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The New Jersey marriage decision and the unstable middle ground:

This is the first of two posts on the New Jersey marriage decision, the first judicial opinion from a state supreme court anywhere in the nation to hold unanimously that gay couples are entitled to all the benefits and protections of marriage. In this post, I'll discuss some of the state constitutional arguments and how the court handled them, as well as what it might portend for public policy in other states. In the next, I'll talk about the remedy ordered here -- equal rights, not the status of marriage.

The gay-marriage litigants in the New Jersey case made two arguments. First, they argued that the "liberty" protected by the state constitution includes a fundamental right to marry that extends to same-sex couples. Second, they argued that prohibiting marriage to same-sex couples denies them the equal protection of the law.

The court's answer to the fundamental right argument has been given by every state supreme court to look at the issue. It follows the federal precedents on fundamental rights claims by protecting only those rights "objectively and deeply rooted in the traditions, history, and conscience of the people of this State." Because there is no deeply rooted, historical "right to marry someone of the same sex," the court held, the claim fails.

The court recognizes that "[h]ow the right is defined may dictate whether it is deemed fundamental." This is by now a familiar issue in fundamental rights cases: the more specifically a right is defined the more likely it will be rejected as "fundamental." There is a fundamental "right to marry" recognized by federal and state courts, but no fundamental "right to same-sex marriage." Sometimes courts define the right at stake broadly -- protecting the "right to marry" of prison inmates or protecting the "right to marry" of interracial couples -- where a more specific description of the right would cause the claim to fail (there's no historic "right of prison inmates to marry" or "right of interracial couples to marry").

So far, so good: the New Jersey court acknowledges the level-of-generality problem. But then the court chooses the specific definition of the right at stake ("a right to same-sex marriage") with a very unsatisfying explanation for its choice. It cites, for example, state statutes that deny marriage to "polygamous, incestuous, and adolescent" unions as evidence that "the liberty interest at stake is not some undifferentiated, abstract right to marriage, but rather the right of people of the same sex to marry." Citing state statutes limiting marriage -- not for the evidence they provide about traditions but for deciding the threshold question of how broadly to define the right — is an odd way to proceed. If the Supreme Court had done that in Loving v. Virginia, for example, it would have had to look at the state statutes (including Virginia's own) that denied marriage to "polygamous, incestuous, and adolescent" unions as evidence that the right at issue was the untraditional "right of interracial couples to marry"; or in Turner v. Safley, that the right at issue was the untraditional "right of prison inmates to marry."

I'm not arguing that the choice of a narrower characterization of the fundamental right at issue ("a right to same-sex marriage") is the wrong choice. I'm only noting that, after a handful of state supreme court and federal opinions, we still do not have a very defensible methodology for making this choice in the context of gay-marriage claims.

On the second claim -- equal protection -- the New Jersey courts have interpreted the state constitution in ways that are very different from the federal precedents and many other state courts. New Jersey does not follow what the court calls the "rigid" three-tiered scrutiny of the federal equal protection cases: "strict scrutiny" for race classifications, "intermediate" scrutiny for sex/gender classifications, and "rational basis" for almost every other kind of classification. (In fact, the New Jersey state constitution does not even contain an explicit equal protection guarantee.) Instead, the state courts have adopted a "flexible" test that calls for distinctions between "similarly situated people" to be justified by "a substantial relationship to a legitimate governmental purpose."

I won't go into the details of the holding on this point, but it's enough to say this: New Jersey ran into trouble because, having started down the path to full equality for gay individuals and couples through a variety of state statutes and judicial decisions, the state could not give any good reason why it should continue to differentiate. For example, the court noted, the state has adopted a domestic partnership system that gives gay couples a list of rights also given to married couples. But yet the domestic partnership system does not extend other rights of married couples to these same-sex couples. What's the basis for granting a select list of the rights but not the others?

This discussion of a gap served two equal-protection functions in the opinion: it established the importance of the issue of rights already given to gay couples and highlighted the importance of the remaining rights denied them. (Unlike other courts addressing the issue, the court also emphasized the hardships that denial of the remaining rights places on children being raised by gay couples. Hardly any court before this one has underscored that point.)

All of this put pressure on the state to come up with a reason for the remaining gap. Here, the case differs in an important respect from other state court cases:

The state does not argue that limiting marriage to the union of a man and a woman is needed to encourage procreation or to create the optimal living environment for children. Other than sustaining the traditional definition of marriage, which is not implicated in this discussion, the State has not articulated any legitimate public need for depriving same-sex couples of the host of benefits and privileges catalogued [earlier in the opinion].

The state thus surrendered the two rationales for denying equal rights to gay couples that have been successful in other state court decisions: procreation and child-rearing. But I doubt this surrender was the result of bad lawyering by the state. Instead, it was likely a consequence of the favorable public-policy environment already created legislatively and judicially for gay couples. Consider this passage from the opinion:

It is difficult to understand how withholding the remaining "rights and benefits" from committed same-sex couples is compatible with a "reasonable conception of basic human dignity and autonomy" [recognized in the state domestic partnership law]. There is no rational basis for, on the one hand, giving gays and lesbians full civil rights in their status as individuals, and, on the other, giving them an incomplete set of rights when they follow the inclination of their sexual orientation and enter into committed same-sex relationships.

It's significant that no other gay-marriage case (with the possible and instructive exception of Vermont, where the court adopted similar reasoning) has been brought to a state supreme court in a state with as favorable a public policy toward gays as this one was: a broad set of antidiscrimination laws, domestic partnerships, second-parent adoptions, a hate crimes law, and so on. In this environment -- where the state was committed to protecting gay people, sustaining gay couples, and facilitating gay parenting -- it was both logically and practically difficult to hold on to the procreation and child-rearing rationales. The state had nothing left in defense of the rights gap except an unadorned "tradition" that the state itself had steadily undermined in its public policy.

The whole case, then, shows how unstable a middle ground can become in the hands of an aggressive court. The slope on that middle ground seems much more slippery for courts, which demand what they regard as principled reasons for any distinction, than it is for legislatures, which may refuse to budge for no reason other than that the votes aren't there to do more or because of simple fiat. When legislatures act, they may grant 50 of the 1,000 rights of marriage now, another 25 rights next year, another 100 the year after that, and the rest whenever they get around to it, all without explaining why they've acted or failed to act. Courts have a harder time making these distinctions because judicial conventions mandate that they give reasons to support their opinions, and what principled reason could there be for giving 50 of the 1,000 rights of marriage but not another 25 or 100 or all of them? This is the slippery slope phenomenon Eugene points to. It's not so much a legislative slippery slope as it is a judicial one.

Seen in this light, the New Jersey court's quotation from Justice Brandeis' famous dissenting opinion praising the states as "laboratories" to "try novel social and economic experiments" is a bit ironic. The New Jersey court now holds that once the state substantially experiments with gay equality it must go all the way, ending the experiment.

While the result in this case is surely a good one for gay families, it may chill experiments in other states where legislators might fear that they cannot move incrementally toward equality for gay couples without surrendering the judicial basis for any remaining distinctions. I doubt that's really a great danger in most states, where courts tend to be less aggressive than New Jersey's and where the standard rational-basis test should allow legislatures to proceed incrementally, but this opinion will surely be cited as a reason not to grant any rights to gay couples.

The question then is, having closed the gap with respect to all rights in marriage, what basis could there possibly be not to close the remaining gap with respect to equal status in marriage?

court watcher:
Maybe courts should stop offering any reasoning for their decisions. Whenever they do try to reason, they end up looking silly. Just acknowledge that the decisions are based on gut instinct and leave it at that. Here, they thought same-sex couples should have all the benefits that opposite-sex couples do. End of story.
10.25.2006 10:44pm
FantasiaWHT:
Give them an inch...
10.25.2006 11:01pm
BobNSF (mail):

The court's answer to the fundamental right argument has been given by every state supreme court to look at the issue.


Is that true of the very old decisions in Alaska and Hawaii? Surely they didn't base their decisions on broad pro-gay legislation already enacted by their respective legislatures.
10.25.2006 11:05pm
Chumund:
"The state thus surrendered the two rationales for denying equal rights to gay couples that have been successful in other state court decisions: procreation and child-rearing. But I doubt this surrender was the result of bad lawyering by the state. Instead, it was likely a consequence of the favorable public-policy environment already created legislatively and judicially for gay couples."

Another possibility is that the state simply concluded those were nonmeritorious arguments. In other words, one is not compelled to make arguments that might succeed if one does not believe they are valid.
10.25.2006 11:09pm
Chumund:
Oh, and as we have been discussing elsewhere, I'm not sure if one can assume it is the legislation and judicial decisions which have created the favorable public-policy environment, rather than the other way around.
10.25.2006 11:13pm
Arvin (mail) (www):
The question then is, having closed the gap with respect to all rights in marriage, what basis could there possibly be not to close the remaining gap with respect to equal status in marriage?

I've often wondered about this one: my own tentative answer seems to be that status is a social thing, and can't be legislated. If the state has granted gay couples all the same rights as straight couples, in the eyes of the law, they HAVE granted the same status to gay couples. However, the ACCEPTANCE that gay couples want cannot be mandated by the courts or even the legislature -- that has to come from people themselves.

