Thursday, October 26, 2006

New Jersey Judicial Activism is Still Wrong

Most people accept gay civil unions, but not marriages. The New Jersey Supreme Court agreed with the majority of Americans on that point yesterday.

But most people oppose judicial activism. We want our legislation made by the legislature, not the court. The New Jersey court screwed that up. Worse, they did so right before the election. In 2004, when the Massachusetts high court mandated gay marriage, they threw the national election to the Republicans.

If the Republicans don't manage to get a bounce out of this latest example of liberal overreaching, it will only be because it gets buried under the mountain of GOP scandal.

Regardless of what you think of the merits of this issue, I hope everyone can see that when the court mandates the conclusion that the legislature must reach, it undermines democracy.


Alan said...

In fact, the majority told the legislature only that they had to do something to afford equal protection to same-sex couples. They left it up to the legislature to determine what that "something" would be.

For years now we've been hearing about "activist" judges. (The definition of which seems to be any judge who makes a decision someone doesn't agree with.) Now the NJ Supreme Court leaves it up to the legislature and they're still activist? Heh. A little consistency please. Would you think the court should stand by and do nothing if this case had been about interracial marriages? Is the proper role of the courts really to hang out and do and say nothing to the legislative and executive branches? Not hardly. Sometimes a check and balance system means that one branch tells the other branches NOT to do something, sometimes it means that one branch requires the other branches to DO something.

As the decision states, " 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. "

Thus it is the Equal Protection clause that requires the Legislature to do something, and the court is simply pointing that out.

Count yourself lucky, the 4-3 decision wasn't really 4-3. The minority opinion was a "concurring dissenting opinion." In other words, they felt the majority didn't go far enough! Among the minority was Justice Long, a conservative, Republican appointee.

SPorcupine said...

All the great federal decisions on school integration and all the great state decisions on school funding rest on the courts saying that a constitutional requirement was unmet.

Of those decisions, the ones that last and work are argued from the constitutional text, not the judges' wished. Alan's statement-- "Thus it is the Equal Protection clause that requires the Legislature to do something, and the court is simply pointing that out"--is the understanding that leads to effective change.

Mark Smith said...

A point of information.

The court split 4-3.

The majority 4 wanted to give the legislature a chance to amend the law.

The minority 3 wanted to declare immediately that gay couples have the right to marry, using the term marriage.

So, in terms of providing equal privileges it was unanimous. The only split was over how to accomplish it and what to call it.

Mark Smith said...

Whoops, sorry Alan. I hadn't read your last paragraph when I wrote that.

Gruntled - most of the civil rights victories of the last century were started in the courts. It wasn't until about 1980 that the ban on Ray Charles performing in Georgia was lifted by the legislature - he had been banned for refusing to perform before segregated audiences.

Sometimes, the court must act where the legislature fails. It doesn't undermine democracy - instead it prevents tyranny of the majority.

Alan said...

Slight amendment... Actually in the minority, not only was Justice Long a Republican (Christine Todd Whitman) appointee, but so were Justices Zazzali and Poritz. I guess the Republicans can get "activist" too. :)

halifax said...

It is a partial truth that activism is in the eyes of the beholder. However, American liberals should recall that during the first few decades of the twentieth century they were the ones screaming about judicial usurpation. And, with that in mind, I'm quite certain that there are a few members of the current Supreme Court who read the commerce clause and understand the right to contract in a rather different way than the post-war Court. My guess is that within a decade we will be witnesses to the rather humorous spectacle of American liberal jurisprudence being hoist by its own petard.

And where are the good old obstructionists in this case anyway? I know that this is neither gruntled nor centrist, but why hasn't anyone suggested that NJ just eliminate state recognition of marriage? This would, after all, meet the Court's requirement.

wha said...

One of the law professors here at UK has just written an interesting article examining the Rehnquist court activism:

"while all of the justices used
their power of judicial review proactively and in ideological predictable
ways, the judicial “conservatives” sitting on the Rehnquist Natural Court
were much more likely than their “liberal” counterparts to invalidate
federal legislation and overturn precedent, while the “liberals” were more
likely to invalidate state laws."

Mark Smith said...


Yeah, but if you read Alan's note - this isn't a LIBERAL court. The GOP appointees were the ones pushing hardest for a liberal position.

Alan said...

I'd argue, Mark, that the Republican appointees were actually pushing for a truly conservative (vs. phony or "neo-conservative") opinion -- ie. an "originalist" reading of the Equal Protection clause of the NJ constitution to apply it to *all* people (shocking) and a dislike of "separate but equal" civil unions.

Mark Smith said...


I'll buy that. Having skimmed the opinion and followed some of their previous decisions, I think you're right.

Chairm said...

Republican, let alone a judge appointed by a Republican, in New Jersey does not necessarily translate to conservative, judicially nor ideologically.

This decision wrote a new protected class into the text of the state constitution. It did so on the basis of the nonexistent equality protection clause.

And that its interpretation of that nonexistent clause should not be constrained by the US Supreme Court's interpretation of the actual equal protection clause in the US Constitution.

Sure, they went to great lengths to use lower law to write changes the state's highest law, but that's acceptable since they end-gained rather than did their job as judges.

In effect, they acted not as a supreme court but as a supreme legislature.

As for interracial marriage, at least the majority recognized that Loving does not provide an appropriate analogy to the man-woman criterion of marital status.

This decision left nothing of substance to the elected lawmakers.

It is bad for self-governance. It should be defied by the legislative and executive branches, and by The People, for no other reason than the judges over-reached by far.

Alan said...

Its an interesting position to take, Chairm.

In order for your argument to hold any water, you have to argue that, in fact, the NJ constitution does not provide equal protection for all its citizens. Not only that, but you must believe that such protection is not only unnecessary, but actually wrong.

Chairm said...


Equal protection does not mean that equal participation of both sexes is an unjust requirement for marital status.

The equal protection clauses in other state constitutions have not produced this result.

This court presumed for itself a fig leaf, called it equal protection, and then proceeded toward a policy decision that was not tethered to equal protection jurisprudence.