking of the judges that criticism seeks to indict.
10.25.2006 6:40pm
Daniel Chapman (mail):
For those of you who are trying to have a debate about loving, please go back and read the context of my comment. It was aimed at a particular argument and no more. Here's a summary:

Duncan Frissel: Nothing's stopping gay couples from getting married in private, religious ceremony.

Josh: Same goes for the plaintiffs in Loving v. Virgina

Me: No... Loving actually criminalized the act of getting married, even in a private, religous ceremony.

That's it. Relax.
10.25.2006 6:42pm
eddiehaskel (mail):
Mr. Hamilton:

The sound of slippery slopes is wonderful.
But there is no basis in fact or fiction for any of the statements you have made. Perhaps when the problems of sexuality are removed from the definition of "marriage",or at least the definition used by the government, the institution might even become stronger.

You miss the real point: Government is not in the business of morality; at least it should not. So if there is a overriding priniciple such as "All men are created equal", then why should any particular religious construct (which are not textually included in the laws of the government {and which are expressly forbidden to be included in any such laws}) or "definition" of marriage hold sway.

The easy example is slavery.

SO let me throw out this question to all of you textualists:

Was a constitutional amendment required to repeal slavery? And if so, how can slavery be compatible with the Constitution? Is it impossible that there are incompatible portions of the Constitution? And who is the arbiter of those inconsistencies? And what if in a rage of myopia an amendment is passed that reinstated slavery? Is that compatible with the original meaning of the Constitution? Can these types of bells be unrung?

And it is truly wonderful to here someone complain about the tyranny of precedents and put forth the misguided "ideal" that there is one absolute textual meaning to our Constitution. At least precedents are supported by a record and an argument and given a context. But it is the height of hubris to think that anyone today can divine the abolute meaning that the Framers intended (isn't that "re-writing the constitution without proper legislative authority"?). I find it disingenuous to think that the Framers would have wanted the Constitution to be limited by their own historicity.
10.25.2006 6:43pm
scipio79:
Says the NJ Sup Ct:
SSM is not a fundamental right. However, you must create legislation which offers all the benefits of marriage. However, you do not have to call it marriage.

Gee, thanks o-great sapient black robed ones.

I'm going to don my black robe and go to the local bank. I will then lay a 9mm on the counter and say to the teller, "You don't have to give me money, for I have no right to it, but you must decide whether you would like me to use my weapon." As long as I'm in a black robe, it's not called a "robbery." It's a simple choice, hand the money over, or face the power of my 9mm.

Isn't interpretation fun!
10.25.2006 6:44pm
Kovarsky (mail):
Scipio79,

say what?
10.25.2006 6:49pm
KMAJ (mail):
This is really a 7-0 pro-gay marriage 'rights' decision, the implementation is the 4-3 split, 4 giving the legislature 180 days to create that right, whether it be allowing gay marriage or creating another avenue to attain those 'equal rights', 3 believing that the court should impose that right by court ruling. This is an example of legislating from the bench and/or dictating to a co-equal branch what they must do and giving them a deadline by which they must do it.

It is rulings like this that have brought criticism down on the judicial branch. A NJ state legislator has introduced legislation calling for the impeachment of all 7 justices for this ruling. This will go nowhere, but it will fuel negative views of the judiciary.
10.25.2006 6:50pm
Phutatorius (www):
Um, Russ, our system of republican (that's a small "r," by the way) government has three branches -- and for good reason. The dynamics of representative democracy of necessity create incentives for elected officials to think short term and to protect the interests of political majorities. If that were the end-all/be-all of "republican government," and there were no tenured judiciary to pronounce constitutional protections for majorities, we'd be working on our third or fourth civil war by now.

If you want to live in a society where "the voters rule, period," and a majority of elected officials run everything, and political minorities are powerless -- I'm sure there are a few recently-vacated homes in Baghdad you could move into.

It doesn't surprise me at all that Bush's gospel of purple-thumbed "democracy" has led to sectarian upheaval and the suppression of minorities in Iraq. What we're looking at over there is just the kind of bare-knuckles "democracy" that the GOP would foist on us here.