It's not much different than when I check the box for M, when I'm asked for my sex. Am I treated differently than the person who checks the box for F? For most things, I would imagine not. But forcing me to check M (or her to check F) is not depriving me (or her) of status in the eyes of the law -- any bias I feel towards me as a man is now societally generated. In the same way, if gays are forced to check the box for Civil Union but they get everything that straights get when they check the box for Marriage, then that's as far as the law can or needs to go.
10.25.2006 11:16pm
A.S.:
As to Dale's first point regarding whether this implicates a "fundamental right", Dale is most certainly right that there is no good reason to define the alleged right as the "right to same sex marriage" rather than the "right to marry".

What this really points out, though, is that the idea of a Constitutional "right to marry" is idiotic. Of course there's no right to marry stated anywhere in the US Constitution, nor in the NJ Constitution. But this court - like so many courts these days - doesn't care whether anything is actually stated in the Constitution. Instead, it eels itself free to simply import whatever ideas it wants into the generality of "liberty".

Query: The provision of the NJ Constitution that protects "liberty" also protects "pursuing and obtaining ... happiness." Why doesn't the Court just say gay marriage would make these plaintiffs happy, and therefore gay marriage is protected by the NJ Constituion. That's no more idioitic than importing a "right to marry" into the liberty clause.
10.25.2006 11:48pm
Mark Field (mail):

What this really points out, though, is that the idea of a Constitutional "right to marry" is idiotic. Of course there's no right to marry stated anywhere in the US Constitution, nor in the NJ Constitution. But this court - like so many courts these days - doesn't care whether anything is actually stated in the Constitution. Instead, it eels itself free to simply import whatever ideas it wants into the generality of "liberty".


I feel pretty confident that Justice McReynolds would be rather surprised to find himself labeled a "liberal".
10.25.2006 11:59pm
tsotha:
I think A.S. is correct. This is yet another instance of legislating from the bench. How long has the New Jersey Constitution been around, and does anybody really think it would have been ratified if it contained a clause specifically creating a right to gay marriage?

There's really no point in having a written constitution if judges are allowed prone to this kind of overreach. And while we're at it, there's no point in a legislature either.

Incidentally, I could be persuaded either way on gay marriage. But the decision belongs in the legislature.
10.26.2006 12:05am
Truth Seeker:
The provision of the NJ Constitution that protects "liberty" also protects "pursuing and obtaining ... happiness."

What about all the people who won't be happy unless they get to be a millionaire and marry a supermodel. The constitution says it's their right.
10.26.2006 12:09am
lucia (mail) (www):
However, the ACCEPTANCE that gay couples want cannot be mandated by the courts or even the legislature -- that has to come from people themselves.


By the same token, lack of acceptance can't be mandated by the courts or legislature. As far as I'm concerned, if a gay couple tells me and others they consider themselves married, I consider them married in a moral and social sense.
10.26.2006 12:13am
plunge (mail):
"I think A.S. is correct. This is yet another instance of legislating from the bench. How long has the New Jersey Constitution been around, and does anybody really think it would have been ratified if it contained a clause specifically creating a right to gay marriage?"

The problem is simply this: when you establish broad legal principles, you can't then magically ditch their implications when it turns out that logically applying them gets you somewhere you never expected. The argument that "well, the people who passed the law wouldn't have supported this" thus rings a little hollow. Sometimes, moral principles end up putting you in situations you didn't forsee.

We're supposed to take seriously the arguments that if we pass a law or develop a precedent in a locality that grandly declares equal rights for all, then we are supposed to take seriously the opinion of people who say "oh shit, wait, we meant, except for the Irish! We never expected any Irish to move into our town!"
10.26.2006 12:23am
Humble Law Student (mail):
The current NJ Constitution was enacted in 1947. The Equal Protection and Due Process debates have been around since the mid 1800s at least. Surely, the NJ framers could have used the same or at least more similar language, if they really meant how the court interprets it.
10.26.2006 12:32am
thedaddy (mail):
Dale,

Aside from the "legal" ramifications, all this proves is that the NJ court is made up with a group of justices that are as dimwitted and deluded as the court in Florida and the overturnees in the 9th Circuit.
The judges, you "law" professors and the so-called "Homo-asexual" community can't even win in court. The court couldn't even make a direct ruling. It had to "order" the legislature to "Make a Law" saying that the impossible is possible.

You people are just pathetic. You can't win at the ballot box, you can't win in court but you can get the boobs in the court to tell the legislature to do your bidding.

You people are playing with fire and you surely will get burnt (and I'm not talking about burning in hell).

thedaddy
10.26.2006 1:03am
Chumund:
By the way, I am always a little amused at how people take it upon themselves to decide exactly what sort of courts and constitutional law every state should have. Personally, I think that is one of the things people in different states can make different decisions about.
10.26.2006 1:17am
Tek Jansen:
Instead of responding to the bait, I'd suggest that people just ignore thedaddy.
10.26.2006 1:20am
Ramza:
The judges, you "law" professors and the so-called "Homo-asexual" community can't even win in court. The court couldn't even make a direct ruling. It had to "order" the legislature to "Make a Law" saying that the impossible is possible.


The Court telling the Legislature to do a certain thing line is getting kinda old. The court found the current laws pertaining to marriage to be unconsitutional. When a law is found to be unconsituional it becomes void. Would you prefer all the marriages that has been performed in the past to instantly become void? The Judges put a "wait on the effects of this ruling" and ordered the legislature to fix the situation so that all the marriages which have been performed over the years dont' becme void due to this court ruling.
10.26.2006 1:22am
Waldensian (mail):

Instead of responding to the bait, I'd suggest that people just ignore thedaddy.

That's a fairly easy assignment.
10.26.2006 1:24am
Kovarsky (mail):
AS,

What this really points out, though, is that the idea of a Constitutional "right to marry" is idiotic. Of course there's no right to marry stated anywhere in the US Constitution, nor in the NJ Constitution. But this court - like so many courts these days - doesn't care whether anything is actually stated in the Constitution. Instead, it eels itself free to simply import whatever ideas it wants into the generality of "liberty".

This is the same boorish argument you make on these threads, in every context, every day. The point that you're missing is that its possible to define every substantive right at a level of granularity such that it sounds silly to say that it is expressly provided for in the constitution. I'd also submit that even on the terms of your kindred ideological spirits on the court, the "right" to marry would qualify under the "fundamental/historically recognized" rubric used as their favored due process test.

The problem is always how to apply generalized guarantees to specific situations. Is the question whether there is a right to same sex marriage, a right to marriage, a right to romantic self-determination, a right to "liberty"? What is the appropriate level of generality at which to perform the inquiry? Please enlighten us? What's the way out? Does the court never decide anything? Every single constitutional decision requires an implicit decision about the generality at which to state a rule. Seriously, what is the decision rule? Is it the text? Is it original intent? Understanding?

After you decide on that, please tell me what ANY of the following phrases "mean" operationally, as quoted from a friend of mine (apologies to those who have seen me post this on another thread today):

How about the equal protection clause? Does that require equal income? How about equal education? Is progressive income taxation unconstitutional? Is a flat tax unconstitutional as inherently regressive? Are libel and slander laws unconstitutional? Does the right to counsel attach at arrest? Arraignment? Trial? Are jury trials required for all causes of action? Is torture cruel and unusual? What rights are reserved to the states? The people? What process is "due"? Does that vary under the circumstances? Where do I find the non-delegation doctrine? Does the 11th amendment bar suits by citizens against their OWN states? What count as "cases" or "controversies?" Does the full faith and credit clause require Iowa to honor the marrraiges being performed in Massachutts? What are the priviliges and immunities of a citizen of any given state? Can Congress constitutionally fund the Air Force? If the federal government has to gaurantee that each state provides a "republican form of government," are popular referenda acceptable? What things constitute a republican form of government? Can the President fire his cabinet without Senate approval? Where does the Constitution explain that? What about withdrawing from treaties? Are Congressional-executive agreements with foreign nations acceptable? What about sole executive agreements? I forget which Article talks about those.

Dale's entire point is that courts do a poor job of articulating the level of abstraction at which to confront the issue. But the court has to choose.
10.26.2006 1:27am
Greg D (mail):
I'm not arguing that the choice of a narrower characterization of the fundamental right at issue ("a right to same-sex marriage") is the wrong choice. I'm only noting that, after a handful of state supreme court and federal opinions, we still do not have a very defensible methodology for making this choice in the context of gay-marriage claims.

Dale, in years past there have been people getting married while in prison. There have been people getting married across skin color lines.

There have never been people of the same sex getting married only to each other.

Could that maybe be the reason why the Courts have treated those situations differently?
10.26.2006 1:27am
Greg D (mail):
the State has not articulated any legitimate public need for depriving same-sex couples of the host of benefits and privileges catalogued [earlier in the opinion].

