The NJ Ruling Was Not "Anti-Marriage"

President Bush Thursday lashed out at the New Jersey Supreme Court for voting earlier this week to give same-sex couples the same rights as opposite-sex couples when it comes to marriage benefits. "Yesterday, in New Jersey, we had another activist court issue a ruling that raises doubts about the institution of marriage," Bush said. The President's message was part of a concerted effort by the GOP to push the ruling onto the political agenda just in time for the election. The Boston Globe this morning reports: "In Pennsylvania, where Rick Santorum , a conservative Republican, is struggling to keep his Senate seat, the Pennsylvania Family Institute mailed fliers to potential voters, warning that 'homosexual legal activists in Pennsylvania and elsewhere will make good on their agenda to exploit rulings like New Jersey's to force homosexual marriages or marriage benefits on our commonwealth.'"

These comments are flat-out wrong (on many different levels) about the ruling that spawned them. At best, they suggest a fundamental lack of understanding about what the high court in New Jersey did and did not do. At worst, they represent a cynical and manipulative avoidance of the truth and import of the text of the ruling. The fact is that the New Jersey court over and over again endorsed the idea of marriage in language that could have come straight out of a GOP campaign ad.

Here is some language from the ruling: "We cannot escape the reality that the shared societal meaning of marriage -- passed down through the common law into our statutory law -- has always been the union of a man and a
woman. To alter that meaning would render a profound change in the public consciousness of a social institution of ancient origin. When such change is not compelled by a constitutional imperative, it must come about through civil dialogue and reasoned discourse, and the considered judgment of the people in whom we place ultimate trust in our republican form of government." Does that read like the work of "activist" judges undermining marriage to you? Of course not.

Here is another example from the majority ruling: "Before the Legislature has been given the opportunity to act, the dissenters are willing to substitute their judicial definition of marriage for the statutory definition, for the definition that has reigned for centuries, for the definition that is accepted in forty-nine states and in the vast majority of countries in the world. Although we do not know whether the Legislature will choose the option of a civil
union statute, the dissenters presume in advance that our legislators cannot give any reason to justify retaining the
definition of marriage solely for opposite sex couples. A proper respect for a coordinate branch of government counsels that we defer until it has spoken. Unlike our colleagues who are prepared immediately to overthrow the long established definition of marriage, we believe that our democratically elected representatives should be given a chance to address the issue under the constitutional mandate set forth in this opinion." Again, does that language tell you that this is a court wishing to "force" homosexual marriage? Of course not.

I understand that dividing voters, one against the other, through the use of cheap tricks like this is what politicians do. And I also understand that during campaign seasons truth and shame often are the first victims of public discourse. But Thursday's comments about Wednesday's rulings were really beyond the pale.

By Andrew Cohen |  October 27, 2006; 9:45 AM ET
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CORRECTION: understand that dividing voters, one against the other, through the use of cheap tricks like this is what REPUBLICANS do.

Posted by: SD Law Student | October 27, 2006 04:03 PM

Since Andrew does not believe there are activist judges, how can he come now and say that what these judges wrote was not activist. It is sort of like saying there is no God and He did not cause all the suffering in the world.

As I understand it courts traditionally act in two ways: 1) they can declare the marriage law of the State of New Jersey unconstitutional, null and void or 2) they can order the issuance of a marriage certificate to the same-gender plaintiffs -- I hate the phrase same-sex marriage, after all isn't that what marriage is all about.

What they apparently have done is find the law unconstitional, specified the remedy and directed the state to change the law. If telling a state legislature in very specific terms what the law must be is not an activist role, what is it?

As for the idea that this is anti-marriage, well it certainly is contrary to millennia of human understanding of the institution of marriage. Such a social change from my perspective should be handled by the People and the legislatures. When they have had the choice they have ALWAYS voted FOR the definition of marriage as one man and one woman, they have always voted against any attempts to change that definition. Only in states where the courts have ordered it have same-gender relationship legal institutions been enacted. If that does not suggest activism by the courts against the will of the people, I do not know what does. And in fact the NJSC acknowledges this but execuses themselves in the very line that Andrew sites as non-activist sounding: that such major social change should occur through civil dialogue and reasoned debate. Their excuse for short cutting such debate and dialogue is that this is a violation of the state constitution so eggregious that it can only last 180 more days. (One wonders what would require faster action? After all the most horrific violation of our federal constitution, racial seggregation, was resolved with "all deliberate speed," a period of about thirty years.)