But there's more to the American system than the franchise alone. I singled out Iraq as the most incendiary example, but there are a ton of on-the-brink "democracies" out there, and the common flaw in all of them is the lack of an independent judiciary that has the authority and legitimacy to check the officials with the guns. We're lucky to have that.

Let me repeat that: we're lucky.

In third grade we all learned the virtue of "majority rules." In fourth grade we should have learned the virtues of checks and balances, judicial review, and the Bill of Rights. Maybe we were all playing too much kickball, at the time, to catch this nuance. But it's pretty intuitive: if one kickball team had all the big kids, and it started beating up on the smaller kids on the other side -- well, you'd appeal to the teacher, right? And you'd be glad she was there.

If you want to argue that courts, lacking any real power to enforce their mandates, have to play a delicate game with a limited number of "chits," then that's a serious conversation. A decision like this can cost some legitimacy chits, and we could argue whether the outcome is worth the expenditure. It is certainly true that a court that runs too far ahead (or lags too far behind) public opinion puts its legitimacy at risk -- and it could provoke a game of chicken with the political branches that could, in the end, break the system.

It's equally true, though, that a court that rubber-stamps the will of elected officials -- simply because they're elected -- has no reason to exist. Then it's Iraq all over again. Good luck with that, folks. I suppose one upside is we won't have to put up with Justice Sundays in your ideal world; we'll have plenty of summary gestures of mob "justice" and sectarian violence to entertain us.

Just hope you never find yourself in a minority in that America.
10.25.2006 6:55pm
EL SL:
"'3. Other changes will come. Term marriages(1 year, etc), and other such.'

Maybe: but what does gay marriage have to do with that? . . . "

I agree with plunge. This decision recognizes the societal value of permanent relationships (of course, severable by divorce actions). Society recognizes this value, and offers incentives towards marriage by awarding many important rights to couples who make such a commitment. The Goodridge case from Massachusetts lists these rights.

Claiming that a "term marriage" construct, and the other possible outcomes warned of by Dan Hamilton, will result spring from this decision overlooks the decision's focal point: the rights unavailable to couples prevented from entering a marriage.

The rights as they exist are extended to a couple. The court's decision prevents restricting this conveyance of rights to a couple composed of by one man and one woman. Said another way, it prevents legal discrimination against a couple on the basis of gender. Term marriages, 3+person marriages, and marriages of minors do not logically follow from the decision.
10.25.2006 6:55pm
Kovarsky (mail):
KMAJ,

good to see you, i've been gone awhile. the legislature has said the statute as written or interpreted - not to allow identical benefits to same sex couples - is unconstitutional. it's not legislating from the bench to give them 180 days to correct it. i doubt the court felt like striking down the whole marriage code. the court recognized a right, and it has to fashion some remedy. i'm not sure why you think that's so unusual. more unusual than, say, Booker's severance of the sentencing guidelines provision that made those guidelines mandatory. These types of things happen all the time.

and i think it's bizarre that in one paragraph you accuse the judiciary of an assault on a co-equal branch (when it reached a unanimous decision), and in the next paragraph champion the jackass who introduced legislation to impeach them. i think what you call "assaults," others would call "checks and balances."
10.25.2006 6:58pm
Colin (mail):
A NJ state legislator has introduced legislation calling for the impeachment of all 7 justices for this ruling. This will go nowhere, but it will fuel negative views of the judiciary.

I agree - baseless attempts to impeach justices for a rational and persuasive opinion merely fuel irrational phobias. There is already plenty of that going around; see the rants about "black robed" tyrants, the end of the Republic, Clayton's usual growling about bestiality, and all the other acts in the parade of animus.
10.25.2006 7:00pm
scipio79:
Kovarsky,
The Judiciary, demonstrating its full power, says to the legis, "You don't have to create SSM, for homosexuals have no right to it, but you must decide whether you would like me to use my power." As long as I'm The Judiciary, my insistence is not called "tyranny," I am merely first among equals. It's a simple choice, legis, create SSM's without calling it that, or face the power of The Judiciary.

