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

Factual Questions
21

On your question 1, in the decision, the Court recognized (slip op. at 26):

On your question 2, the Court noted that there were a great number of rights and benefits that were available to married couples that were denied to committed same-sex couples. (See slip op. at 43-48) The Court concluded that: “We now hold that under the equal protection guarantee of Article I, Paragraph 1 of the New Jersey Constitution, committed same-sex couples must be afforded on equal terms the same rights and benefits enjoyed by married opposite-sex couples.” (slip op. at 57)

The Court found that, given 1 and 2, the state was acting unconstitutionally, and as such, the Court had to fashion a remedy. What the remedy can be is limited by the inherent power of the judiciary. In essence, the judiciary can interpret the law, and once it determines what the law is, it can order other government officials to follow the mandates of the law. However, the judiciary cannot tell a government official how to act when the law allows that official to act with discretion (assuming that the official is acting within the scope of his or her discretion).

Applying these principles, the court system cannot tell the legislature how to legislate, because legislation is an inherently discretionary act. However, if the courts determine that state officials are carrying out their functions in violation of the constitution or the law, they can order those officials to act in conformity with the law.

Let’s start with the partial dissent. Chief Justice Poritz concludes: “I would extend the Court’s mandate to require that same-sex couples have access to the ‘status’ of marriage and all that the status of marriage entails.” (dissent slip op. at 19-20) Because this is a dissent, the opinion does not actually have say what specific remedy it would have ordered. However, it seems likely to me that had the Chief Justice’s view been the majority, he would concluded that the state constitution required that marriage be open to couples of any sex, and ordered the state officials who were the defendants to issue licenses to any otherwise qualified couples who applied whether they were of the same sex or mixed sexes. If any other state official then tried to deny a same-sex couple a marriage license, or deny a married same-sex couple any of the rights and privileges given to married hetrosexual couples, the aggrieved couple would have an open and shut case against the offending official. If an official disobeyed a specific court order directing him or her to do something (or refrain from doing something), the court could find the official in contempt, and if necessary order him or her jailed until he or she complied.

Ordering state officials to recognize same-sex marriage on an equal basis with hetrosexual marriage is something that would be clearly within the judicial power. But what the majority concluded was that all the constitution required was that same-sex couples be afforded equal legal rights with heterosexual married couples, and that recognition of same-sex marriage as such was not required. However, it would be very difficult – perhaps impossible – for the Court to fashion a remedy within the scope of judicial power that equalizes the legal rights of same-sex couples who wish to be in a similar status to marriage with those heterosexual couples that are married.

So what is the Court to do? Because there isn’t anything compelling the Court to act immediately, it can give the state as a whole (acting through its legislature) time to bring its law into conformity with the state constitution, as recently interpreted by the Court. If the legislature takes the opportunity to act within the specified time, everything works out great.

The Court, however, left open what would happen if the legislature failed to act, and there was no reason for the Court to necessarily have determined what it would do in that “what if” scenario. Should it come to pass, however, the Court would most likely conclude that it had do do something, and that the something it would do would have to be within the judicial power. In my view, the most likely and reasonable thing for the Court to do if the legislature fails to act within 180 days (and any additional time the Court may grant), would be to order state officials to recognize same-sex marriage on the same basis as heterosexual marriage.

22

Thinking about this a bit further, I think two famous civil rights cases provide good examples on how this process can work.

The first is Loving v. Virginia, 388 U.S. 1 (1967), which overturned Virginia’s law prohibiting interracial marriages as violating the Fourteenth Amendment to the US Constitution. In that case, an interracial couple who had married in D.C. moved to Virginia and were prosecuted and convicted under that state’s anti-miscegenation laws. On appeal, the US Supreme Court concluded:

The Supreme Court’s actual holding was simply that the Loving’s conviction was reversed. However, the result of the case was that the anti-miscegenation laws of Virginia and the other states that had them promptly became unenforceable.

There is little doubt that the NJ Supreme Court could have made a similar sweeping conclusion barring gender-based restrictions in marriage, and from a state law point of view, that would have been that, absent a state constitutional amendment.

The other case to consider is Brown v. Board of Education of Topeka, which spent over three years in the US Supreme Court, resulting in two major decisions, 347 U.S. 483 (1954) [Brown I], which was initally argued December 9, 1952, reargued December 8, 1953, and decided May 17, 1954; and 349 U.S. 294 (1955) [Brown II], which was argued April 11-14, 1955 and decided May 31, 1955.