Gosh, that's easy. Heterosexuals have earned them, homosexuals have not. It's that whole "society has survived because of heterosexual families" thing.
10.26.2006 1:30am
Greg D (mail):
<i>The question then is, having closed the gap with respect to all rights in marriage, what basis could there possibly be not to close the remaining gap with respect to equal status in marriage?</i>

That's easy, they wanted to pretend that they weren't actually forcing the State to create homosexual marriages, even though that's what they're doing.

Since the rest of the decision was dishonest, they saw no reason not to make a clean sweap.
10.26.2006 1:35am
Kovarsky (mail):
Greg D,

Are you seriously making the argument that the basis for the distinction is that heterosexual couples can procreate? Let me assure you, there are more than enough orphaned children on the earth to go around. See, e.g. Africa.

If your argument is not about procreation, but about "proof," I hope you can see the circularity in your logic.
10.26.2006 1:37am
Kovarsky (mail):
Dale, in years past there have been people getting married while in prison. There have been people getting married across skin color lines.

Greg, while we're on the subject of circular logic, you do also realize that some of these conditions were enabled by supreme court decisions, right?
10.26.2006 1:44am
logicnazi (mail) (www):
As to characterizing the right as the right of gay people to marry if this argument went through then why wasn't Turner v. Safley about the right of criminals to marry or Zablocki v. Redhail about the right of deadbeat dads to marry. This view that we should look at the narrow context for the right to marry just isn't consistent with precedent regardless of any a priori argument for it.

--

As far as a rational basis for denying gay couples the benefits of marriage I think there was still a case NJ could have made.

Hetero couples, unlike homosexual couples can (and often do) produce children by accident or without sufficient planning. Now supposing (reasonably) that couples who plan to have a child provide a better environment than those who don't and that an unplanned child is better off with two committed parents than two separated parents it follows that the state has a greater interest in convincing hetero parents to get hitched.

While theoretically appealing the 'accident' justification for incentivizing hetero marriage would probably be politically unpopular. It basically says that homosexual parents are on average better than hetero parents because they have to plan more to have kids. Not to mention that it might offend religious groups who don't believe in birth control.
10.26.2006 1:47am
Kovarsky (mail):
There's zero empirical evidence that gay couples are less fit for parenthood than straight couples.
10.26.2006 1:52am
godfodder (mail):
Plunge:
The problem is simply this: when you establish broad legal principles, you can't then magically ditch their implications when it turns out that logically applying them gets you somewhere you never expected. The argument that "well, the people who passed the law wouldn't have supported this" thus rings a little hollow. Sometimes, moral principles end up putting you in situations you didn't forsee.


No. The problem is that a small group of people have been empowered to decide the specific meaning and application of all our "broad legal principles." The rest of us so-called adults are excluded from participation in that process, and thereby excluded from any say in what our society looks like. Perhaps you are happy with that process in this particular case, but what are you going to do tomorrow when you are not so happy? (I'll spare you the consternation-- you'll shut up and take it, like the rest of us. )

Why would any adult with a sound mind, and a sense that their opinions should matter, be pleased with the progressive (both senses) usurpation of legislative authority by the judiciary? Because we really shouldn't be trusted with that authority? Because we should be thankful that that super smart judges are relieving us of the burden of decision making? Because legislators are too beholden to "special interests," like, I dunno... voters?
10.26.2006 2:00am
godfodder (mail):
The benefits that have accrued to married couples are a "thank you" from society to the individuals that have taken time out of their busy lives to have children, raise them, civilize them and make them the next generation of good citizens who keep this whole charade going. (You know, the people who are going to buy your house in 25 years, and let you retire.)

A small point, but it ticks me off to see it so grievously misunderstood.
10.26.2006 2:08am
Omar Bradley (mail):
I note that not one gay marriage supporter has adressed the "right to happiness" argument put forth above. If Art 1 constitutionalizes a right to obtain and pursue happiness, then gay marriage should fall under that. Gays have a right to be happy, marriage makes them happy, ergo they have a right to marriage.

Of course, I think everyone here realizes how absurd that is so they just ignore it and move on. It's no more absurd than saying that a right to liberty is a right to gay marriage.

It's pretty clear that Art 1 Graph 1 is more of a preamble provision as the decision in the NJ 1847 case of State v Post so elegantly and persuasively proved.

Further, as to the gay parents are equal to straight parents-no, they're not. If you have two guys, there's no mother. Two women, there's no father. Given the abundant evidence on how the lack of fathers in the home has absolutely devestated the black community, a state certainly has a rational basis for not wanting to constitutionalize or support situations without fathers. The same goes for mothers. A state can certainly determine that the lack of a mother, particularly for a daughter, but also for a son is not something that they prefer. At the very least, it is absurd for a court to say there is no reason for a state to so decide.
10.26.2006 2:14am
On Lawn (mail) (www):
Kovarsky,

There's zero empirical evidence that gay couples are less fit for parenthood than straight couples.

Raising children is left to parents, homosexual couples, foster-parents, grand-parents, run-away shelters, and orphanages. In the group only one arrangement has access to marriage. And only one group actually parents (as in procreates) children.

This is not a coincedence, and it is not because historically societies decided homosexuality is something to oppress. There is a link that is being down-trodden and devalued in your comments as well as others, and that is the link parents have to their own children.

Wherever children are abandoned or without their parents it is a tragedy. Current trends wish to turn that from tragedy into profit as people are paid to leave their children as much as have them. This trend is strongest, again not coincidentally, in areas where marriage has been neutered in its definition.

So while you mean parenting as simply raising children, that is a matter for more study. The wealth of evidence in the area shows that children do best when raised by their parents in an in-tact home. That is where the focus lies in marriage.

In short, This isn't about Gays. It's about Marriage, Sex, and Responsible Fatherhood.
10.26.2006 2:14am
Tek Jansen:
godfodder:
The benefits that have accrued to married couples are a "thank you" from society to the individuals that have taken time out of their busy lives to have children, raise them, civilize them and make them the next generation of good citizens who keep this whole charade going. (You know, the people who are going to buy your house in 25 years, and let you retire.)


We aren't talking about a benefit bestowed upon those who raise children. The state is entitled to grant such benefits, and does so (tax breaks for those with dependents). Many marriages are childless, and many homosexual couples have children. If you want to promote greater benefits for child-rearing couples, do so, but realize that it's a different subject.
10.26.2006 2:15am
Kovarsky (mail):
godfodder, why shouldn't those benefits accrue to dutiful gay parents?
10.26.2006 2:15am
Q:
The real question is why do we even have "marriage licenses" ? There's no practical reason for the government to treat a single person different from a married person.
10.26.2006 2:15am
Omar Bradley (mail):
Furthermore, Art 1 Graph 1 states that "all persons" have this right. Not gays, not straight, "persons". If that is true, and based on the court's ruling, NJ's age of consent laws are unconstitutional. A 12 year old boy is a person, as is a 9 year old girl. If they decide to get married, the NJ constitution, according to the Court guarantees them that right. If a 40 yr old man wants to marry a 12 year old boy, and they both agree, the court guarantees them that right.

In fatc, just a bout any law that makes age discrimination(Driver's License, voting, work laws, etc...) are all unconstitutional as all persons, regardless of age have the irght to liberty and happiness.

I suggest you all read the 1847 NJ State v Post opinion to see what the provision really means, written by NJ Judges who were active when it was drafted and ratified and knew precisely what it meant, much more so than any of us 160 years on.
10.26.2006 2:19am
Omar Bradley (mail):
And for all you gays or gay advocates who think I'm biased, I don't think the NJ constitution guarantees a right to straight marriage, either. If the legislature passed a law banning straight marriage, it would be perfectly legal, at least in my view. I don't think the US constitution guarantees straight marriage, either. Although, stare decisis concerns and decades worth of unquestioned acceptance would lead me to treat any case as de minimis non curat lex on that issue.
10.26.2006 2:22am
Kovarsky (mail):
Omar,

The U.S. constitution uses only the masculine third person singular. You don't see courts invoking those provisions cowering in fear that they'll only apply to men.
10.26.2006 2:28am
Kovarsky (mail):
Omar,

There is no 1847 case by that name. There's an 1848 one pager and an 1845 opinion that says the constitution allows slavery.
10.26.2006 2:37am
Randy R. (mail):
""What about all the people who won't be happy unless they get to be a millionaire and marry a supermodel. The constitution says it's their right."

You are correct. If a male millionaire can find a female supermodel who wants to marry him, they have a right to get married, end of discussion. But if the male millionaire can't find a female supermodel who wants to marry him, there is on law that permits him to force marriage upon an unwilling female.

But if a male millionaire can find a male supermodel who wants to marry him, the law forbids it.

So what's your point?
10.26.2006 2:49am
Omar Bradley (mail):
My apologies, it was 1845, not 1847, a typo on my part.

And yes, Kovarsky, the NJ Consitution DID allow slavery in 1844, as did the US Constitution and the Constritutions of many states.

What's your point?

I've yet to see someone give me a logical link between the provision at issue and REQUIRING(not merely allowing but mandating, mind you)gay marriage. And don't give me this they can choose the name thing. That's pure semantics and everyone knews it, it was an act of cowardice by the Court. I actually have more respect for the dissent because they at least had the cuorage of their convictions, more than you can say for the majority.
10.26.2006 2:56am
Randy R. (mail):
"The rest of us so-called adults are excluded from participation in that process, and thereby excluded from any say in what our society looks like"

This is probably the most idiotic sentence I've come across in a long time. Where do I begin? There is so much wrong with it, I can hardly know where to start, but I'll take a stab.

