More on gay marriage
By the way, I feel the need to point out the following:
I don’t think the manner in which New Jersey’s court OK’d gay schmarriage is acceptable. Just like I didn’t think Gavin Newsom was right when he allowed gay couples in San Fran to get hitched. Newsom broke the law. NJ made it up.
However, I’m not dissatisfied with the result of either.
The system is broken. But even a broken system yields a good result occasionally.
October 27th, 2006 at 1:06 pm
Perhaps I’m just not up on what happened in NJ, but it appears that the court found the law to be lacking and needing of redress. Thats what courts do. See Brown v. Board of Education.
October 27th, 2006 at 1:10 pm
Well, I don’t know of any structure where the courts can tell the legislature to pass a law.
October 27th, 2006 at 2:33 pm
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Yea, I was thinking the same thing. They have; however, given themselves the power to declare laws unconstitutional. I haven’t caught the judgment yet (haven’t seen it linked to, and haven’t sleeked it out)
Have the courts said “fix this law or else we strike the laws defining marriage from the NJ law books because they violate equal-protection”?
October 27th, 2006 at 6:10 pm
SM, I have the opinion, and here’s the active part you’re wondering about:
Basically, striking the entire marriage statute would have caused chaos, so they’re inviting (not ordering) the legislature to cooperate. If the legislature does not cooperate, the court has the option of crafting further relief (i.e. striking the marriage law), but the legislature would be crazy to push things anywhere near that far.
October 27th, 2006 at 7:45 pm
Thanks, but this is the Inter-tubes, got a link?
October 27th, 2006 at 10:24 pm
IIRC, something similar happened in Massachussets and Vermont…the courts asked the legislature to make a law.
October 28th, 2006 at 12:06 am
The decision can be found here.
I’ll note that I disagree with the opinion, and strongly dislike that emphasis on “degenderizing” the English language that takes place – even though the same analysis could just as easily prevent legislation for invading the bathroom of the other gender. Even worse, the opinion reeks of selecting evidence only when it affirms the primary opinion (for example, the decision of Blanchflower v. Blanchflower remains ignored despite its relevance).
The opinion freaking states clearly that not only is marriage “Not a Right”, but that that the legislature is required not to remove a law, but to avoid excluding an alternative set in future laws. In short, the opinion largely pulls its power from the ideas that “New Jersey is ‘different’, and should be more pro-gay ‘rights'”. In fact, the authors clearly state that they oppose originalism : they point out that none of the New Jersey Constitutional writers could possible have imagined the text to establish gay marriage. The authors simply respond that “There has been a developing understanding that discrimination against gays
and lesbians is no longer acceptable in this State.” No actual support of the statement that this is discrimination, particularly interesting for something that is neither a right nor an ability given to the any other group as of this time.
At one point, this becomes simply ludicrous : the authors state that though there is no right to gay marriage, and that there is no negative societal cost to gay marriage / civil unions, yet still insist that the law must be judged as “the nature of the right at stake, the extent to which the challenged statutory scheme restricts that right, and the public need for the statutory restriction (clerk’s summary).” Even later, the opinion’s authors state “… This Court will never abandon its responsibility to protect the fundamental rights of
all of our citizens…” even when there are no fundamental rights to be protected.
And, of course, the decision is distinctly lacking in pragmatism : with over 44% of the populace of New Jersey strongly opposed to gay marriage, I have little doubt that the backlash from this act will clearly and simply negate any “benefits” the gay ‘rights’ movement gets in exchange for their political capital.
October 28th, 2006 at 1:12 pm
New Jersey always had an illiberal activist court, but this time they tipped the balance from a corrupt ‘do anything to get elected’ Democrat Senator to a corrupt ‘do anything to get elected’ RINO. Although it has been impossible to separate the words corrupt and senator for quite a while in New Jersey.
Won’t make a difference here in the great State and criminal enterprise that is New Joisey. Both are gun-grabbing, Bush hating, progressive liberals.