Can the NJ Supreme Court mandate the NJ Legislature to enact a law?

Factual Questions
1

Page 3 of the marriage/civil union decision states:

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

http://www.judiciary.state.nj.us/opinions/supreme/a-68-05.pdf

So what would happen if the legislature does nothing? (Skipping the Andrew Jackson parallel) Can the NJ Supreme court give mandates and what gives them such power (besides a compelling reason)?

2

From what I understand of it, the decision was that marriage in NJ as it stands is unconstitutional discrimination. They have ordered the legislature to correct that. That is their job, to interpret law and if its found unconstitutional to ensure it is corrected.

3

The court has the power to strike down laws that violate the state constitution, so it can strike down the provisions of the marriage law that restrict marriage to mixed-sex couples if the legislature fails to act. It’s been a while since I read the VT decision but I think they said pretty much the same thing.

4

So if the legislature fails to act does that mean same-sex marriage becomes legal by default?

5

I think the court would have to issue a specific order to that effect, but yes.

6

To invent a new sort of solecism, it’s the activist version of judicial self-restraint. A court, on finding that a statute is unconstitutional, has the right to mandate to anyone but the Legislature and Governor (or Congress and the President), that action X be taken to correct the problem. For example, in the Charlotte-Mecklenburg integration bussing case, SCOTUS actually told the consolidated school board what they were going to do how and by when.

The SJC of Massachusetts and now the Supreme Court of New Jersey have taken another tack: to tell the Legislature, “Voila! A hot potato! Catch!” In other words, this law before us, we have found to violate the state constitution in these particular ways. The problem needs fixing. Rather than order the law to be enforced in accordance with the constitutional guarantee, which could be controversial, we the court direct you the legislature to identify a repair of the breach between law and constitution and adopt it at your discretion. We are staying our decision for six months to enable you to identify and adopt that fix. Seeya!

The legislature has, really, three choices: (a) adopt a civil union law, (b) amend the marriage law to permit gay marriages, or © change or amend the Constitution’s equal protection clause to allow them to forbid gay marriages. (The court decision did not specify option ©, but it’s a commonplace that when a court rules on the basis of constitutionality, an amendment to change the relevant portion of the constitution is always an option. On the Federal level, Congress has done this at least four times in response to SCOTUS decisions.

To forestall a possible objection, I don’t know New Jersey’s timetable for adopting a constitutional amendment from scratch, but it’s standard that whenever a court stays the effect of a decision to allow a party time to act to resolve the problem, and that party needs more time to complete such a resolution than was granted in the stay, the court will normally grant a motion to extend a stay.

It’s possible, too, that New Jersey law, unlike some other states’, permits the high court to issue orders to the legislature. Someone presently or formerly licensed to practice law in New Jersey would have to speak to that possibility. (Note that I have not loaded the PDF owing to a slow connection, so I cannot speak to the context of the language used in this decision.)

7

Aren’t we violating the separation of powers here? Courts are not legislative bodies, and it seems to me that the New Jersey Supreme Court’s decision is basically a legislative act. “I command you to pass a law creating same-sex partnerships of some sort.” Maybe it’s an indirect legislative act, but still, it seems to me that this is outside of a court’s usual sphere of authority.

8

If the NJ legislature (and the voters) passed a marriage-related law that was unconstitutional, that is where the mis-step occured. The Supreme Court is only empowered to rule that such laws are unconstitutional once a case reaches them regarding that law.

Though I truly hope this does not happen, my hunch is that it is only a matter of time until Paragraph I, Section I of the NJ State Constitution is ammended such that a law written in the same vein as the law in question would not be interpreted as unconstitutional.

9

Not at all. Part of the role of the courts is to determine how the applicable constitution/s apply to the laws that the legislative wing has made. It is perfectly within the court’s purview to say that the current state of the laws violates constitutional guarantees, and to provide for a change to the laws. Otherwise, there’s nobody to enforce the constitution.

10

Re amending the NJ constitution, from the thing itself:

11

So there is no way for the legislature to submit an amendment to the people before the next general election. Dunno when the next general election would be in New Jersey, but assuming that it’s 2008 then the state will have close to two years to get used to the idea of the homosexuals being full citizens before they can be asked to strip them of their rights.

12

A court’s responsibility and power is to craft a remedy to an injustice brought before it through litigation.

The essential claim in this case was that the plaintiff same-sex couples had applied for and been refused marriage licenses and sued state officials to require the officials to issue marriage licenses. The Supreme Court has determined that it is illegally discriminatory for the state to prohbit same-sex couples from the legal benefits of marriage, but has held off on crafting a remedy. The court could have (and still can if necessary) order those officials to grant licenses to the same-sex couples, effectively imposing same-sex marriage.