First, who are you to say that what society should 'look like.' I don't even know what that means. Should society, however you define it, mean that everyone must conform to your notions of propriety? What about the rest of society that might disagree with you?

You do have a say in how 'society looks.' If you don't like gay people, you can refuse to socialize with them. You dont' have to invite any to your house, and if you have a gay couple as a neighbor, you can refer to them as partners, not spouses, if it really means that much to you.

But perhaps you just don't like the fact that gay people couple up into partnerships. Well, on that matter, you DON"T have anything to say because it's simply none of your business. It's none of my business if you are single or striaght, or date ugly people -- so it's none of your business how I conduct my life.

This same argument was made by people in Vermont and Massachusetts when they were forced to recognize gay civil unions or marriage. And guess what? People somehow got on with their lives.

Frankly, if it upsets you that much that gay people are getting married, you have a little much time on your hands. Try worrying about something that IS a concern, like climate change or the poverty that no doubt is close to home.
10.26.2006 2:57am
Omar Bradley (mail):
sorry, it was 1845, not 1847. regardless, the case was correctly decided. what's your point?
10.26.2006 2:57am
Randy R. (mail):
Omar: Further, as to the gay parents are equal to straight parents-no, they're not. If you have two guys, there's no mother. Two women, there's no father. Given the abundant evidence on how the lack of fathers in the home has absolutely devestated the black community, a state certainly has a rational basis for not wanting to constitutionalize or support situations without fathers. The same goes for mothers. "

Wrongo. Every study that had been made in both the US and Britain has concluded that children of gay parents turn out pretty much as well as children of straight parents. The difference between good parenting and bad parenting isn't the sex of the parent, but the degree of involvement in the child's life.

And furthermore, if what you say is true, then the state should prohibit single parenthood across the board. So if a father dies, the child should be taken from the mother and placed in a home that has both a mother and father.
10.26.2006 3:00am
Randy R. (mail):
On Lawn: Wherever children are abandoned or without their parents it is a tragedy. Current trends wish to turn that from tragedy into profit as people are paid to leave their children as much as have them. This trend is strongest, again not coincidentally, in areas where marriage has been neutered in its definition.


This is simply an astounding assertion. Please provide any evidence at all that when a parent dies, the surviving parent is encouraged in any way, much less financially, to abandon their children. Is there a government program that pays parents this? No? Then where do you get this?

Please tell me that areas where marriage has been 'neutered' in it's definition. How has it been neutered? By whom? What do you mean by that? And then provide the causal link between this neutering and the profit of abandoning children.
10.26.2006 3:06am
Bob Van Burkleo (mail):
The right to marry comes from our biology, just like our right to breath, our right to eat, our right to sleep, etc. The mammalian pair-bonding response is well documented and is the basis of each individual's right to marry (and yes it can occur between same or opposite gendered couples).

Of course a government can try to say that people don't have these rights but then its just identifying itself as an a system that doesn't reflect humanity the way it is. A government that doesn't recognize that it's citizens do marry is just a government that doesn't deserve any respect at all.
10.26.2006 3:11am
godfodder (mail):
Tek:
I believe that the "equal protection" element of this argument references the fact that gay couples, by being forbidden to marry, are being unfairly denied the "benefits" of marriage. The NJ Supreme Court cited the 2004 Domestic Partnership Act and stated:

In passing the Act, the Legislature expressed its clear understanding of the human dimension that propelled it to provide relief to same-sex couples. It emphasized that the need for committed same-sex partners "to have access to these rights and benefits is paramount in view of their essential relationship to any reasonable conception of basic human dignity and autonomy, and the extent to which they will play an integral role in enabling these persons to enjoy their familial relationships as domestic partners."

Seems to me that they are saying that the benefits of marriage derive from marriage, not from parenthood. Actually... they went beyond this and seem to be saying that the benefits of marriage spring from having a committed relationship. Thus, I can only assume that high school sweethearts are next in line for benefits. They're committed too, and they deserve "basic human dignity" don't they?

Yes, gay couples may have children, but I don't think most, or even many, of them are going have children. I know plenty of gay men, and I don't believe that I have ever heard any of them ever mention wanting to adopt children. Not impossible, just not terribly popular.
10.26.2006 3:13am
Randy R. (mail):
On lawn: There is a link that is being down-trodden and devalued in your comments as well as others, and that is the link parents have to their own children."

Nope. No one has devalued this link. In fact, we gays SUPPORT the link. Many gay people have children. Argue all you want about whether children need a father and mother: the point is that there are many many gay people raising children. These children are either their own (yes, a gay man or a lesbian woman can still produce children!) or their adopted children.

Your argument seems to be that we must deny marriage to gay people to protect the children of their natural mother and father. Even IF this were a good argument, how on earth do you protect those children by denying the very same protection to the children of gay parents?

So fine. Deny gays the right to marry. Then what do you do with the thousands and thousands of children currently being raised by gay parents? If having married parents is so important to the children, isn't it just as important to the children of gay parents?

And every single report or testimony by a social services worker or agency has concluded that children in a gay household are much much better off than in foster care or left in 'the system.' If your concern is truly about the children (and I really doubt that), then you would support getting these kids out of foster care and into a loving home as fast as possible, whether it be a straight home, a gay home or Madonna and Guy Ritchie.
10.26.2006 3:14am
Ramza:
Yes, gay couples may have children, but I don't think most, or even many, of them are going have children. I know plenty of gay men, and I don't believe that I have ever heard any of them ever mention wanting to adopt children. Not impossible, just not terribly popular.

According to the US census there are over 400,000 children being raised by gay parents.
http://www.gaydemographics.org/USA/USA.htm
http://www.gaydemographics.org/USA/PUMS/nationalintro.htm
10.26.2006 3:19am
Kovarsky (mail):
Omar,

I agree that the case was properly decided. the post-civil war amendments abolished slavery. what's your point? that an interpretation of the new jersey constitution that allowed slavery should be exactly the same in all respects except insofar as slavery was barred by federal amendment?
10.26.2006 3:21am
godfodder (mail):
Randy R.
Wow, buddy. Are you off your medication? Why don't you read what I wrote, rather than what you imagined I wrote.

Once more, then I give up... When judges make decisions that could (and should) be made by the legislature, then adults (like me, and presumably you) are deprived of a voice in that decision process. Because judges, like the Supreme Court of NJ, aren't elected. It's about living in a representative democracy, not an oligarchy.
10.26.2006 3:21am
Randy R. (mail):
Omar: In fatc, just a bout any law that makes age discrimination(Driver's License, voting, work laws, etc...) are all unconstitutional as all persons, regardless of age have the irght to liberty and happiness.

Nope. if you are too young, your feet won't reach the pedals on a car. If too old, you might not have the physical awareness necessary to navigate a two tons of steel on a highway, and that endangers us all. If you are too young, you don't understand the voting process, or the issues. Although I think children would actually vote better than most adults, I would agree. Work laws were implemented as a result of the exploitation of youth, not because young'uns were happy to work in coal mines or dangerous factories.

In other words, we all have limitations on our liberties -- I cant' yell fire in a crowded theater, no matter how much it gives me the jollies -- because sometimes my liberty might infringe upon yours, or I am too young to use my liberty responsibly.

On the other hand, if the law probited gay workers under the age of 14 from working in coal mines, but allowed straight workers, this law would be unconstitutional, since it is treating two people unequally for no reason at all.

So-- Two adults who happen to be of the same sex should have the same right to get married as two adults of the opposite sex. Whether it is wise or good isn't the issue in either of those two cases. The issue is only that they should be treated the same.
10.26.2006 3:24am
Randy R. (mail):
Godfodder: When judges make decisions that could (and should) be made by the legislature, then adults (like me, and presumably you) are deprived of a voice in that decision process. "

That's a valid point. But it isn't the point you made earlier. I quoted you correctly when you talked about having a right as what society looks like. Perhaps I misread your intentions.
10.26.2006 3:27am
Omar Bradley (mail):
Randy R, Please cite these "studies" you claim exist.

And in any event, the state certainly has a reasonable basis to prefer that a child have both a father and a mother, whether or not you or I agree with them. Read Holmes, Brandeis, Roberts, Stone, Hughes etc... on the rational basis test. It clearly applies here.

The main problem here is that gays want the Courts to mandate acceptance when they know the public won't.

I have no problem if NJ enacted gay marriage or any other state for that matter. As Brandeis said in the Ice case, federalism allows for states to do their own thing to some extent.

However, for a court to mandate that a state do so when the polity has shown no inclination is pure imposition.

Imagine if some more conservative Court, using similar activism, ordered that the right to life and defend life that is mentioned in the same provision requires the state to ban all abortions, I don't think liberals would like that. It'd be just as activist as this case, although it would have more textual grounding.

The whole issue is that the Courts are once more imposing values and social policy on a polity.