What President Bush and the Republicans have done is appeal to the majority of Americans who agree on this issue, that is part of the political debate in our country and perfectly acceptable, far more acceptable than the actions of San Francisco's mayor in illegally distributing fradulant marriage certificates to same-gender couples. The Republicans have taken a clear stand with the majority of Americans on an issue that does divide us, the Democrats are in a cowardly crouch unwilling to take a stand lest it cost them politically. The Democratic position itself suggests the depth and force of the judicial activism exercised by the NJSC.

So despite the Washington Post's protestations otherwise, it also argues very strongly that people in Viriginia who oppose same-gender relationship legal institutions would be correct in voting for the marriage amendment. We have no idea what the Virginia state courts will look like after eight years of Democratic governors.

Posted by: Constitutionalist | October 27, 2006 05:31 PM

Constitutionalist says:

"What they apparently have done is find the law unconstitutional, specified the remedy and directed the state to change the law. If telling a state legislature in very specific terms what the law must be is not an activist role, what is it?"

What in fact the Court held was:

"We conclude that denying to committed same-sex couples the financial and social benefits and privileges given to their married heterosexual counterparts bears no substantial relationship to a legitimate governmental purpose. 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."

The Court left to the State the mechanism for discharging it's Constitutional duty:

The equal protection requirement of [the Constitution] leaves the Legislature with two apparent options. The Legislature could simply amend the marriage statutes to include same-sex couples, or it could create a separate statutory structure, such as a civil union, as Connecticut and Vermont have done."

Constitutionalist's argument that the Court would have been LESS activist if it had thrown out all marriage laws or judicially amended existing marriage laws to include same gender couples rather than leaving it to the legislature to determine the best way to extend equal rights to same gender couples is, well, odd.

Constitutionalist says:

"When they have had the choice they have ALWAYS voted FOR the definition of marriage as one man and one woman, they have always voted against any attempts to change that definition."

The Court did not require the Legislature to change the definition of marriage. That is the point of Andrew's post.

Posted by: MC | October 27, 2006 10:17 PM

Constitutionalist: "Only in states where the courts have ordered it have same-gender relationship legal institutions been enacted."

Wrong. At the insistence of no court, California and Connecticut have already created civil unions or the equivalent. Several other states, including New Jersey, have extended a less comprehensive set of rights to same-sex couples.

Constitutionalist: "As I understand it courts traditionally act in two ways: 1) they can declare the marriage law of the State of New Jersey unconstitutional, null and void or 2) they can order the issuance of a marriage certificate to the same-gender plaintiffs."

I suggest Constitutionalist take a course in "remedies." He even makes reference to Brown v. Board, which did not adopt the kind of simple-minded remedy he seems to think courts ought to be limited to. The equitable powers of courts have a long history.

The New Jersey Supreme Court has previously found that the state's mechanism for funding public schools violated the state constitution, and the court similarly deferred to the legislature to fix the problem because of its complexity.

How deferring to the state legislature and allowing it to choose between marriage or civil unions is possible "activist" is utterly unclear to me.

Constitutionalist should take his complaints to the lawyers who argued the case for the state. They apparently offered no rationale for the discrimination against same-sex couples other than preserving the traditional definition of marriage. The court accommodated that interest. If the state thought extending benefits to same-sex couples was a threat, it should have articulated a rationale for it in the litigation of the case.

Posted by: Steve | October 28, 2006 05:39 AM

If you really want to "defend" marriage I suggest you outlaw divorce, mandate shotgun weddings in the case of conception, and make adultery a capital offense.

Then try to square that with the idea of limited government intrusion in your personal "affairs".