Compare to previous post.
10.25.2006 7:01pm
Daniel Chapman (mail):
Heh... anyone else find it amusing that someone would use and highlight the word "animus" in a comment on "irrational phobias" of judges?
10.25.2006 7:04pm
Kovarsky (mail):
scipio79,

what? i mean, what are you saying? that judicial review is tyrannical? do you want to repeal marbury? or are you saying that THIS exercise of judicial review is tryannical, in which case you'll probably want to keep marbury after november 7.

would you care to clarify specifically what you're saying, or are you just sort of ranting?
10.25.2006 7:06pm
Phutatorius (www):
Yeah: you guys are going to love the Justice Alitos of the world, once the Dems take back Congress.
10.25.2006 7:09pm
KMAJ (mail):
Hiya kovarsky,

Good to see you, too. It could be called checks and balances, but that would still not deny that dictating a deadline to do something is legislating from the bench. Now, the real check would come in if the legislature and governor pulled a Jackson, and said, now you enforce it, we will not bow to your dictate.

I only mentioned the legislator as an example of the negative reaction this creates for the judicial branch. Mass impeachment certainly could not be taken seriously as a 'check' that has any reality of occurring attached to it. But there will be continued negative publicity generated because of this decision, which is the ultimate check, where the true power is supposed to lie, with the people.
10.25.2006 7:14pm
Steve:
Yeah: you guys are going to love the Justice Alitos of the world, once the Dems take back Congress.

And you guys are going to love defending the proposition that legislative majorities don't know what they are talking about.

I look forward to this development; the overruling of progressive legislation will be unfortunate in the short term, but in the long term it will display the emptiness of the whole "judicial activism" argument to one and all.
10.25.2006 7:17pm
Colin (mail):
Chapman,

My bad. I was thinking of "animus" as a Latin word, forgetting that it's also an English one.
10.25.2006 7:18pm
scipio79:
Kovarsky,

Judicial review is an integral part of republican democracy. (I'm paid to assist in it everyday). However, review of law is not creation of law and it certainly is not the insistence of new law. I personally believe that a separation of powers issue could be found in this opinion, but I do not know enough about the NJ Const to say that definitively. Without doing a great deal of research on the matter, it seems as if the Court is saying, "No, there's not a fundamental right to SSM, but because the legis has passed law X, Y, and Z protecting homosexuals in the past, then they must provide some sort of civil union equivalent to homosexuals now." They are not saying that they should, but that they must. Decisions about culture and societal trajectory are not to be made in such a manner and this judical fiat is manfestly beyond the power of presumably equal brances of govt.
10.25.2006 7:18pm
Kovarsky (mail):
I would endure an eternity in hell or maybe even a full 18.5 minutes of rush limbaugh (did you see what he said about michael j fox) if it would banish the idiotic term "judicial activism" from public discourse.
10.25.2006 7:22pm
Daniel Chapman (mail):
Oh. What's it mean in latin?
10.25.2006 7:24pm
scipio79:
soul, i believe
10.25.2006 7:25pm
Daniel Chapman (mail):
subtle, Kovarsky... subtle.
10.25.2006 7:28pm
Kovarsky (mail):
scipio79,

i think that is exactly what they're saying. the marriage code or whatever you call it is unconstitutional because it does not contain provisions affording identical benefits for same sex unions. but if it's unconstitutional, it's unconstitutional as of today (spare me metaphysics and epistemics and ontology here). i don't see why giving the legislature 180 days to fix something that hte court could strike down today is tyrannical; in fact, it's better than the alternative.
10.25.2006 7:29pm
Kovarsky (mail):
i know this is off topic, but seriuosly, did you see what rush said about michael j fox? he accused him of not taking his parkinson's meds so that he could make a more emotionally compelling commercial for stem cell research. what a prick.
10.25.2006 7:30pm
Phutatorius (www):
Steve: I never said legislative majorities don't know what they're talking about. I simply said that they can't be the beginning and end of a working system. See my longer, slightly less snarky comment above.

(Don't get me wrong, though: I reserve my right to ridicule a Democratically-controlled Congress -- though I'll probably find their policy positions less objectionable overall.)

I think the interesting turn for the Supreme Court has already come, with laws enacted by a GOP Congress finding their way up to the Court for review under the Commerce Clause -- the voting pattern in Raich, in which you had conservative justices voting to invalidate a marijuana restriction on federal-power principles, while the liberals would have upheld the regulation, is actually encouraging. You saw that these guys aren't always voting for their preferred outcomes (or at least the policy outcomes we'd predict for them).