Let me ask you a hypothetical question. Let's say we could bring back the ratifiers of the NJ Constitution and ask them to decide this question. If they all said "no, this has nothing to do with gay marriage", would you accept that? I would accept the reverse.

As an aside, can you name 3 SC decisions whose results you disagree with but whose holdings you nonetheless do agree with. I've yet to find too many gay marriage supporters or liberals who can meet that test.
10.26.2006 3:30am
godfodder (mail):
Ramsa:
I'm not too sure that "having a gay parent" is really all that relevant to the topic of gay marriage. For instance, it is conceivable that the number of children with a gay parent would actually drop with widespread gay marriage.

Nevertheless, thank you for the info.
10.26.2006 3:32am
Omar Bradley (mail):
Kovarsky, my point was reagrding the Court's interpretation of Art 1 Paragraph 1, the provision used today to mandate gay marriage(or whatever it ends up being called, a rose by any other name you know)in NJ.

It has nothing to do with gay marriage and to stretch it to say it does would be to give it a construction far beyond any reasonable latitude.

Please explain how Art 1 Paragraph 1 mandates gay narriage when the best qualified court to rule on the subject determined it to be pretty much nonjusticiable and merely advisory rather than declaratory, much like the Preamble to the US Constitution.

I will say that in the final analysis, this doesn't really matter to me that much. I don't live in NJ and I won't be any time soon. If they're that upset about this, I suspect that they will pass an amendment much like the 25 or so o ther states have and that will settle the issue once and for all. If not and they're ok with this, God bless em.
10.26.2006 3:37am
Kovarsky (mail):
Omar, we clearly have different ideas of how these decisions are made.

Under your method, you say "where is it, show me."

Under my method, I say the question is hopelessly ambiguous, and what is the optimal institutional arrangement we should use to adjudicate. While I trust legislatures to deal with a great variety of issues, I (as did the framers) do not trust them to fairly protect consittutional rights.

I realize that the question is complicated becaues the very concept of "defending" a constitutional right involves who gets to say what that right is? Well, my answer to that, is what institution do we trust most to assert "rights," which by their very nature, are often countermajoritarian. so if i have to have one institution that defines them pursuant to objective indicia of meaning, that would be the Court. It would not be Don Rumsfeld or Tom Delay.
10.26.2006 3:44am
Kevin Murphy:

The question then is, having closed the gap with respect to all rights in marriage, what basis could there possibly be not to close the remaining gap with respect to equal status in marriage?
You answer that yourself, actually, with the Brandeis quote. The state should argue: "We went this far for now as an experiment, and the results are unclear. Part of the experiment is how it would be accepted by the people, in keeping with our duty to legislate in their name. This "gap" is therefore a political question and the court is not competent to judge."

In short, the existence of a judicial slippery slope should be an indication of a nonjusticiable case.
10.26.2006 3:56am
Omar Bradley (mail):
kovarsky,

thank you for your candid answer. you at least admit that we have different methods of interpretation and i can at least respect that. you don't claim that the text contains the right, you claim that it's ambiguous and therefore you want the court to say what our rights our and proclaim new ones from time to time.

that's fine, if i accepted your approach I could agree with the decision.

For your sake, though, I hope that the Courts are always made up of judges who agree with you politically, because if they aren't, you could be in trouble. Whereas if you were able to persuade NJ citizens to amend the constitution to include gay marriage or to pass a law regarding it, it wouldn't matter what the judges thought politically. it's just a different mindset that we have. no big deal.
10.26.2006 4:07am
KMAJ (mail):
I wrestle with the argument, but can find no sound basis for the pro-gay marriage argument UNLESS law is viewed through a cultural vacuum. Society / culture sets the norms for which the law applies. Thus when the Constitution infers a right to 'the pursuit of happiness', it referred to a pursuit within the constructs of the society. It did not confer a Constitutional power to be used to lord over and shape society, the Constitution confers the ultimate power with the people, not the judges.

When we distort the Constitution by using the law in such a 'vacuum' fashion, we engage in social engineering. Is that really the role the Founding Fathers envisioned for the courts ? I think not. Such a judicial system can only be defended in a atheistic or secualrist authoritarian system of government that ignores the will of the people. The only true constitutional road for such laws is through legislation enacted through referendums or the state houses. I find trying to use the judicial system to create laws that cannot be passed by legislatures or electoral majorities to be a slippery slope to judicial tyranny.
10.26.2006 4:11am
On Lawn (mail) (www):
>> me Wherever children are abandoned or without their parents it is a tragedy. Current trends wish to turn that from tragedy into profit as people are paid to leave their children as much as have them. This trend is strongest, again not coincidentally, in areas where marriage has been neutered in its definition.

> Randy R: This is simply an astounding assertion.

This should be interesting.

> Randy R: Please provide any evidence at all that when a parent dies, the surviving parent is encouraged in any way, much less financially, to abandon their children.

I'm not sure that death is required in this scenario. Could you explain where you got that notion?

Children are seperated from their parents for a variety of reasons. Parents can't support the child, parents die, or parents divorce and fight over primary custody. It is pretty safe to say that inspite of circumstances a child might wind up, many are trying to making the best of a bad situation. But there is a fine line between trying save someone from the bears, and feeding the bears.

> Randy R: Is there a government program that pays parents this? No? Then where do you get this?

A government program to pay parents to have children and abandon them? As with most of my arguments this is much more homosexual-agnostic than I think many are ready to deal with. But to gain a better feel for this one, I will point you to a comment in the previous post.

> Randy R: Please tell me that areas where marriage has been 'neutered' in it's definition.

Everywhere the definition has the reference to gender removed from it, and becomes instead just a union of two people. To me marriage is androgynous, it is equal gender representation. To remove gender reference is a direct affront to humanity, diversity, and childrens rights to their heritage. It is akin to allowing segregated schools for a select few who they feel are unable to have a constructive relationship with people of diversity in a integrated school. Only it is worse in that now, as the NJ state argues, that segregation must be equally funded and held less accountable than the institutions that are integrated.

> Randy R: How has it been neutered? By whom? What do you mean by that?

Answered in my previous paragraph.

> Randy R: And then provide the causal link between this neutering and the profit of abandoning children.

And that was provided in the link to the previous post.

Enjoy your reading.
10.26.2006 4:15am
Kovarsky (mail):
Omar,

I feel like you're missing my point. I don't give a shit about whether the judges agree with me politically or not. I think the other branches of government are subject to certain structural pressures (elections) that distort their objectivity. Not only do I think as a matter of structure that other branches are ill suited to adjudicate the meaning of ambiguous terms like "equal protection" and "due process" (could you imagine tom delay invoking a "reliance interest"), but I also think that judges are not just voters, but practitioners. Many judges are lawyers and the most powerful judges are generally renown legal scholars. IF you believe adjudication of rights and allocation of government responsibility pursuant to constitutional requirements are more than a straw poll, and involve highly complex exercises in history, interpretive method, and procedure, it stands to reason that judges would generally be the favored institutional actor to decide such issues. I do not care how they vote. For instance, I hold Justice Thomas in the highest esteem, althogh I couldnt imagine a judge producing a set of results I disagree with more.
10.26.2006 4:21am
Kovarsky (mail):
On Lawn,

If I may so humbly be the mouthpiece for a number of people on this post, what the hell are you talking about?
10.26.2006 4:23am
On Lawn (mail) (www):
> Randy R: No one has devalued this link. In fact, we gays SUPPORT the link. Many gay people have children. Argue all you want about whether children need a father and mother: the point is that there are many many gay people raising children.

Well, there you did it again. You pushed the link to the margins of the debate. If you wish to show value in the link, might I suggest a less conflicting course.

> Randy R: So fine. Deny gays the right to marry.

Not to be too homosexualy-agnostic again, but consider this. Is it their homosexuality or the law that is preventing a gay from getting married? I don't want to drop this point in too cavalier a manner. But consider Loving v Virginia. There the identity of a person was not considered an obstruction to a marriage, but their heritage manifested in genetic charectaristics. And it was the heritage that produced a cast society that the Court, in Loving, denounced.

In this case, the judges expressly dodged the question of whether or not there was a right to same-sex marriage. Is homosexuality a bar to marriage's expectation of a formation of equal gender representation?

> Randy R: Then what do you do with the thousands and thousands of children currently being raised by gay parents?

Actually, I wonder where you justify such a narrow-minded and myopic view of the problem. Such bias is on display in that you seem to only care about homosexual's households.

For each child in a homosexually headed household, there are probably hundreds of other children who's households could use support. They might even be same-sex households of a mother and daughter raising the daughters children. Maybe two aunts. They may not even be situations of two people, like my case of a father and his parents. They might not even be related, such as a case of one of my friends (who is getting married soon) living with a family who are playing beneficiaries for her.

No, all you are conserned with is gay-marriage. I tell you that I think if you really wanted to help the kids you'd be going for something much more encompassing.

> Randy R: If having married parents is so important to the children, isn't it just as important to the children of gay parents?

Study after study shows that the benefits of marriage extend most directly in keeping families intact. Intact families do better at raising children. Even second-marriages statistically look like single-parents when it comes to evaluating a child's struggle to become well balanced members of society.

