Thursday, October 26, 2006

New Jersey Apes King Solomon

Well, New Jersey has spoken. And it has clearly put my own home states of California and New York to shame on the issue (although the last word in California has yet to be heard, so there is still hope).

That's the good news.

The bad news is that the New Jersey Supreme Court put the legendary King Solomon to shame with yesterday's refusal-to-make-a-decision decision in Lewis & Winslow v. Harris on the question of gay marriage. Not.

For those who genuinely don't remember (!) the legend of King Solomon set forth in 1 Kings 3:16-28 here's the recap in a nutshell: he had two women who appeared before him with a baby, claiming that in the night the other woman had swapped her dead baby for the living child. Unable to decide, he recommended that the baby be divided in two and called for a sword to accomplish the task. It was then that purportedly God gave Solomon a clue, speaking through the true mother when she pleaded that the baby be given to the other woman and live rather than be divided and killed, whereas the false mother was willing to see the child die rather than share it.

This biblical story is heralded as example of King Solomon's wisdom when it is apparent on his face that King Solomon wasn't all that wise, since he needed God to spell it out for him.

So too, it seems, with the New Jersey Supreme Court. Except that their God is not The God (in Christian terms, anyhow) but the New Jersey Legislature.

Yesterday's decision is the pinnacle of the art of punt. While rejecting the substantive due process argument that denial of equal rights in the fundamental right of marriage abridged the constitutional liberty interest of gay and lesbian couples with its finding that a liberty interest did not exist solely because of the second prong of the test (there was not a tradition of gay marriage "deeply rooted in the traditions, history and conscience" of either New Jersey or America, despite the liberty interest in marriage being clearly identified and of constitutional dimension) the Court nonetheless found unanimously that the New Jersey Constitution's equal protection clause was violated by any scheme that limited or made more difficult the ability of gays and lesbians to access any legal right s that heterosexual couples could access through legal marriage.

Thus, while the reasoning was not pure, it ultimately got to the right place: New Jersey cannot deny gay and lesbian couples any of the legal benefits of marriage.

Except for one tiny detail: the right to call it a marriage.

I am being facetious when I call it "tiny." It is not and, indeed, the magnitude of the label has probably never been made as stark in discourse as it was in yesterday's decision. The Court majority was careful to discuss at length the cultural significance of the word "marriage", and acknowledge that the fight for the label is as much a religious and cultural one as much as, if not more than, a legal one.

Therein lies the problem.

While I have real difficulty with those who don't understand the jurisprudential differences between the issues raised by the New Jersey gay marriage decision and the idea of "separate but equal" (Brown v. Board of Education would likely have been a very different case, under American constitutional jurisprudence, had the Court been actually been confronted with "separate" segregated schools that were truly equal, but such a thing did not exist), nonetheless the larger problem remains:

New Jersey has consigned the rights of gay and lesbian families to the whim of politics, by sending the matter to the New Jersey Legislature for the next six months. Deliberately.

Such a thing -- telling New Jersey politicians that they have 180 days to come up with some law to give gay people the functional equivalent of marriage without actually commanding that they be given marriage, when one is talking about constitutional rights of a numerical minority, is unheard of. Indeed, had the question of the right to marry presented by Loving v. Virginia been sent to the Legislature in Virginia at the time, Mr. and Mrs. Loving would still be convcted criminals.

The part of yesterday's majority opinion that leaves me the most worried about the future of this issue in New Jersey and elsewhere, is this:

We do not know how the Legislature will proceed to remedy the equal protection disparities that currently exist in our statutory scheme. The Legislature is free to break from historical traditions that have limited the definition of marriage to heterosexual couples or to frame a civil union style structure, as Vermont and Connecticut have done. Whatever path the Legislature takes, our starting point must be to presume the constitutionality of legislation. . .

[W]e will not speculate that identical schemes called by different names would create a distinction that would offend Article I, Paragraph 1. We will not presume that a difference in name alone is of constitutional magnitude.

In other words, as the Court majority itself, noted: "What's in a name?"

I believe the concurring and dissenting opinion authored by New Jersey Chief Justice Poritz, in which she on the day of her retirement gently tears her colleagues a new you-know-what for failing in their duty to protect the constitutional right to marriage for gay and lesbian people, answers the question nicely:

Perhaps the political branches will right the wrong presented in this case by amending the marriage statutes to recognize fully the fundamental right of same-sex couples to marry. That possibility does not relieve this Court of the responsibility to decide constitutional questions, no matter how difficult. Deference to the Legislature is a cardinal principle of our law except in those cases requiring the Court to claim for the people the values found in our Constitution. Alexander Hamilton, in his essay Judges as Guardians of the Constitution, the Federalist No. 78. . .spoke of the role of courts and judicial independence. He argued that "the courts of justice . . .are the bulwarks of a limited Constitution against legislative encroachments" because he believed that the judicial branch was the only branch capable of opposing "oppressions [by the elected branches] of the minor party in the community" . . .Our role is to stand as a bulwark of a constitution that limits the power of government to oppress minorities."

(Emphasis added, internal citations omitted.)


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