Does anyone know if the Court will be considering a Commerce Clause challenge to the partial-birth abortion law? That might be the true test.

But the arrival of a Democratic Congress will simply restore the status quo ante, where states' rights principles led directly to outcomes that conservatives favor. So we won't get to know whether, say, Scalia, J. cares more about the precious text of the Constitution than he does about embryos.

I agree, though, that a condition in which conservative justices go hog-wild striking progressive legislation will give some juice to the left to argue that "judicial activism" is really just another word for "that decision I didn't like." Maybe it will take some of that to finally hammer that point home. But I'm not confident the likes of James Dobson will ever get that message.
10.25.2006 7:37pm
Daniel Chapman (mail):
"Snippets of my testimony were featured on several of the nightly news broadcasts. One line in particular from my prepared statement got a lot of play: "In my forties, I can expect challenges most people wouldn't face until their seventies and eighties, if ever. But with your help, if we all do everything we can to eradicate this disease, when I'm in my fifties I'll be dancing at my children's weddings." I had made a deliberate choice to appear before the subcommittee without medication. It seemed to me that this occasion demanded that my testimony about the effects of the disease, and the urgency we as a community were feeling, be seen as well as heard. For people who had never observed me in this kind of shape, the transformation must have been startling. " - From Fox's memoirs "Lucky Man"

Prick or not, Fox has admitted to doing it before.
10.25.2006 7:38pm
randal (mail):
scipio79 - sometimes you have to have some common sense when making up remedies. Would you have preferred the court to have struck down the whole NJ marriage scheme as unconsitutional? Let's start with saying they did that under their power to "review the law" as you say. Ok so fortunately, instead of that, out of deference to common sense and practicality, they created a less severe remedy. See?
10.25.2006 7:40pm
Kovarsky (mail):
daniel,

please don't do this. rush was being an asshole, and don't try to defend him. if you want a response to your argument, rush said "i had never seen him this way before," so he obviously had not seen the committee testimony.
10.25.2006 7:44pm
scipio79:
Kovarsky,

If "We the People" are truly the rulers of our own destiny, then please expalin to me how the judiciary can make a thing constitutional that did not exist in 1949 (the date, I beleive of the creation of the latest NJ Const. Or conversely, calling the marriage status quo of 1949 unconstituional. If a general concept is to evolve, that concept must be changed by the source of ultimate power, namely, We the People, not a receptacle of our power, the judiciary. Any clear and rational reading of the Constituion or the NJ Const does not compel SSM, even the NJ SupCt agreed. I tend to think of it like this. The constituion is a "wall." The Legis and Exec are ever changing forms within the wall. The Judiciary's only role is to keep the form from spilling over the wall. However, if the Judiciary is creating the form anew, or recreating the wall, the people have lost the ultimate power to control society to a mere receptacle of power. Is not the usurption of power by a mere receptacle of power not tyranny? However, If the people of NJ want to give homosexuals SSM or civil unions, please do so. But to be compelled by SupCt to do so is not, and could never be called, liberty.
10.25.2006 7:46pm
Daniel Chapman (mail):
heh... You hijack a thread and then try to take the high ground? Classy. I've never even listened to Rush's show, but I heard about this online. If you're going to ham-handedly toss the issue onto the table, don't stop me from at least putting the other side on the table.

I'll make a deal with you though... how about we both just stick to the topic at hand?
10.25.2006 7:47pm
scipio79:
randal,

common sense is knowing the limits of your power.
10.25.2006 7:49pm
BobNSF (mail):
From the Latin:

anima : life, soul.

animus : character, intellect, memory, consciousness, often = mind.
# animus : courage, vivacity, bravery, will, spirit, soul.
# animus : soul, spirit, intellect.
10.25.2006 7:51pm
Kovarsky (mail):
daniel,

i've listened to rush's show (which you haven't), you read about it online (i listened to the excerpt several times), so lets use a little bit more discretion in throwing the "ham handed" around. i heard rush's tone; you didn't. i heard rush say "ive never seen him act that way." you didn't. you read something about how he testified before a subcomittee once without taking his meds. and you used it in a context to defend what rush did, which is reprehensible. and i can hardly be accused of hijacking the thread; i believe i've posted on-topic more than any other commenter.
10.25.2006 7:56pm
BobNSF (mail):
Better yet, from the English... :-)