Marriage is a foundation. But you are painting it like some bandage. In fact, I think that is what you should call your progran "Bandage". A homosexual household comes from broken in-tact households. They are then "bandaged" with benefits and programs to help them out however possible.

Well, just in case you were ready to huff and puff onto the key-board, know that I am only partly tongue-in-cheek here. Really Reciprical Beneficiaries is a program that would extend benefits to people raising children. But to conflate that with marriage which endeavors to keep families intact, where the most good happens for the child, would only be to devalue that link. The link you claim to not be devaluing at all, in the beginning of your post.
10.26.2006 4:34am
On Lawn (mail) (www):
Kovarsky,

I'm happy to clear up your confusion, as I've done in the previous article.

But I need your help to help you out. It is easy for two people to talk at right angles, not really grasping what the other is saying. I can grant that. But I need for you to be more specific about where you are confused this time. And if you feel overwhelmed with confusion, just take one thing at a time. Just one sentance or paragraph and I'll see what I can do to clear it up for you.
10.26.2006 4:39am
Kovarsky (mail):
On Lawn,

I'm deeply sorry that I didn't deduce that you had responded to another comment I made on another thread. I should be careful to check all threads on which I've ever posted, look for your responses, and cross reference those to the existing thread before I convey confusion.

You've selectively ignored my request, both in this post and the other, to move beyond a fairly primitive view of constitutional interpretation. You can't say that you have problems involving a violation of appropriate allocations of institutional authority unless you have some theory about what that authority is. Your theory seems to be that legislatures should decide every constroversial issue. That is a nice theory, but is rejected by many, including the framers of the constitution. If you would care to refine your theory, by all means do so.

Back to the original topic, your paralyzing lack of clarity, take this:

Not to be too homosexualy-agnostic again, but consider this. Is it their homosexuality or the law that is preventing a gay from getting married? I don't want to drop this point in too cavalier a manner. But consider Loving v Virginia. There the identity of a person was not considered an obstruction to a marriage, but their heritage manifested in genetic charectaristics. And it was the heritage that produced a cast society that the Court, in Loving, denounced.

what does homosexually agnostic mean? why does this passage read as though it is the fault of gays that they have not conformed their behavior to the law that is accountable for their failure eto marry? that can't be what you mean, because I give you more credit than that. and what does your remark about thet heritage-producing cast society mean? what are you talking about? i am a little overwhelmed with confusion, but not in the sense that i'm overwhelmed by relativity. more in the sense that i'm overwhelmed by terrel owens.
10.26.2006 5:10am
Sk (mail):
"The question then is, having closed the gap with respect to all rights in marriage, what basis could there possibly be not to close the remaining gap with respect to equal status in marriage?"

How about because they want to?

The slippery slope argument is, on its face, absurd.

the argument is that by allowing gays to adopt, and allowing gays to cohabitate (and other legal recognitions) the state is therefore legally obligated to allow them to marry.

Why make it that hard? Why not simply say that by allowing gays to exist, or stay out of prison, the state is therefore legally obligated to allow them to marry? In other words, in your example of 25 of potential 1000 rights that married couples exist, why say 25 (that include hard ones to agree to, like adoption)? Why not more basic rights (the right to not be killed, which may be number 1, or not be beaten, which may be number 2, etc)?

If the argument that 'states allow gay couples not to be killed by mobs, therefore the state is obligated to allow them to marry' doesn't make sense (and it clearly doesn't), how does the argument 'states allow gay couples to adopt, therefore the state is obligated to allow them to marry,' or 'the state allows gay couples to cohabitate, therefore the state must allow them to marry' etc etc make sense?

The answer is, they don't.

(and from another direction: 'the state allows three people to live together, therefore it must allow them to marry.' 'the state allows felons to work, to pay taxes, to marry, to xxx, therefore, it must allow them to vote' 'the state allows 16 year olds to drive, to work, and to pay taxes, therefore it must allow them to drink beer'. One could play this game forever. It is still absurd).

Everybody knows this. Arguments for or against are just white noise.

Steve
10.26.2006 8:26am
raomas (mail) (www):
like
raomas
10.26.2006 8:43am
jrose:
A.S.: Of course there's no right to marry stated anywhere in the US Constitution, nor in the NJ Constitution

From an Equal Protection standpoint, there is binding precedent to the contrary (Zablocki).

Omar: I don't think the US constitution guarantees straight marriage, either. Although, stare decisis concerns and decades worth of unquestioned acceptance would lead me to treat any case as de minimis non curat lex on that issue.

Since the precedent exists, what is the significance of de minimis non curat lex in this case?

logicnazi: As far as a rational basis for denying gay couples the benefits of marriage I think there was still a case NJ could have made.

Rational basis doesn't apply in NJ.
10.26.2006 9:35am
thedaddy (mail):
Instead of responding to the bait, I'd suggest that people just ignore thedaddy.

Well I am happy to note that you and most everyone ignored my"bait". Of course it wasn't "bait" it was just a statement of the facts.

The problem with you folks who believe that you are "homo-asexuals*" is that you are so wrapped up in proving that what you believe is real that you can't bear to hear the truth about yourselves.

The truth often hurts and folks with your self imposed differences always shout foul and insensitivity when your closely held "beliefs" are challanged.
The reactions of the pro "gay marriage" devotees to ideas that expose the vacuity of their beliefs are quite simular to the reactions of the mulims to the statement of the Pope a few weeks ago.

thedaddy

*Bill Clinton said that one of the things you guys and gals do to each other wasn't sex and the other thing you guys do to each other isn't sex either. I can only conclude that you are homo-asexuals. A new way, I believe, to think about you folks. I will be using this term from now on in discussions such as this one.
10.26.2006 10:24am
Greg D (mail):
Randy writes:

First, who are you to say that what society should 'look like.'

Gee, I don't know. How about: "a member of that society"? And, since it's a society that claims to believe that "all men are created equal", therefore someone who has just as much right to "decide" how society should look as anyone else has? Furthermore, in this case he appears to be in the majority.

How are you, and who are those "judges", to claim that your vision of society should trump the majority's vision?
10.26.2006 11:01am
A.S.:
Kovarsky writes:

This is the same boorish argument you make on these threads, in every context, every day.

What??? Can you point me to another thread where I made a similar argument... anywhere??? (If I make that argument "every day", the request shouldn't be too hard.) I certainly can't remember making a similar argument on one of these threads. Perhaps you have me confused with someone else?

The point that you're missing is that its possible to define every substantive right at a level of granularity such that it sounds silly to say that it is expressly provided for in the constitution.

I'm not missing it. But the fact that it is impossible to "define every substantive right" at a sufficient "level of granularity" is not a persuasive argument that the completely amorphous concept of "liberty" should make family law a Constitutional issue. My point is that there is no reason that the idea of "liberty" should give us any more rights that the similarly amorphous idea of "happiness" that is contained in the same clause of the NJ Constitution.

I have no problem with the Constitution (both the US and state) changing with the times. One need not require that the framers thought about heat-detection devices to find that the search and seizure clause implicates such devices. But at least in that case, the "level of granularity" is a bit more fine - you can at least point to the word "search". The idea that we use the word "liberty" to make family law a Constitutional issue appalls me. (I now expect Randy Barnett to reach through my computer and smack me with his book.)

(BTW - to be clear, I *support* gay marriage. There is simply no rational basis on which to distinguish between a marriage between a man and a woman and a marriage between a man and another man. In fact, I'm so far to the left on family law issues that I support *polygamous* marriage too - I don't find any rational basis to distinguish between a marriage between two people and a marriage among three people. But in both cases it should be passed by the legislature and signed by the executive.)
10.26.2006 11:06am
A.S.:
From an Equal Protection standpoint, there is binding precedent to the contrary (Zablocki).


Yes, I realize that. I think Zablocki was wrongly decided, as was the part of Loving that discussed the right to marry.
10.26.2006 11:09am
Greg D (mail):
A question for the assembled legal minds:

Let's assume the NJ Legislature takes up the NJ SC's challenge, and decides to use their democratically legitimized power to create something such that "committed same-sex couples [are] afforded on equal terms the same rights and benefits enjoyed by opposite-sex couples under the civil marriage statutes."

Let's say they decide to exercise the one prerogative their masters on the Supreme Court (by a 4 - 3 vote) still allowed them, and they give it the name "mantrimony", instead of calling it marriage.

Will mantrimony be valid in another State the way marriage is? If a mantrimonial couple goes to Colorado for a ski trip, and one of them gets injured, will the Colorado hospital treat the mantrimonial partner as if he / she is a "spouse"?

If not, does that not mean that mantrimony does not "afforded on equal terms the same rights and benefits" as marriage?

In short, while the judges are pretending here that they've given the Legislature a choice, that they haven't mandated homosexual marriage, is that not a complete and utter lie?
10.26.2006 11:14am
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 appeal 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 11:18am
chris s (mail):
someone stated above - "There's zero empirical evidence that gay couples are less fit for parenthood than straight couples."

there's zero evidence that polygamy is worse than monogamy, but we bar the former and enshrine the latter. legislators make judgment calls like this all the time.

also - if the right of gays to marry is a const right, how can we const bar polygamy?
10.26.2006 11:20am
Archon (mail):
I think one of the hardest jobs in the world during the 30s and 40s would have been a Supreme Court justice. These justices basically had abhorent social issues put at your feet like segregation and racist prosecutions but could do nothing to stop it. Despite what must have been a strong temptation to inervene, the justices stood by the law and refused to end these practices. That must have been extraoridnarily difficult to do.

