I haven’t read the opinion itself yet, just the CNN Story found here:
In its 4-3 ruling, the New Jersey court said, “The issue is not about the transformation of the traditional definition of marriage, but about the unequal dispensation of benefits and privileges to one of two similarly situated classes of people.”*
If that’s a fair summary of the opinion, it pretty much tracks the equal protection argument I’ve posted elsewhere (don’t remember if I’ve posted in a similar thread here or not). The Court said the legislature can choose to call it marriage, or they can call it civil unions, but the State Constitution requires the same benefits & privileges be extended to same sex couples.
I’m not especially interested in debating whether gay marriage should or should not be allowed. I agree with the Court, and I expect that eventually most states will have some form of gay marriage. I am interested in whether this decision will have much effect on the election. My guess is that the GoP is going to try to use the issue to turn out the vote yet again. From a certain perspective, this decision may actually help them in the election even though they’ll argue the same old line about family values blah blah blah. They’d much rather talk about that than talk about the Foley scandal. Is this enough to reverse the growing momentum the Dems were building? I kinda doubt it…
Not quite. They said gays had to be given the same rights, but it didn’t have to be called marriage. This is similar to what happened in VT and and led to their law concerning civil unions.
I wouldn’t be surprised to see the Pubbies pick up on this. Especially in NJ since NJ is, oddly enough, in play for one Senate seat-- the Republican has an outside chance of winning.
Interestingly enough (gleaned from the MPSIMS thread linked to above) the three dissenters believed that gay unions should be called marriage. So it’s a 7-0 vote for official rights for gay unions. And, sadly, I must agree with John Mace that the Republicans in NJ will be spreading slime shortly.
I wonder what the Democratic guy in NJ is going to do. Is he on record one way or another about SSM? I’d hate to have to make the faustian bargain he might have to make and denounce the decision even if he agrees with it. Guess that’s why I went into science instead of politics…
I think the best thing he could do is say “I’m totally against this decision” in whatever party broadcasts they do, and they say “I’m totally against this decision - it should be called marriage” in actual meetings with the public. It would be a pretty tricky thing to do, though.
Whatever he does, it should be clear and definative rather than wishy washy. Either say the court was wrong to get involved, or say that he supports civil unions but not marriage. I don’t think him saying that he supports gay marriage is in the cards. But in the place he’s in, he cannot afford to wishywash.
Unfortunately, I have a feeling that this ruling will cement the likihood of the “Virginia: gay people suck and calling a former Governor a n**gger isn’t a big deal to us” amendment passing.
They actually did the same in Hawaii, except, our Supreme Court made it a suggestion. The version passed by the Legislature was so poorly worded, it got voided. No further action was taken.
Unfortunately, I’d guess you’re right about that, too. And considering that the difference between Keane and Menendez appears to be about 4 points, I’m guessing there will be a lot of them.
I’d make a lousy politician for any number of reasons. I’d be inclined to take a stand and let the chips fall where they may. This is why I’ll never get elected to anything.
Nothwithstanding the points brought out in the NYT article you referenced in your subsequent post, rest assured that the only thing both Menendez and Kean have been doing **IS ** spreading slime all over our television for weeks now.
Although I try not to listen, it’s my impression that they’ve both spent millions of dollars telling us what their opponent does or doesn’t do, not what **THEY ** will do or not do.
It’s an interesting opinion, for a couple of reasons.
Firstly, the New Jersey Supreme Court had two claims to consider: that same-sex marriage was a “fundamental” – that is, a Due Process right, and that it was a violation of the state’s Equal Protection Clause to fail to permit it.
The Due Process claim lost:
The decision rests of the state’s Equal protection Clause, and it’s interesting because of how Equal Protection Analysis is evidently done in New Jersey. As long-time readers of the various threads on this subject undoubtedly remember, in federal Equal Protection claims, analysis depends on what classification is created by the legislation. A racial classification is subject to strict scrutiny; a gender-based classification to intermediate scrutiny, and classifications in other areas mostly subject to rational basis review.
New Jersey doesn’t use this sort of analysis at all. It’s irrelevant to NJ EP what type of classification is at issue; instead, they strike a balance between how important the right at issue is compared with the state’s interest in restricting it.
Quoting Sojourner A. v. N.J. Dep’t of Human Servs., 177 N.J. 318, 332 (2003).
I should note that in past discussions about this issue, more than one poster has suggested that this is how Equal Protection claims SHOULD be analyzed.
In any event, this is a Vermont type decision, not a Massachusetts type decision – that is, the legislature can choose to enact a parallel civil union structure, or they may choose to permit same-sex couples to marry.
Long-time readers know that I have generally opposed decisions of this type that come at the behest fo a court decision. However, this particular decision is pretty palatable to me. It does not fly in the face of common sense by announcing that same-sex marriage is “deeply rooted in our nation’s history and traditions” and is therefore a fundamental right. It simply balances the issue against the government’s interest in restricting it, as is the law in New Jersey, and concludes that the government has no reason strong enough to outweigh the personal interest at stake. That’s true.
Now it’s to the legislature, and hopefully they will have the courage to realize that same-sex marriage is not the death-knell of the nation. But frankly, even if they don’t, at least the state’s legal protections of marriage will be available to same-sex couples.
Actually in NJ the issue is not as easily exploitable as most states. NJ in recent polls is split pretty evenly between those that are for and against civil unions/marriage. I have more details in the IMHO thread I started last night. The Republican is Thomas Kean Jr, and I doubt he will run as anti-gay marriage as he is trying hard in the last month or two to appeal to moderates.
And that, in my honest opinion, is how laws on private and personal issues should be written. Not that they all are, but it seems to have the most moral equity. Bricker, opinions on the variant versions of scrutiny versus this decision, insofar as how each creates a more equitable result?
Handled by wise philosophers, I think New Jersey’s scheme is likely to create more just results all around.
The only problem, and the reason we attempt to put in place more detailed guidelines, is the regrettable lack of any guarantee of wise philosophers being found on a particular judicial bench.
Obviously, I’m not Bricker, but I think that the bad part of the NJ method is that you never know how any given court is going to weigh the equities, so there is almost no predictive value to that scheme. The legislature, lowers courts, and the public-at-large will have no idea what’s constitutional or unconstitutional until the Supreme Court rules on that specific issue, and the Court is free to change its mind at any time.
And that, in my opinion, doesn’t just invite judicial activism, it mandates it. Policy decisions should be made in the legislature. So even though I agree with the concept of gay marriage, I’m not particularly thrilled about this decision.