Main Entry: an·i·mus
Pronunciation: 'a-n&-m&s
Function: noun
Etymology: Latin, spirit, mind, courage, anger
1 : basic attitude or governing spirit : DISPOSITION, INTENTION
2 : a usually prejudiced and often spiteful or malevolent ill will
3 : an inner masculine part of the female personality in the analytic psychology of C. G. Jung -- compare ANIMA
synonym see ENMITY
10.25.2006 7:57pm
Daniel Chapman (mail):
Ham-handed referred to the clumsy transition you used to this topic. I stand by it.

All I'm saying is he did it before. Let people draw their own conclusions from that. I even conceded that Rush may have been a prick if you remember right.

And I still accuse you of hijacking the thread. The fact that you were on topic for several hours previously doesn't really mean much.
10.25.2006 8:00pm
BobNSF (mail):
What I want to know is, when we saw Rush wiggling and squirming while mocking Michael J. Fox, was that Rush on or off his Viagra?
10.25.2006 8:03pm
Kovarsky (mail):
scipio,

i think i have been crystal clear that i am not arguing that the SSM question is obvious. i have been CRYSTAL clear that i am arguing that the "these are judicial policymakers because, look, article 1, section 1 doesn't even say equal protection," argument doesn't take into account that EP is clearly uncontroversial precedent, despite the absence of that term in the document itself.

The constituion is a "wall." The Legis and Exec are ever changing forms within the wall. The Judiciary's only role is to keep the form from spilling over the wall. However, if the Judiciary is creating the form anew, or recreating the wall, the people have lost the ultimate power to control society to a mere receptacle of power.

i think mitch hedberg put it best when he said, "that wall is relentless."
10.25.2006 8:05pm
josh:
Daniel Chapman

Still not convinced by your Loving explanation (or really understanding it). You say, "Loving v. Virginia, as I'm sure you remember, dealt with a criminal penalty for BEING married in the state of Virginia. The couple got married, and the state sentenced them for it. (25 years or exile, I believe) In this case, if the couple were married in a religious ceremony, nothing would happen."

While your point may have been very narrow (unequal treatment with respect to "BEING" married, versus unequal treatment with respect to the civil rights that attach to being married), I'm not sure how that supports any criticism of the NJ opinion. In both cases (criminal penalty for "BEING" married or unequal rights for the same status), the state discriminates.

If you don't disagree, and were only distinguishing the NJ case from Loving based on the form of discrimination, my apologies for criticizing your post. However, your original post seemed to take issue with gay couples' desire for the state's sanction of their union, which is the whole point of the NJ case and Loving -- namely, that the state should not discriminate -- whether through the criminal law, or by the refusal to extend the same benefits.
10.25.2006 8:31pm
Curmudgeon:
This all beg the question, why is relevant comparison to married people? The court could just have easily said that the equal protection only requires that gays be treated the same as single, hetrosexual people.

In the end, single people just got screwed again . . . this is a dark day for those who believe in tolerance and diversity.
10.25.2006 8:35pm
KMAJ (mail):
kovarsky, the NJ Supreme Court overstepped their bounds when they went beyond saying the legislature should do something and stated specifically what they must do and within what time frame. That is a clear violation of the role of the court. If issuing such a dictate is acceptable, couldn't they have just as easily ordered a referendum on gay marriage put on the ballot ? It becomes a slippery slope when one starts blurring the line of where the courts power is legitimate and allowing it to reach into the legislative or executive realm. Remember, the judciary is a part of that 'wall' as well, not just a controller of the floodgate. It would be flawed to hold the judicial branch as some superior branch that is not subject to the flaws and frailties of the executive and legislative branches.
10.25.2006 8:36pm
Kovarsky (mail):
KMAJ,

The law is unconstitutional. They could have struck down the code containing it. They didn't have to give them 180 days. Or, they could have excised the unconstitutional parts of the code, leaving inact only a residue that they think the state legislature would have passed, but that's a sucky way (see the suckiness of the booker remedial opinion) of fashioning a remedy.