Sure, those justices could have made up some rights, interpreted "due process" to mean something to stop it, or overstepped their federal judicial authority by applying the 14th Amendment in some sort of odd incorporation scheme; but the justices threw off temptation and did what they had to do - rule on the law.

I think Justice Frankfurter put it correctly when he wrote:


Where all the effective means of inducing political changes are left free from interference, education in the abandonment of foolish legislation is itself a training in liberty. To fight out the wise use of legislative authority in the forum of public opinion and before legislative assemblies rather than to transfer such a contest to the judicial arena, serves to vindicate the self-confidence of a free people
10.26.2006 11:24am
Greg D (mail):
Kovarsky wrote:

Are you seriously making the argument that the basis for the distinction is that heterosexual couples can procreate? Let me assure you, there are more than enough orphaned children on the earth to go around. See, e.g. Africa.

That's such a lovely non-sequitor. For one, it's factually false (there aren't enough orphans in Africa and Asia to provide America with all the children we need to grow into tax-paying adults who will keep our society going). For another, it's utterly irrelevant:

1: No society has ever survived by importing all its kids (yes, some religious groups have done so, for a while. The ones that are still around, like the Shakers, don't appear to be doing well. They're certainly not growing).

2: The screams of outrage if the US did decide to go and "steal" all the babies of the world would be so loud as to deafen the entire human race.

Our society exists, and survives, because of heterosexual couples. Homosexual couples do not provide society the same, or equivalent, benefits. Therefore homosexual couples do not deserve the same benefits.

Yes, there are heterosexual couples who are as useless for society's survival as the vast majority of homosexual couples. We could, as a society, decide to go all busybody / fascistic, and and deny those couples the benefits they're getting that they're not earning.

So far, we, as a society, have decided that the cost of doing that isn't worth the benefits of doing that. It's that whole democracy / representative democracy / republican thing that means that We The People are the ones to properly decide how to do that, rather than letting "them the judges", our would be masters, decide for us.

If you want to try to convince a democratic majority to withdraw the benefits of marriage from those who don't reproduce, go for it.

If you want to try to convince a democratic majority to grant the benefits of marriage to homosexual couples, again, go for it.

Either of those actions would be legitimate.

Trying to get the courts to do an end run around We The People, OTOH, is not legitimate, and never will be.
10.26.2006 11:31am
Chumund:
Greg D,

Many courts have held that states do not have to recognize as valid marriages made in another state where such a marriage would violate that state's own public policy. Accordingly, even if it wanted to, the N.J. legislature could not remedy this situation by adopting gay marriages rather than gay civil unions. So, in that sense even if the court's holding extended to equality with respect to legal consequences in other jurisdictions (which is not at all obvious), it actually wouldn't make a difference.
10.26.2006 11:48am
On Lawn (mail) (www):
> Kovarsky: You've selectively ignored my request, both in this post and the other, to move beyond a fairly primitive view of constitutional interpretation.

Oh? Howso.

> Kovarsky: I'm deeply sorry that I didn't deduce that you had responded to another comment I made on another thread.

That is a curious place to blame your folly. Your deduction problem would be implicated in your confusion about what was said, not the question of whether or not something was said.

Your theory seems to be that legislatures should decide every constroversial issue.

Interesting interpretation of what I said. Its actually rather far off base, which makes me question much of your "deduction". In the statement I believe you are referring to I mentioned that just as a court shouldn't be told "give him a fair trial and hang him" the court shouldn't tell the legislature "give this a fair review and then write this legislation". Nowhere did it say that controversial decisions should be limited to one branch of government, in fact that is the opposite of what it says.

Again, your misunderstanding is a problem of deduction on your part, not the fact that you missed a reply entirely. But I am always happy to clear up your confusion, as much as it is in my ability to do so.

what does homosexually agnostic mean?

It means I don't care if people are homosexual or not. Which seems to be a real downer for advocates in this debate. People want to neuter marriage for the sake of homosexuality, and I simply don't care about homosexuality at all. Or apparently not enough to actually bias the system in their favor.

Because neutering marriage simply replaces the institution with the same-sex ideal for marriage. Which, in practice, tends to throw other minorities under the bus. It throws children's rights under the bus, as well as our consideration and protection of the handicapped. I don't find homosexuality important enough to empriveledge it at the expense of other minorities. I do not find it a compelling enough doctrine to actually build bias, prejudice and favor towards it (which apparently goes without any scrutiny in this decision as Jon Carpenter mentioned above).

> Kovarsky: why does this passage read as though it is the fault of gays that they have not conformed their behavior to the law that is accountable for their failure eto marry?

And now you see why this movement is neutering marriage for the sake of homosexuality. Because homosexuality is portrayed as if it were a handicap, that they are incapable of loving, honoring and cherising someone of the opposite sex. They are like people who claimed in the 50's to be genetically ingrained with their segregationist ways.

Some have gone so far as to label homosexuality as a social handicap, and offered that third-party fertility treatments be paid for by insurance or the state. But the Goodridge decision was even more egregious, it ruled that procreation was a mean-spirited basis for distinction and ordered the state resources to make up for the fact that naturally homosexuality is a non-reproductive act. Goodridge made resources of the handicapped available specifically to homosexuality, but didn't label it a handicap. Well, if you ask me homosexuality is not a handicap, so if you make the resources for the handicapped available to them you are either enacting a biased special pleading (prejudice) or you are committing fraud. Or both.

So I asked Randy R. his thoughts on the matter. I'd appreciate hearing your answer to the question. Although don't think your drippingly cute attempt to dismiss it with contempt goes unacknowledged :)

To help you triangulate the meaning I could more directly ask, do you feel homosexuality is a handicap such that marriage needs to be drasitcally altered in order to give them equal access to benefits?

If that question continues to baffle you, then I suggest this background reading: Homosexuality is not a Handicap

Kovarsky: and what does your remark about thet heritage-producing cast society mean?

That was a reference to Loving v Virginia. You should read the decision.

> Kovarsky: i am a little overwhelmed with confusion, but not in the sense that i'm overwhelmed by relativity. more in the sense that i'm overwhelmed by terrel owens.

If I might say, I could see where Terrel Owens as well as Einstein, would mentally challenge you.

But I am here to help, and graciously I hope. I can see how these concepts are completely foreign to your current paradigm, and how you might be confused at how I write them. That is why discussion takes place. I'm happy and willing to answer any question you might continue to have.
10.26.2006 12:08pm
Tony C:
Perhaps this court was able to see the simple truth that so many have overlooked with this issue -- There is no valid reason to deny the liberty of gay couples that wish to marry!

Acting to deny the liberty of a fellow American just because you don't agree with their view is the most unAmerican thing an American can do.

If, for the time being, they need to throw in the old "We don't have to call it marriage", in order to appease those citizens that have forgotten what this country stands for, then so be it.
10.26.2006 12:26pm
Q:
Greg D's argument is bogus. Just because some couples (both heterosexuals and homosexuals) require the dna of others, does not mean that they can not bring a child into this world.

The real issue is that this debate proves the stupidity of discriminating between single and married people. There is no valid reason for any state to issue marriage licenses.
10.26.2006 12:29pm
logicnazi (mail) (www):
Omar,

I'm glad to see you take a consistant position on this issue. I myself am tempted to think that Zeblocki and Safley were wrongly decided. Still, given that they were decided and are precedent I think that modern courts trying to follow this precedent can strike down bans on gay marriage without being activists.

In any case that is where the debate ends for me. Whether or not stare decicis trumps a particular bad ruling is easily debateable and once you are willing to allow the legislature to do things like deny deadbeat dads, criminals or people caught speeding the right to marry I can't accuse you of inconsistancy or prejudice (on that point).

Kvorsky,

I don't know if you were responding to me or not but I was arguing that NJ had a justification for denying gays the benefits of marriage because gays were less likely to be bad parents. They are rich and have children after explicit planning so you are unlikely to see accidental kids cared for by a single parent who doesn't really want them or know what to do with them.

Since obviously it is more important for the state to encourage people who would accidently have children to have the support of another committed child raiser there is a rational justification to give straights an extra incentive to marry.

I think it is revealing that few of the people who claim to be objecting to this ruling on legal grounds are willing to make use of this argument. Further evidence that it isn't really the legal aspects of the deciscion that people object to (some people excepted).

--

Archon,

The judges back then were immersed in the culture of the time. Surely these things didn't seem that bad to them.

Consider the job of an immigration judge today. Despite squalid conditions, lack of political freedom, food shortages, and little medical care in illegal immigrants home countries these judges have to send whole families back into extreme poverty. If this sort of disparity existed in our own country we wouldn't tolerate it for an instant. Even the most rabid anti-government, anti-tax conservative still believes in making sure american children have sufficent food, vitamins and vaccinations. Yet once they come from beyond our borders we suddenly feel that we don't have the same moral obligations to them.