Brown was actually four cases (cases from three states and D.C.) argued and decided together. Brown I overturned the “separate but equal” doctrine announced in Plessy v. Ferguson, 163 U.S. 537 (1896), but the Court asked for further argument on what relief it might grant:

[quote]
We conclude that in the field of public education the doctrine of “separate but equal” has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment. This disposition makes unnecessary any discussion whether such segregation also violates the Due Process Clause of the Fourteenth Amendment.

Because these are class actions, because of the wide applicability of this decision, and because of the great variety of local conditions, the formulation of decrees in these cases presents problems of considerable complexity. On reargument, the consideration of appropriate relief was necessarily subordinated to the primary question - the constitutionality of segregation in public education. We have now announced that such segregation is a denial of the equal protection of the laws. In order that we may have the full assistance of the parties in formulating decrees, the cases will be restored to the docket, and the parties are requested to present further argument on Questions 4 and 5 previously propounded by the Court for the reargument this Term.

[quote]

Although Brown I is widely hailed as one of the Supreme Court’s greatest civil rights decisions, Brown II remains highly controversal. Brown II found:

[quote]
Full implementation of these constitutional principles may require solution of varied local school problems. School authorities have the primary responsibility for elucidating, assessing, and solving these problems; courts will have to consider whether the action of school authorities constitutes good faith implementation of the governing constitutional principles. Because of their proximity to local conditions and the possible need for further hearings, the courts which originally heard these cases can best perform this judicial appraisal. Accordingly, we believe it appropriate to remand the cases to those courts. . . .

While giving weight to these public and private considerations, the courts will require that the defendants make a prompt and reasonable start toward full compliance with our May 17, 1954, ruling. Once such a start has been made, the courts may find that additional time is necessary to carry out the ruling in an effective manner. The burden rests upon the defendants to establish that such time is necessary in the public interest and is consistent with good faith compliance at the earliest practicable date. To that end, the courts may consider problems related to administration, arising from the physical condition of the school plant, the school transportation system, personnel, revision of school districts and attendance areas into compact units to achieve a system of determining admission to the public schools on a nonracial basis, and revision of local laws and regulations which may be necessary in solving the foregoing problems. They will also consider the adequacy of any plans the defendants may propose to meet these problems and to effectuate a transition to a racially nondiscriminatory school system. During this period of transition, the courts will retain jurisdiction of these cases.

[quote]

As a result the Court remanded the case to the lower courts “to take such proceedings and enter such orders and decrees consistent with this opinion as are necessary and proper to admit to public schools on a racially nondiscriminatory basis with all deliberate speed.” Although Brown I sweepingly barred racial discrimination in schools, the “all deliberate speed” language in Brown II was taken by many school officials to act with much more deliberation than speed, and spawned decades of litigation over school desegregation.

It is a hotly debated question whether it was a good thing or a bad thing that the Brown II decision allowed the actual process of desegregation extended time to occur. Although there was great backlash to desegregation under Brown, the sharpest conflicts occurred locally and over a stretch of time as the district courts struggled to enforce Brown in their local school districts. Had the Court ordered immediate desegregation, however, the backlash might have been explosive and nationwide (or at least regionally in the greater South), and the court system and federal officials might have been unable to enforce its decree.

Like Brown II, the New Jersey system is allowing time for the government to act in response to its declaration of a civil right. As to what might happen if the government is non-compliant, we can look to the various remedies imposed on recalcitrant school officials in the school desegregation fight, ranging from orders requiring compliance all the way up to enforcement by federalized national guard troops. Though I doubt that the fight over gay marriage will be as bitter as that over desegretation, the idea of slow implementation involving multiple aspects of government sometimes provides a necessary safety valve for imposing controversial civil rights.

23

Billdo… thanks for the very detailed analysis !!

Question: Could a court decide there is too much violent crime and order the legislature to fund more cops, fund more prisons , increase penalties or the like?

24

Generally, the answer to those questions is no. A court can only determine the legal rights of an individual or group of individuals. There is no legal right to a particular level of crime or enforcement.

However, with regard to prisons, “cruel and unusual punishment” is barred under the Eighth Amendment to the US Constitution (and analogous provisions in state constitutions). When prisoners sue, courts may determine that particular prison conditions constitute unconstitutional “cruel and unusual punishment” (or otherwise violate the rights of the prisoners), and may order the prison officials to eliminate the offending conditions. If it is something simple (e.g. stop reading the prisoners’ legal mail), the court may just issue a straightforward order. If it is a complex and structural problem (e.g. relieve overcrowding), the courts will work with prison officials and other governmental branches to fix the problem in the way we’ve been discussing.