Posted by: Error Flynn | October 28, 2006 09:18 AM

One frequently hears the claim that marriage has been long defined as between a man and a woman and therefore should not be changed. The majority in the NJSC makes this argument. There are two things wrong with this argument. One it is false. For most of history marriage has been between a man and MANY women. King Solomon had 700 wives. The second way in which this argument fails is that it uses bad logic. If simply by being practiced for many years could make an institution right, we would still have slavery. Furthermore, one of the primary duties of courts is to protect the right of the people as enshrined in the various constitutions even if protection of these rights is not popular. When courts struck down laws preventing people of different races from marrying, polls showed that 80% of the country were in favor of these unjust laws. To call courts which fulfill this basic role "activist," shows an ignorance about our system of justice that borders on criminal.

Posted by: lench | October 28, 2006 09:40 AM

Well done Steve and MC on refuting Constitutionalist's claims. Many of those who oppose the decision in this case have neither bothered to read the opinion nor the NJ State Constitution, which the court relied on to overturn the present law. Instead they seek merely to condemn "activist" judges, as if every single time a court protects the fundamental rights of a state's citizens they are guilty of activism. Only through distortion can they make an argument against the opinion.

Posted by: Xanthippas | October 28, 2006 09:41 AM

When MC says "The Court did not require the Legislature to change the definition of marriage. That is the point of Andrew's post." That is exactly what three of the Court's seven members required. For both MC and Steve, the only "choice" the Court gave the legislature was in naming the new same-gender legal relationship, either marriage or civil union. And what is the difference? Well that would be a question of Federalism and the ability to "test" the U.S. marriage protection act wouldn't it. How would a civil union apply, for example in Virginia? We know that under current Virginia law a marriage would not apply. So basically the Court left it to the legislature to be confrontational with the remaining 49 states.

Steve, yes the New Jersey Court did act similarly in the income tax cases, and I believe that was outside of the scope of their power and, get this, ACTIVIST!! For example, in precluded the possibility of special funding to make up the difference or placing a cap on the amount of money a school district could spend per student. And since when have Courts shied away from complexity? What could be more complex than Judge Green's break up and restructuring of the communications industry? One man a god to telephony.

Brown v. Board of education was unique, in that the civil rights violation was itself based on a an activist policy decision of the U.S. Supreme Court. But it also adhered to the then applicable options: 1) the U.S. Supreme Court struck down the Constitutional principle of seperate but equal, and used its power to order the integration of schools. So it struck down the seggregation laws, rendering them null and void. Then, through the District Courts, it later imposed a remedy, which was busing, as an administrative relief. That is busing was a directive to the executive school board not the legilatures. In fact, it was in Plessy v. Ferguson that comes closer to what the NJSC did here, which is dictate the type of legislation, but then the USSC did not REQUIRE states or the Congress to enact such seggregation laws.

My question is what happens in 180 days if the legislature just refuses to act. Suppose for example that the opposition filibuster the law in the NJ senate (assuming that is possible)? What if it takes 181 days? 200 days? 1000 days? Why not order them to meet in special session before election day?

What happens if the law omits a single right of marriage in the civil union legislation? What happens if the law uses the name "Same-Gender Marriage" to differentiate it from other marriage types or the state passes two laws, one for same-gender male marriages and another for same-gender female marriages? There actually would be grounds for this as same-gender female relationships can independently -- without adoption -- result in children and we have seen in California some truly interesting cases and decisions on parentage and parental responsibility in such situations. (For example, if one partner in a lesbian relationship gives birth to a child as the result of an extra-marital affair would the other lesbian partner be the presumed parent the way a husband would be in a mixed gender marriage?)

The point is that this is not just a cut and dry change of the laws nor is it just a civil rights issue. The cuts to the quick of 5000 years of human social structure. (By the way did the NJSC remember to tell the legislature to change the laws of divorce as well? Remember that the Canadian Supreme Court forgot that little out clause and as a result, those same-gender married couples were stuck for life! or until the Court changed that law to give them an out.)

As far as my taking the case to the lawyers who argued the case for the state, that would be up to the People of New Jersey who put the current administration in place. It seems to me that they failed in their basic legal duties to aggressively argue the case, but the legal history is filled with such collusion to achieve a desired outcome. I believe there are rules of jurisprudence that courts may invoke to consider such issues, for example, the Court might have considered the NY State Court of Appeals decision, so the weight is not completely on those lawyers. Of course, I am sure that in that case Andrew would argue that Court was activist.