It is noteworthy that every judge on the Court agreed that the state must give same-sex couples equal rights. The four judge majority held that the state could not discriminate against same-sex couples in any of the legal consequences of the marriage relationship, but it could create a separately named status like a civil union. The three dissenters said that nothing less than full marriage, named that, would do.

Because the four judge majority found that there was something the state could do less than full marriage, it held off imposing a remedy to give the state time to come into complinace with its state constitutional obiligations. As noted above, the state could comply with its mandate to provide a equal marriage-like relationship in several ways (e.g. Vermont-style civil unions, Massachussets-style same-sex marriage, or Hawaii-style amendment of the state constitution). The Court gave the legislature a 180 days to act, but did not specify what would happen if the state failed to act.

Because the Court unanimously held that equal rights were required, I would be very surprised if it were to back down in the face of legislative opposition (though a state constitutional amendment would render the whole issue moot). If 180 days were to pass without legislative action, I would suspect that the Court would hold a hearing on possible judicial remedies and issue some sort of injunctive relief upon the state officials who are the defendants.

I don’t think that a court could legitimately impose civil unions because that would be creating a new status, an essentially legislative function. If the legislature failed to act, I don’t see that the Court would have much choice but to hold that the state could not prohbit same-sex couples from marriages under the existing marriage laws and procedures. However, even if the Court were to come to this conclusion, it might give the legislature an additional period to enact complying civil union legislation before same-sex marriages were judicially imposed.

The key thing here is that the court system had the power to order the state officials to register same-sex marriages. The courts decided to hold off on this remedy to allow the state to voluntarily (though under compulsion) get its laws into compliance with the state constitution’s equal protection mandate.

13

That’s true, but, if there were a genuinely strong legislative and public clamor for a state constitutional amendment (which almost certainly won’t happen in New Jersey), there is a good possibility that the Supreme Court could extend the 180 day deadline to give the constitutional amendment process time to go through. If it looked like an amendment was likely to pass which would undo any same-sex marriages in the interim, I would think that the Supreme Court would be reluctant to create a small class of couples that would be subject to a transitional and expiring status.

14

Does anyone have a cite for a state-by-state breakdown of which have existing state constitutions that define marriage as “between a man and a woman” and which ones will have such constitutional definitions on the ballot?

As much as I try to have what little faith I can in the US citizenry, I continue to fear that an ammendment to the US Constitution will not even become a national issue if all 50 states end up massaging their respective constitutions as such.

15

HRC.org is a good starting place for info about the various state laws.

16

Based on my interpretation of the maps posted on HRC.org…

Existing state constitutional ammendments limiting marriage to heterosexuals: 19

Alaska
Oregon
Nevada
Utah
Montana
North Dakota
Nebraska
Kansas
Oklahoma
Texas
Missouri
Arkansas
Louisiana
Mississippi
Alabama
Georgia
Kentucky
Ohio
Michigan

Pending (not necessarily in 2006) state constitutional ammendments limiting marriage to heterosexuals: 10

New Jersey
Massachusets
Delaware
Virginia
Tennesee
South Carolina
Wisconsin
South Dakota
Idaho
Indiana

“Dead/Killed” state constitutional ammendments limiting marriage to heterosexuals: 10

Alaska (already in the first list, so I’m not clear on why they’re here too. Alaskan Dopers?)
Washington
Minnesota
Iowa
Illinois
New Hampshire
Pennsylvania
Maryland
West Virginia
North Carolina

17

In addition to the states mentioned above, Fox News’ website says that, “State courts including New York, Washington, Nebraska and Georgia have upheld voter-approved bans on gay marriage.” (Bolding mine)

18

In New York, the high court recently ruled that the state’s Domestic Relations Law should be interpreted to only permit marriage between a man and a woman, but that there is no state constitutional or other barrier to the legislature’s permitting same-sex marriage if it changes the law. There is no voter-approved ban on same-sex marriage in New York.

19

Ah, I see. Still, it sounds like they don’t find anything wrong with the state not having gay marriage or civil unions.

20

Are you saying that

  1. If the NJ law simply states… “Marriage licenses may be granted only to one man and one woman.”, and

  2. NJ and/or third parties then use the status of “marriage” to discriminate in favor of married people.

Then, the court can force the NJ legislature to change #1 instead of ruling on the issues that arise as a result of #2?