Making It Up

The New Jersey Supreme Court has decreed that the equal protection clause of New Jersey’s Constitution requires homosexual relationships to be treated, in all legal respects, on a par with marriages. You can read the Court’s decision here. It is quite remarkable; by a 4-3 vote, the Court held that the right to homosexual marriage is not a “fundamental right” that is “deeply rooted in the traditions, history, and conscience of the people of this State.” I should think not. Yet, the three dissenters argued that the majority didn’t go far enough, and that homosexuals have a constitutional right to marriage.
The Court’s majority held that, while homosexuals are not entitled to marriage per se, their relationships must be treated, in all legal respects, on a par with heterosexual marriage. So the difference is rather a fine one. The Court acknowledged that New Jersey’s legislature has recently adopted a Domestic Partnership Act, but held that the statute did not go far enough:

Although under the Domestic Partnership Act same-sex couples are provided with a number of important rights, they still are denied many benefits and privileges accorded to their similarly situated heterosexual counterparts. Thus, the Act has failed to bridge the inequality gap between committed same-sex couples and married opposite-sex couples.

This is consistent with the modern view seemingly held by many judges, under which a statute is analogous to a rough draft of a student’s essay that is turned in to a teacher, perhaps to return with an instruction to do better next time.
What is left to the legislature, apparently, is the discretion to decide whether the name “marriage” will be appended to the fully equal scheme of homosexual union:

The name to be given to the statutory scheme that provides full rights and benefits to samesex couples, whether marriage or some other term, is a matter left to the democratic process.

Well, that’s a relief, I guess. We wouldn’t want the court to impinge on the democratic process. As the court itself acknowledged, it has no mandate to resolve issues of social policy:

To be clear, it is not our role to suggest whether the Legislature should either amend the marriage statutes to include same-sex couples or enact a civil union scheme. Our role here is limited to constitutional adjudication, and therefore we must steer clear of the swift and treacherous currents of social policy when we have no constitutional compass with which to navigate.

A better satirist than me could have some fun with such passages. All I can say is, those who believe that fundamental decisions of social, economic and security policy should be made democratically, not by judicial fiat, are losing the battle. If they stay home on November 7, that trend can only accelerate.
PAUL adds: Ed Whelan has more on the decision at NRO’s Bench Memos.


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