BTW, just as an aside, courts always put in nice sound bites that put pretty packaging around their decisions, like the ones quoted above by MC and Steve and in Andrew's column. Let us focus on what the Court actually did, not what they would have us believe they did.

Posted by: Constitutionalist | October 28, 2006 10:07 AM

By directing the legislature to 'come up with something that we [the court] see as marriage or the exact same thing', the court is activist, and cowardly. If they want to force gay marriage, they should do it, if not, they should have stayed out of it.

What, exactly, would be an equivalent? and who will it affect? Will churches in New Jersey be required to offer spousal benefits to gay spouses in NJ? What about gay federal employees? Does the NJ court suppose they can tell the federal government to give gay spouses the same benefits they give (what was formerly known as) regular spouses? What about NJ residents who work in PA? Can NJ force PA employers to provide spousal benefits?

Activist and cowardly, the court demands the legislature to 'come up with something' within 180 days. I wonder if one judge (it was a one person majority) should be able to push around the legislative body like that.

Posted by: Kamdog | October 28, 2006 11:02 AM

As I understand it the three dissenting judges were Republican appointees. They advocated ruling in favor of gay marriage, while the majority sent the matter to the legislature to decide how and to what end same sex partners can be treated.
So who are the "activist" judges here? Had one of the majority ruled with the minority, would we still hear about liberal judges?

Posted by: mike l | October 28, 2006 11:34 AM

Constitutionalist strikes back (!) with this:

"When MC says "The Court did not require the Legislature to change the definition of marriage. That is the point of Andrew's post." That is exactly what three of the Court's seven members required."

Constitutionalist, three members do not constitute a majority on a seven member court and their views do not represent the opinion of the Court. The Court did not require the Legislature to change the definition of marriage.

Constitutionalist writes further:

"For both MC and Steve, the only "choice" the Court gave the legislature was in naming the new same-gender legal relationship, either marriage or civil union."

Actually, no. The Court said: "or it could create a separate statutory structure, such as a civil union, as Connecticut and Vermont have done." Note the words "such as."

I won't belabor this any further than this final quote from Constitutionalist:

"BTW, just as an aside, courts always put in nice sound bites that put pretty packaging around their decisions, like the ones quoted above by MC and Steve and in Andrew's column. Let us focus on what the Court actually did, not what they would have us believe they did. "

Actually, my first quote from the opinion was the holding of the Court. You can tell this by their use of the word "hold."


Posted by: MC | October 28, 2006 01:24 PM

The real judicial activism in NJ occurred years ago when its courts interpreted the NJ Constitution to include the concept of "equal protection" although those two words are not found therein, even though the NJ Constitution had been rewritten in 1947, many decades after the United States Constitution was amended to include that phrase.

Posted by: Gene | October 28, 2006 03:49 PM

The holding is a finding of fact and law. The action is what the Court orders. That holding is part of a long section puffed up with nice fluffy caring words and political appeals to both sides.

The Court acted by ORDERING "consitutional relief":

"The constitutional relief that we give to plaintiffs cannot
be effectuated immediately or by this Court alone. The implementation of this constitutional mandate will require the cooperation of the Legislature. 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 statutes or enact an appropriate
statutory structure within 180 days of the date of this
decision.
"For the reasons explained, we affirm in part and modify in part
the judgment of the Appellate Division."

For all the nice sounding words and apearance of "cooperation" in enacting this constitutional requirement, the key word is MUST as in "the Legislature must
either amend the marriage statutes or enact an appropriate
statutory structure within 180 days of the date of this
decision."

And before jumping in to say the legislature has any choice consider this:
1) New Jersey already has a Domestic Partner Act which the NJSC found ("held") did not confer equality, even though it addresses most of the issues of inequality and slights to their "dignity" the plaintiffs site in their original complaint. (Note the complaint was amended after the enactment of the Domestic Partner Act and the Court based its decision on the amended complaint.)

2) The Court identified specific requirements, 10 inequalities and additionally identified specific rights in disolution of a union that must be included in the act.