I'm not saying that an immigration judge should ignore the law and let illegal immigrants stay. However, I suspect the situation is much like that of a judge in the 20s and 30s. Despite the obvious harms suffered by certain groups social/cultural forces make it pretty easy to think that you are doing the right thing even when you are supporting the system that creates that harm.

Listen to some interviews with whites who worked in the government of South Africa before DeClark (sp?). It's pretty amazing but apparently people can be convinced almost anything is morally just. It should make one wonder what assumptions society holds now that we will later look back on and shudder.
10.26.2006 12:53pm
Q:
I don't know if you were responding to me or not but I was arguing that NJ had a justification for denying gays the benefits of marriage because gays were less likely to be bad parents. They are rich and have children after explicit planning so you are unlikely to see accidental kids cared for by a single parent who doesn't really want them or know what to do with them.
Since obviously it is more important for the state to encourage people who would accidently have children to have the support of another committed child raiser there is a rational justification to give straights an extra incentive to marry.


In other words, you want to reward stupid people for being stupid. That's just plain STUPID.
10.26.2006 12:59pm
On Lawn (mail) (www):
> Tony C: There is no valid reason to deny the liberty of gay couples that wish to marry!

I agree entirely. But I do not blame the law for their feeling inable to love, honor and cherish someone of the opposite sex.

But even deeper in your argument seems to be the premise that unless you (personally) agree with reasons to not do something it should be done. That is exactly 1/(0.5 * 300,000,000)th of a good reason to do something alright.

However, it seems that this isn't a case of liberty but empriveledgement. There are actively given resources and priveledges to the arrangement. And that requires scrutiny. Any class of people are empriveledged it requires a reason to do so, not a reason against it. So I would welcome your reasoning on why the same-sex couple should be so empriveledged.

For instance, this is how the justification looks for those that want to achieve their human potential of romantic involvement with chidlren as a natural incarnation of that relationship.

The gender-complete arrangement provides for responsibility of procreation, honoring a basic right for children to be raised by the parents who gave them birth. Keeping a family intact by forming a legally bonafide foundation is the least intrusive and most fair way for the state to accomplish it. So it recognizes the already institutionalized form of this arrangement, marriage.

So now it is your turn.
10.26.2006 1:00pm
te:
On Lawn

It may not be my turn, but maybe you could start by learning to spell the names of concepts before you start to criticize them.
10.26.2006 2:01pm
NR:
On Lawn,
It's not Kovarsky. Your comments are extremely difficult to follow. You might consider cutting back on the rhetorical flourishes and focusing on putting forth a clear, linear argument. Try framing your arguments as logical syllogisms; that generally helps.
10.26.2006 2:15pm
Kovarsky (mail):
On Lawn,

im done responding to you, because you're not interested in clarifying your legal point. i find having to defend one's credentials in the face of someone who obviuously doesn't really understand constitutional law odious, so lets just leave it at the proposition that you should maybe be a little bit more careful about to whom you direct comments like "you should try reading loving."

That being said, I know nothing of the Goodridge opinion nor would I want to defend it if it says what you thnk it says. Homosexuality is no "disability," unless you count too much rufus wainwright and the indigo girls.
10.26.2006 3:10pm
Kovarsky (mail):
AS,

My apologies if I do have you mixed up with someone else, but to be honest, I don't think that I do.
10.26.2006 3:13pm
On Lawn (mail) (www):
Wow, what a hornets nest.

Well, there are many ways one can try to excuse themselves from making valid points. These do not appear to be one of them:

> Te: It may not be my turn, but maybe you could start by learning to spell the names of concepts before you start to criticize them.

I've been very interested in grammar in this debate. Sometimes I like to say that I put at least 50 mistakes in each post to keep the grammar nazi's busy. However this is a mute point. I doubt that spelling has thrown you off the scent so badly. If so I wonder why turn your venom loose on me when people such as Kovarsky who have had problems capitalizing sentences, and whatnot.

Truth is posting on the internet is really up for editorial review. People think and post. And correcting errors while posting is usually too cumbersome. Which is why I never hold people to such a stringent standard, at least not in the comment section.

> KR: It's not Kovarsky. Your comments are extremely difficult to follow.

Perhaps, but I hardly can tolerate making confusion an excuse in an argument. Kovarsky is clearly confused, and whatever part I play in it, I am hoping to help rectify. Perhaps if there is something you wish clarification on, I can help that too.

I am uniquely flattered, in an odd way, that my comment style is becoming such a distraction from an otherwise interesting topic. While I can seem incredulous at the opportunistic change of focus, I will simply accept that the people have problems understanding and help out.

So what are you confused about?

> Kovarsky: im done responding to you, because you're not interested in clarifying your legal point.

Hmm, and above Te decided the problem was my poor writing style. I wonder what it is about your post that increases my incredulity in that attempt :)

> Kovarsky: i find having to defend one's credentials in the face of someone who obviuously doesn't really understand constitutional law odious,

How sad you feel that way. I actually like it when people are so demonstratively off base as you claim me to be. They are easier to discredit. I've not seen such refutation from you, perhaps you can point me to those hum-dingers that really blew my point out of the water?

> Kovarsky: so lets just leave it at the proposition that you should maybe be a little bit more careful about to whom you direct comments like "you should try reading loving."

So let me get this straight, you read loving and entirely missed the renouncement of an enforcement of cast based on ancestry? It seems to be the central part of the ruling...

There can be no question but that Virginia's miscegenation statutes rest solely upon distinctions drawn according to race. The statutes proscribe generally accepted conduct if engaged in by members of different races. Over the years, this Court has consistently repudiated "[d]istinctions between citizens solely because of their ancestry" as being "odious to a free people whose institutions are founded upon the doctrine of equality."


Hmm. Interesting.

> Kovarsky: That being said, I know nothing of the Goodridge opinion nor would I want to defend it if it says what you thnk it says.

I appreciate honesty.

> Kovarsky: Homosexuality is no "disability," unless you count too much rufus wainwright and the indigo girls.

I don't catch the significance in your references, but no matter. I don't think homosexuality is a disability either, so it should not have the same access that the disabled have. In this case that would be marriage even though their combination is guaranteed to be non-productive and thus orthogonal to the central purpose of marriage.

In other words, nothing needs to change about marriage and its requirement for equal gender representation in order to suit their combination.

____

Well it was a nice effort, Kovarsky, Te, et all. I appreciate the criticism and hope to do better. But they seem to have no impact on this debate, and they certainly don't justify Kovarsky's tantrums over the issue. Confusion is one thing that is solvable. But, if I may be so bold, I doubt it is confusion you are balking to.
10.26.2006 5:18pm
Toby:
All of this casual conversation about "DNA from outside the couple" and the like draws my attention to a whole series of issues best illustrated by the Richard Phillips / Sharon Irons case a few years back. THe case in question declared that the man, despite the uncotested claim that he had never had, uhm, Clintonian sex (and not one of the variants that is not sex) was responsible for paternity..

Te judicial ruling included the finding thatt "She asserts that when plaintiff 'delivered' his sperm, it was a gift -- an absolute and irrevocable transfer of title to property from a donor to a donee," the decision said. "There was no agreement that the original deposit would be returned upon request"

And still paternity was assessed.

THis, too, is pat of the broad panoply that is denied by those trying to simplify issues to make their case.
10.26.2006 5:59pm
Rich Rostrom (mail):
"What's the basis for granting a select list of the rights but not the others?" Legislative discretion! The way SCoNJ has ruled, legislative discretion evaporates. A legislature's action in an area may be interpreted as requiring much broader or very different actions by a court wielding the equal-protection rule or NJ's ersatz equivalent (requirement of "legitimate governmental purpose"). SCoNJ thus asserts a power to require the legislature demonstrate such a purpose to the Court's satisfaction, or else rewrite the law.
10.26.2006 6:27pm
On Lawn (mail) (www):
SCoNJ thus asserts a power to require the legislature demonstrate such a purpose to the Court's satisfaction, or else rewrite the law.

And therein lies the hypocrisy. While demanding, and unduly ignoring (ignore is a better word that rule against in this decision) the basis the state gave on requiring equal gender representation in marriage, they required absolutely no rational nor offered any for the same action to happen to the homosexual couples.

And just homosexual couples, not all family arrangements where children need the state recognition and support. But just homosexuality.

This is truly a decision from the court of Alice in Wonderland.
10.26.2006 7:45pm
KeithK (mail):

The U.S. constitution uses only the masculine third person singular. You don't see courts invoking those provisions cowering in fear that they'll only apply to men.

This seems like nitpicking at the end of this long thread, but I can't help but respond since this is a pet peeve of mine. The fact that the Constitution uses the masculine third person singular does not in any way imply it's application is restricted to men. Proper English uses the masculine as the generic form when the sex of the person referred to is indeterminate. This is changing today as "they" is increasingly used instead of "he". To claim that old statutes or constitutional clauses only refer to men simply because they use he (in the absense of any other context) is simply wrong.
10.26.2006 8:35pm