I don't understand your argument. The fact that they specify a timetable for correcting the law is GENEROUS to the other coordinate branches.
10.25.2006 8:42pm
KMAJ (mail):
kovarsky, instead of dictating 'what' they must pass, they should have told them action was necessary. The legislature has many options, including the total removal of the offending law. The court has no role in stipulating or dictating a specific action based on what is acceptable to them. They are unelected and answer to no one, once appointed. Being able to be impeached by a 2/3 or 3/4, whichever the NJ constitution provides, is hardly an adequate disincentive to prevent overreach in a lifetime position. Of all the branches, because of their unelected status and lack of easily enforced accountability, barring criminal behavior, they are far more easily subject to tyrannical misuse of power.
10.25.2006 8:53pm
Steve:
Does anyone know if the Court will be considering a Commerce Clause challenge to the partial-birth abortion law? That might be the true test.

I haven't read every brief submitted, but I believe that none of the parties in any of the lower-court cases raised a Commerce Clause argument. Apparently everyone knows the argument would have no shot.
10.25.2006 8:57pm
Kovarsky (mail):
KMAJ, the legislature can do whatever they want. Within 180 days, as opposed to today, it has to be constitutional.
10.25.2006 9:22pm
Daniel Chapman (mail):
Josh... I don't know how I can be any clearer. I haven't critized the NJ opinion. You said that the plaintiffs in Loving v. Virginia had the same right to get married in a private, religious ceremony that a gay couple in NJ have today. You are wrong. If a gay couple were to be married in a church, the state is obviously prevented from throwing them in jail for it. That's exactly what Virginia threatened to do to the plaintiffs in Loving.

Understand? If you have a problem with whether the right to marry in a private, religious ceremony is relevant, take it up with the guy who made it, but choose a better counterargument.
10.25.2006 9:41pm
josh:
Chapman

Take it easy. You've just pointed out the fact that you've made an entirely irrelevant comment here. That's fine. I apologize for attributing an argument to you that wasn't yours. Thank you for pointing out that Loving's mode of discrimination differed from NJ's.

So I guess my point that Loving controls applies to the critics of the NJ decision -- a distinct group of which you are not a part. I guess I just got confused by your quoting of the dissent in your original post and your question:

"Is there really anyone so degraded that "the intangible benefits that flow from being civilly married" are important to them. That they require the government to bless them.The beauty of sacremental marriage is that the bride and groom marry each other and confer the sacrament on each other. It's the only sacrament that can be regularly (in non-emergency cicumstances) performed by civilians who are unordained. I guess secularists feel the need for a government sacrament because they are missing others."

I guess I got confused because I thought the focus of the debate about "the need for a government sacrament" (as you put it) actually was a debate about the rights attendant to state-sanctioned marriage. Not just the legal rights it confers, but the equality in the eyes of society in general.

And my point was (not directed at you, since you agree with the opinion) that it is irrelevant which form the state discrimination takes. Whether the state criminalizes interracial marriage or refuses to grant the same rights to gay couples that come with the "government sacrament" (as you call it), it's all discrimination.

But since none of that applies to anything you have written in this thread, please feel free to ignore.
10.25.2006 10:04pm
Mark Field (mail):
Daniel, you're right that there was a criminal statute at issue in Loving, but the Court there did more than eliminate the criminal penalty, it also eliminated any other discrimination as well. That makes it similar to the gay marriage issue.
10.25.2006 10:04pm
Duffy Pratt (mail):
Kovarsky:

"[T]he Legislature must either amend the marriage statute or enact an appropriate statutory structure within 180 days of the date of this decision."

This sounds like an order to me. And the legislature isn't even a party...
10.25.2006 10:06pm
Chumund:
I think the court was indeed a bit unclear in its remedy section, insofar as it did not explicitly discuss some possible courses of action (such as creating the necessary equality by reducing the rights and burdens of straight marriages, as opposed to increasing the rights and burdens of gay marriages/unions).