3) In the decision the Court (all seven Justices) heavily brandishes a threat repeatedly that a new "civil union" structure would be subject to review. And with only one Justice need to move the decision from "civil union" to marriage, there is a sword hanging over any law the legislature passes, with implied extreme prejudice against any hint of inequality.

So NO there really is no legislative choice offered by the NJSC. This is at heart a directive to pass a specific bill with specific rights, by, as noted by another above, a cowardly Court that wishes to wash its hands of responsibility.

Finally, and just as another by the way, to highlight the majority's duplicity, consider the final statement that the Court "affirm in part and modify in part the decision of the Appellate Division." It did no such thing. In fact it all but completely overturned the decision of the Appellate Division agreeing only that marriage is not the applicable remedy -- YET.

This entire decision, which I have read, is filled with nimble judicial phrases and leaps of logic and lovely appeals to "can't we all just get along" and fluffy words used to mask radical changes. It is almost in its entirety a political tract and a lie.


Posted by: Constitutionalist | October 28, 2006 04:12 PM

This business about activist courts is stupid. I guess if courts never decided anything, then they would be truly non-activist, as they would be taking no action whatsoever. The term "activist" as applied to courts is a tautology, full of sound and fury, signifying absolutely nothing. So stop it already.

And while we're at it, people, everybody mind their own business, as soon as possible. The Founding Fathers thoughtfully created the separation of church and state precisely to avoid the kinds of no-win social clashes that pollute the political landscape at this time in history. The Founding Fathers knew first hand that religion and politics are a deadly and corrupt combination. As a result of the force-feeding of fundamentalist Christianity to the nation, the sale of books on atheism is currently on the rise. It looks like we're being pushed toward a resurgence of rationalism, as the never-ending fight between people who believe in different, invisible, imaginary beings is a real turn-off to sensible and compassionate people everywhere. If the Christians in power were even remotely Christ-like, that might be at least somewhat tolerable. But they're not. Not even close.

We're sick of people minding each other's personal business, while Halliburton drains the national treasury, and people's children are being slaughtered in the name of God and this "Christian" nation. WWJD? If there were a Jesus, I think he would rather see two guys in New Jersey joined in a loving union, than see the creeps in Washington slaughter innocents in His name. It would be nice if we could all focus on a real issue for a change.

Posted by: attorneyofrecord | October 28, 2006 05:06 PM

None of this has anything to do with "activist judges", that's just an easy way to demonize the messenger.

What is really happening here is that all of these state constitutions and the United States Constitution say that we are ALL equal...and the Christianist extremists don't like that, so they want to change all of these constitutions to say that only SOME of us are equal -- with free rein to discriminate against those not included in equality.

If any rights, benefits, and responsibilities are conferred by the state (i.e. governmental body at any level), then they should be conferred equally to all or not conferred to any. Period.

Spin it all you want, but that's the bottom line -- we are all equal.

Those who don't like our inherent equality as equal full first-class citizens of the United States are seeking to destroy that equality by allowing a popular majority to "vote" for oppression of an unpopular minority. If we put everyone's civil rights to a popular vote, we would today have legalized slavery, women as property without voting rights, and a federal ban on alcohol. Oh wait, those were all bad ideas that seemed so very "perfect" when they were the law of the land yet were scrubbed when people began to recognize the full civil rights and individual liberties of ALL Americans.

Indeed, for those whose panties are in a wad over the New Jersey ruling, consider this: If straight AND gay couples are allowed the right to marry, then there would be no need for "domestic partnerships" of any kind for any one. You're either married or you're not. Divorce could then be outlawed (in our constitutions), nixing the divorce rate instantly. Marriage, now saved, would be "protected" from promiscuity & adultery. Then the way would be paved for rightwing extremists to stigmatize unwed mothers again, which of course will reduce unwanted pregnancies and thereby reduce abortions. During even-numbered years, they could break out new wedges for elections...like constitutional amendments against unwed cohabitation and snatch up people's children born out of wedlock, which naturally the Christianist extremists would happily adopt, just like they are eagerly adopting all of the kids now in foster care around the country. ;-)

Posted by: Patti in Dallas | October 28, 2006 06:59 PM

If they ever had a "Republican dictionary" - I imagine there would be two seperate entries for "judges":

"Judges" - Definition: Judges that agree with your personal point of view.

