New Jersey Marriage Decision
Jonathan Rowe on Oct 25th 2006
From what I understand of the decision, I can’t complain. Keep in mind New Jersey has an already existing statute which grants same-sex domestic partner benefits. This statute may grant many of the rights to same-sex couples that married couples have; but it doesn’t grant everything. I read this decision as stating either grant marriage, or grant all of the rights, every one, so that the arrangement would be marriage in all but name only. And that’s fine. Government need not be involved in granting the “name” marriage to any couple. But even if government does grant the name to heterosexual but not homosexual couples, as long as government grants same-sex couples every single right that married couples have, I think that’s close enough to satisfy a meaningful concept of equality.
On originalist grounds, I see this decision as clearly growing out of the “seeds” of equality that the Declaration of Independence and founding principles first planted. It’s certainly true that the Founders or the population at large didn’t intend for this. However, when the populace at large heard that very broad and general phrase, “all men are created equal,” arguably most people first thought: All white propertied Protestant males…a sentiment while which today would be unthinkable, was still remarkably egalitarian coming out of the throne and alter era of divine right of Kings and Aristocracy.
Like it or not, the twin pillars of classical liberalism — liberty and equality — have been consistently expanding since our nation was first founded in 1776, just as the Founders intended. As Jefferson put it:
“[L]aws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the same coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors.”
Now, one can argue that they didn’t intend Constitutional rights to so evolve, that the evolving should be done via statutes and the common law. But liberal democracy is predicated on the notion that individual rights — liberty and equality rights — exist prior to majority rule. So it makes sense that a countermajoritarian institution like the courts would get the final say on individual rights. And, given that we inherited a common law system where judges entirely created substantive norms (damn important ones like contract, property and tort) in an evolving body of law, it makes sense that judges today (as they historically have) often play very prominent roles in substantive rule making and rights recognition.
My biggest concern with gay marriage or its equivalent by judicial decree, on originalist and separation of powers grounds, is that while judicial nullification clearly exists within the original meaning of the “judicial power,” something else may be going on here. Judicial nullification is not the same as when judges exercise a quasi command and control power ordering other branches of government to take affirmative action. When judges simply strike down laws in the name of liberty and do nothing else, they are acting entirely consistent with the way our Constitutional Republic was originally structured. However, when judges exercise a command and control like power, as they often do in the name of equality, such may not be as defensible on originalist grounds. (I could be wrong; if someone wants to point me to the scholarship, I’d greatly appreciate it). Nullifying a statute or act of government on equality grounds also would be consistent with the original meaning of the judicial power, as well as the very powerful notion of substantive equality under the law, which is foundational to liberal democracy.
Whether gay marriage will come to the US universally in every state, and how it will finally occur, I can’t entirely answer. I hope we get there and think we eventually will. Right now, the gradual state-by-state approach seems the most judicious.
A Supreme Court decision finally resolving the issue? In my opinion, it would be wisest for such a decision to occur after a vast majority of states have already recognized gay marriage. So far, we have at least one, perhaps two out of fifty. We are a long way away from gay marriage at the national level, in my opinion.
Filed in The Bench, The Boudoir, The Bureau
Here’s a question:
If we accept that the courts have only the power to nullify laws, and not the power to order solutions, then would the appropriate decision in New Jersey have been to strike the entire law and declare that no one is married?
Deciding that some people must, at some future time, have a status something like mariage, is one thing. Divorcing all people who are currently married is quite another, and it seems clear to me which one is more disruptive.
There is no law barring same-sex marriage in NJ so there’s nothing for the courts to nullify in that regard.
What the NJ Court nullifed was the gender-specific language in NJ marriage laws. In actuality the court deferred quite heavily to the legislature. If the court had simply ruled that gender-specific language of the marriage laws was unconstitutional and stopped there, there would be gay marriage in NJ now, not marriage or something the same as it in 180 days. You may suggest that that is precisely what the court should have done (you’d get no argument from me), but if anything the court didn’t overstep it’s bounds but rather relinquished power to the legislatures by allowing them time to decide how to fix the unconsitutional language rather than simply declaring it void.
A couple brief thoughts:
Instapundit linked to this comment by a Dale Carpenter which I liked and is relevant:
New Jersey ran into trouble because, having started down the path to full equality for gay individuals and couples through a variety of state statutes and judicial decisions, the state could not give any good reason why it should continue to differentiate. For example, the court noted, the state has adopted a domestic partnership system that gives gay couples a list of rights also given to married couples. But yet the domestic partnership system does not extend other rights of married couples to these same-sex couples. What’s the basis for granting a select list of the rights but not the others? . . .
The whole case, then, shows how unstable a middle ground can become in the hands of an aggressive court. The slope on that middle ground seems much more slippery for courts, which demand what they regard as principled reasons for any distinction, than it is for legislatures, which may refuse to budge for no reason other than that the votes aren’t there to do more or because of simple fiat.
Second, I think what Rowe wrote here:
However, when judges exercise a command and control like power, as they often do in the name of equality, such may not be as defensible on originalist grounds.
is very true. I don’t have the legal scholarship to back this up, just the general idea, to borrow a quote I’ve used before, that “if we want to establish a complete plain we have to blast the mountains away and fill the valleys; equality thus presupposes the continuous intervention of force which, as a principle, is opposed to freedom.”
[...] Positive Liberty: New Jersey Marriage Decision [...]
[...] Positive Liberty: New Jersey Marriage Decision [...]
Words have an enormous power. What do you think would happen if New Jersey simply decided to let the applicants choose what they call their legal agreement by checking a box on the application and be done with the issue? Some people will want to call it Civil Unions, in respect to their orientation, and some people might think that marriage has too much of a religious connotation to it. Others will settle for no less than the word marriage, and I see no good reason to deny them that. I killer on death row can get married, but your florist can’t? It’s time for people to wake up and see the hypocracy for what it is. The only people that would have a problem with the choice being on the application would be those who wish to deny gays the right to call their union equal, and these are not people who should be leading America in the 21st century!
Scof said:
I don’t think that analogy is the right one. When I think of “all men are created equal”, I take that to mean that we all have the same inherent rights to enable us to pursue our lives as we see fit. It’s not an endorsement of the idea that everyone should end up absolutely the same as everyone else, but rather that we all get to start from the same place. Rather than leveling mountains and filling in valleys, we all have the right to try to get to the top of the mountain, or to try to make a living in the valley, or to squat on a plain and declare that just fine indeed.
I also would disagree that force is necessarily opposed to freedom. Like anything else, force can be used for a variety of purposes and to a variety of effects, sometimes supporting and enhancing freedom and sometimes crushing and opposing it. Inevitably, some people will use their liberty or freedom to take away the liberty or freedom of some other people, and thus at least a continuous preparedness to use force — for defense if nothing else — can be considered an absolutely essential safeguard rather than an inevitable enemy.
The Democratic-appointed justices bequeathed a version of Plessy v. Ferguson’s “separate, but equal,” while the Republican-appointed minority argued for a Brown v. Board of Education’s “full equality.” So “separate, but equal” rears its ugly head once again. Was that decision ever satisfactory? I think not. African-Americans assure us not. Yet double-meanings and double-standards seem to be an American institution, and so the Framers’ desire “for a more perfect union” will be postponed further.
The real question is, now that this is back in the laps of the legislature, are they going to choose to call it marriage, or civil union. From what I understand, the public opinion in NJ doesn’t exactly favor one side over the other.