Still, in context, it is clear that the court was merely instructing the legislature as to what would be required in order to bring the statutory scheme into compliance with its holding. On that subject, Duffy Pratt's shortening of the relevant quotation is a bit misleading. The initial clause Pratt omits is "To bring the State into compliance with Article I, Paragraph 1 so that plaintiffs can exercise their full constitutional rights, the Legislature must . . . ." So, this is actually a conditional statement not a direct order: it is simply stating what the legislature must do IN ORDER TO accomplish a particular goal, namely to bring the state's marital scheme into compliance with the state's constitutional requirements.
10.26.2006 10:13am
Truth Seeker:
How about adding other aspects to the debate?

What about the issue of if our society embraces gay marriage, is there any hope to convince the world’s 1.3 billion Muslims that Democracy and freedom are the way to go? These guys are 14th century barbarians who want to stone gays to death. Wouldn’t a Western society that tolerates gays be more likely to appealing to them than one that celebrates gay marriage? It seems clear that if we don’t convince the Muslims to be more tolerant, we are going to end up in a hundred year clash of civilizations that may end up as nuclear war.
10.26.2006 11:19am
Russ (mail):
Phutatorius,

The courts do have a legitimate role, but their power is NOT paramount over that of the legislature. The founders intended the legislature to be the center of gravity here, not the courts - which is what you seem to suggest.

If the NJ Supreme Court wanted to strike down the law, though I disagree, that's within their purview. However, telling the legislature they must do something, even going so far as to enact a timeline, is a usurpation of their powers.

It is the courts' purview to apply law, not to create it. For too long the courts have been reading in rights that simply are not in the constitution. This is why people have been trying to amend those constitutions. I am looking forward to the day when a court tries to declare a constitutional amendment as unconstitutional(I know several state ones have been found in contrast to the federal constitution, but I'd love to see the schism when someone does something at the federal level - /sarcasm off now).

The rule of law helps make America great - the rule of judges does not.
10.26.2006 11:23am
lucia (mail) (www):
TruthSeeker,
I don't know about anyone else, but I am disinclined to accept you that we should write our laws governing domestic arrangements to fulfill the wishes of non-US citizens who you describe as 14th century barbarian muslims.
10.26.2006 11:32am
Chumund:
lucia,

But don't you recall how we abandoned capitalism in order to appease the Soviets?
10.26.2006 11:37am
Duffy Pratt (mail):
Chumund:

I would agree with you if it weren't for that pesky word "must." The court didn't say that, the legislature "could" do X to make the marriage laws constitutional. It didn't say that doing X would make the laws constitutional, and that the Court would refrain from ordering injunctive relief for 180 days to give the Legislature the opportunity to cure the defects currently in the law, if the Legislature so desired. It didn't say, as you seem to think, that if the Legislature wanted to make the law constitutional, it must to X. Instead it said the Legislature must do X.

The other problem with your interpretation is that not only does the Court say the Legislature must do something, but it gives the Legislature a deadline. By your interpretation, is the Court saying that, as a matter of fact, the Legislature could not bring the statutory scheme into compliance with the Constitution in 185 days?
10.26.2006 1:15pm
Chumund:
Duffy Pratt,

Suppose I say to you, "To get to the bathroom, you must go through that door." Am I giving you an order to go through that door?

Because that is the exact structure of the sentence in question: "To bring the State into compliance with Article I, Paragraph 1 so that plaintiffs can exercise their full constitutional rights, the Legislature must either amend the marriage statute or enact an appropriate statutory structure within 180 days of the date of this decision."

As for the 180 days, I think it is not so hard to understand when you focus on the fact that the court is providing a remedy in part "so that plaintiffs can exercise their full constitutional rights." In other words, the Legislature could achieve the same schematic result in 185 days, or 1850 days, or more. But the longer the delay the greater the deprivation of the rights of these particular plaintiffs who have sought relief.

Now, one might ask why the court is allowing even another minute to pass with the plaintiffs being deprived of their constitutional rights, let alone another 180 days. But the court already explained that it alone cannot fashion the requested relief for the plaintiffs. So, it has extended the time for legislative action to make it practically possible for the plaintiffs to achieve relief.