"Activist Judges" - Definition: Judges who do not agree with your personal point of view.

It seems "Constitutionalist" (what a laughably pretentious name)... uses the Republicans weapon of choice in his discourse... their m.o. seems to boil down to little more than ... "if you can't blind them with brillainace, baffle them with bulls**t".

His pseudo-intellectualized babble seems to work well enough for the uneducated masses - but America is growing wise to these nonsensical diatribes and moving on.

Fortunately for us all, people with this sad mindset will be left behind.

Posted by: Chris Sullivan | October 29, 2006 02:59 PM

Interesting post. My comment is directed at attorneyofrecord. Certainly much of what you say is true however, I fail to understand your hostility against the existence of Jesus or the belief in God. If anyone throughout history understood the danger of religious extremism, or the threat posed by corrupt religion in conjunction with corrupt government, it would have been Jesus. Jesus the Christ was put to death by people with the exact same mindset as those who now claim his authority. People who branded him a blasphemer and a heretic, people whose financial power, he questioned. Those people petitioned the government to kill him based on their own misguided understanding of religion. Again, seeing clearly that Jesus is indeed a historical figure who is referenced in secular documentation, and that his very life proves many of your points, your questioning of his existence is highly puzzling. As a supposedly rational individual your reference to God as "imaginary" is equally puzzling. Many people throughout the world believe in the existence of God due to undeniable personal experiences. In contrast to your opinions, a rational individual having the experiences I've described has no choice but to either believe in God or question his own sanity. Without having such experiences yourself it is impossible to definitively state the non existence of God.

Posted by: dewayne | October 31, 2006 11:16 AM

Well, if Jesus exists, it would be nice if he would come down and smite all these people doing terrible things in his name. I'm not hostile toward Jesus, any more than I'm hostile toward toward Buddha, Mohammed, Ganesha, Allah, Isis, Zeus, Apollo, et al. Deities in general having been missing in action for two millenia, at least. I just don't think Christian mythology is any more or less persuasive than any other mythology, and it is abolutely insane that anybody is arguing about what Jesus would want the United States government to be or do in the 21st Century. It's crazy. Would anybody in this country take anybody seriously who said, What Would Thor Do? or This is not as Lord Shiva would have it? The infantile need for a parental figure or entity apparently never leaves us, but I think it would be a really great thing for this country if everyone would just grow up.

Is there a power greater than ourselves out there? Could be. Do we know what it is? Nope. If such a power does exist, what role does it play in our lives, if any? I guess we'll find out, if we're lucky, when we get to the end of the journey we're on.

Posted by: attorneyofrecord | November 1, 2006 06:25 PM

In reply to Kamdog's statement: "If they want to force gay marriage, they should do it, if not, they should have stayed out of it."

Unlike the legislative and executive branches, courts generally cannot duck issues that are properly presented to them by the parties bringing the lawsuits. Legislators can choose not to pass bills or can not even put bills on the agenda to vote on if the issue is something they do not want to deal with. The executive branch may have to deal with an undesireable issue if the legislature passes a bill, but the executive branch can also not propose bills on an issue or can delay implementing laws it does not agree with.

Courts, however, are presented with cases by real petitioners and the issues raised by those cases usually have to be resolved by the court one way or the other.

Too many people (but not all) blame "activist" judges just for doing their jobs of making the hard calls in cases presented to them. If more legislators and executive branch persons (urged on by the citizens who elect them) made more policy choices based on what is actually in the various constitutions, courts would probably have fewer cases in which hard policy decisions have to be made.

Posted by: woodspr | November 2, 2006 04:35 PM

What I don't understand is how any politician can accuse a court of being activist for saying that all people should have the same contractual rights. Thats all marriage is or should be in the government, a contractual agreement. The government isn't (or shouldn't be) in the job of sanctifying anything.

Equal protection isn't just something that's written in our constitutions, it's THE American value, it's high time that people across the country remember that.

Posted by: UNLLawStudent | November 3, 2006 10:49 AM

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