Honestly, I don't think this is hard to understand. Again, what the court was arguably unclear about was the range of possibilities open to the legislature. But the fact that the court did in fact define what the legislature would have to do in order to comply with the state constitution and was given a deadline in which to do that is hardly a novel or inappropriate remedy in a case like this.
10.26.2006 3:11pm
Mark Field (mail):
Would everyone be happier if the NJ court had said that

"To bring the State into compliance with Article I, Paragraph 1 so that plaintiffs can exercise their full constitutional rights, the Legislature must either amend the marriage statute or enact an appropriate statutory structure with all deliberate speed."
10.26.2006 4:42pm
Phutatorius (www):
Yeah, maybe I'm missing some of the nuances of this, but I should think what the court did, remedy-wise, was pretty deferential. It could have acted on its own to sever the offending portions of the marriage laws. It could have invalidated the entire scheme. These would have been instantaneous, drastic actions.

The way I read it, the court instead gave the legislature an advance opportunity to fix its own laws -- per its own preferences -- before the court did it for them. Maybe it's the tone you find objectionable: it's certainly more imperious to tell someone to do x than it is to tell them they can't do y.

I guess I wonder what remedy you would find palatable, given the ruling.
10.26.2006 6:09pm
Duffy Pratt (mail):
One way they could have worded the remedy would have been to remand the case and order the lower court to hold the case in abeyance for 6 months, before issuing an injunction requiring the officials to issue the marriage certificates.

This doesn't tell the legislature to do anything, and it keeps the Court's actions within its own power. If the legislature amended the statute in the meantime, or came up with a parallel "union" structure, then there would be a good argument to dismiss the case as moot before the injunction ever issued.

This may simply be picking at nits, but I think there is a big difference between this approach, and the Court simply telling the legislature what to do. For one thing, it would make clear that the court will issue an injunction after a certain period of time. As it stands, after six months, what will these plaintiffs have to do to get relief? The court has already made it clear that it is willing to issue a declaratory judgment, but not necessarily an injunction. All in all, the remedial part of the decision is simply awful.
10.27.2006 12:44am
Chumund:
Duffy,

But would you see a problem with the court explaining what the legislature could do in order to "moot the case"? In other words, suppose in your proposed remedy section, the court wrote:

"To moot the case, the Legislature must amend the statutory scheme to do either X or Y."

Because honestly, I don't think there is a substantive difference between that and what the court actually did. In fact, all that would really be missing is the threat of an injunction, and I am not sure that such a threat would be necessary or wise at this stage.
10.27.2006 5:47am
Duffy Pratt (mail):
Chumund:

It's OK for the court to explain the constitutional basis for its judgment. To announce beforehand that such and such an action would moot the case strikes me as issuing an advisory opinion. Its even worse if a court states what "must" happen to moot the case. Who knows what would happen once the legislature amends the statute. Maybe the governor vetoes? Maybe the administrative authority interprets the amendment in a way that makes it impossible for these plaintiffs to get a license. Maybe the legislature gets lucky and all the plaintiffs die. (I would not recommend the legislature moot the case by hiring hit men, but this is New Jersey... There's still alot of space in the Meadowlands.)

And if the Court is OK with issuing an advisory opinion on this part of the equal protection claim, why are they hesitant to rule now on whether not calling a new sceme "marriage" would be OK?

Finally, I think its worse for a court to announce a constitutional violation, but not be willing to enjoin it, than it is to show what people here are calling "restraint" or "deference." If the legislature ignores this decision, or defies it, or if the governor vetos, then the court is going to have to do something. Right now they are leaving open the possibility of doing a big Emily Latella (Nevermind). I think its more seemly for the court to delay an action, than it is for it to issue orders to the legislature.
10.27.2006 10:53am
Chumund:
Duffy,

I think we still disagree on the import of the crucial sentence, so this may not be a productive conversation. I will note as an aside, however, that the ban on advisory opinions is a function of the federal constitution, and does not necessarily apply to state courts (I have no idea what the law on this is like in New Jersey).
10.27.2006 11:36am
Duffy Pratt (mail):
Yeah, good point. There's alot of that going on here. I haven't said much about the merits of this thing, because I don't know anything about New Jersey equal protection law (although I remember a screwy land use case out of New Jersey based on an expansive view of equal protection). And then, I go and assume that the same framework of judicial power that I am used to will exist there. Mea Culpa.
10.27.2006 2:12pm