The court spent a great deal of time noting the laudable efforts of the New Jersey Legislature to ensure gays would have equal rights, using those efforts as justification for their decision. Other state legislatures may now think twice about gay rights measures for fear such actions may encourage their own courts to go further than the legislatures are willing to go.

I agree with this, and I believe Eugene Volokh makes a similar point today.

More generally, CharleyCarp noted elsewhere (unfogged IIRC) that it's Loving v. Virginia that should control here, such that any distinctions between it and gay marriage are ultimately untenable to thinking people.

BTW, I didn't realize you posted so often here (I generally assumed you posted as often as you do at ObWi). I will endeavor to visit more frequently.

Yes, I saw that after I posted this. Nice to know at least one lawyer agrees with me.

No, this is my site, so I try to post here regularly.

I wish that state legislators who hesitate to recognize the basic human rights of their constituents would find themselves soon out of office. It will be sorry indeed if some of them use the specter of gay marriage as an excuse to avoid eliminating overt discrimination in the workplace, but to people who need an excuse, this is probably as good as any other.

Andrew I'm very sympathetic to the wish that these matters could get resolved in legislatures rather than courts. You can be sure that anyone suffering legalized (but illegal) discrimination agrees with you as well. The question is how long a victim of discrimination has to wait until the people representing him/her, and their fellows in the legislature, are going to see their way clear to recognizing their rights.

Seriously, I think that the result in Loving v. Virginia would not have been acheived in 1,000 years in some states, if we're waiting for legislative action. It's gross that some cultures coutenance illegal discrimination of that sort, but they do, and wishing they didn't isn't going to make them stop.

Shorter: It's illegal. Why should the victims of this crime have to wait for the perpetrators to voluntarily give in, rather than 'calling the cops'?

Great post Andrew, and it's clear that the trend in favor of granting gay couples the legal rights of marriage is inexorable.

I do have to object to your comment that the courts "stepped in" and made this decision. The court did not choose to interfere, but rather citizens of NJ brought a suit against the state, and, assuming the court has jurisdiction (which it does), the court has to issue a ruling one way or another. This court decided in their favor based on their reading of the constitution of the state. As a matter of law, they cannot consider "the will of the majority" or whether it's somehow "better" for society if the court doesn't make these decisions or even whether their actions will ultimately result in, say, a constitutional amendment to ban the right they believe the current constitution grants.

It's just not how the judicial branch works (nor should it). You're certainly free to disagree (although I don't think you do) with their constitutional reading/legal opinion, but the court acted entirely properly here, as did the people that brought suit. This is true in nearly all cases of supposed "judicial activism". The courts merely decide the case in front of them based on their reading of the existing laws. If people don't like that the law allows for behavior the court says it does, they can re-write the laws . Pretty good system of checks and balances, if you ask me.

Whether it was the "most productive" way to get gay marriage rights is a different issue, I just object to the idea that courts somehow should be acting differently than they are. It (somewhat) sounds like you believe courts are trolling for cases (that would be the job of lawyers). And, as the Loving V. Virginia precedent shows, "court decisions" on controversial issues are sometimes the best or only way to keep the majority from tyrannizing the minority forever.

I'm not sure whether you like him or not, and this post clearly isn't targeted at you, but I think Glenn Greenwald wrote something great on the subject.

Loving involved a highly suspect class, race, and interpretation of the federal constitution. By its express terms, Lewis is restricted to a narrow and novel interpretation of the NJ Constitution and legislation. Legally, the cases have little in common.

ck, I think the dissent in Lewis is correct about the application of Loving to that case.

To be clearer, ck, on the questions whether one should wait around for a legislature to do the right thing, or whether all questions of equal protection can and should be resolved simply by looking at traditions, Loving is directly on point. Even if the category is gender or orientation, rather than race.

jc,

Stepped in may not be the best choice of verbs, but the fact remains that the court could have decided that, because gay marriage is not something anticipated by the writers of NJ's constitution, that it was the duty of the legislature to address that failing.

I'm not arguing that they necessarily should have done so; as I noted in the post, there are a lot of gay couples who finally have a chance to do something that straight people take for granted, and that's a great thing. But process matters. When courts make decisions like this it takes decision-making power out of the hands of the people, (which, being a republican, doesn't bother me as much as it might democrats), and it has changed America from a republic into a semi-oligarchy over the past 30 years.

Thanks for responding Andrew, but I still must disagree with the words your using to criticize the court, as I think you're unwittingly (?) playing a small part of the Republican attack of the judiciary. Either that, or it still betrays a lack of understanding of how courts always have and should operate.

You say the "courts take decision-making power out of the hands of the people", but in a sense, that's what they do every day. Courts decide cases on a legal basis, not caring what "the people" have to say, but only what's written (or not) in the law. They're taking nothing that isn't granted to them as part of the legal system. Courts make decisions every day that people don't like and that sometimes even "invalidate the will of the majority". If the legislature or people write unconstitutional laws, or poorly thought-out laws with unintended consequences (like banning "granting any rights of marriage to anyone who's in any relationship that's not a marriage" which also gets rid of domestic violence protections for non-married couples) you can't blame the court for "stepping in" and issuing a ruling when a case is brought in front of them, unless you think the court should act as an arm of the legislature, rather than an independent co-equal branch. Is that what you're suggesting?

What you ask is for these courts to somehow to apply a "test" that for certain controversial issues, like gay marriage, that those are "questionsfor people to decide?" rather than the judicial standard of "what does the law say". The way it works now is the type of legal ruling can only be made if, as you said, there's nothing in the state constitution or laws that requires equal rights as the "default" for citizens of the state (or US). In this case all 7 judges said the NJ Constitution requires that NJ not discriminate in how it grants rights to couples, and in fact was already acting inconsistently when it let gays foster or adopt children but then didn't provide them with the same protections at heterosexual parents. 4 judges then said that the constitution doesn't clearly require the state grant gays "marriage" (a specific term) and punted to the legislature (similar to what you asked for on the smaller issue), while 3 judges ruled for full marriage based on their legal reading of the NJ Constitution.

Sure, in some states the laws are written in a way to accommodate a ruling like you ask for ("not anticipated" = rights not granted). But in general, the laws aren't written or interpreted that way. By that type of reasoning because the framers couldn't imagine cell phones or email searches of those should be exempt from 4th amendment protections. That type of reasoning is rightly rejected by all but the most authoritarian of people. Even Justice Scalia throws out that reasoning when convienent to him.

So yes, process matters, and it was followed here, to the absolute letter of the law. If you don't like the idea that the courts can issue rulings that make the majority uncomfortable, then you can try to change the court system, or write different laws. If the citizens of NJ amended their constitution to eliminate the wording that the court used to justify their decision, I would be angry, but not at the courts, at the people. And if, instead, the court had ruled the NJ constitution doesn't offer these equal protections, I would be mad, and perhaps disagree with the judicial reasoning, but I wouldn't say that courts had "contradicted my will" or "taken away decision making from the people".

Personally, I think that's the fundamental difference between the Democratic and Republican view of the courts. I see no way how the court's ruling was something untoward or something to be "stopped". And it has absolutely not changed America into an oligarchy, rather than a Republic. The courts are working pretty well, Republican attacks on lawyers, judges, judicial jurisdiction and judicial immunity notwithstanding.

betrays a lack of understanding of how courts always have and should operate.

Or, perhaps we disagree on how the courts should operate. Beware of setting up either/or questions that omit all possibilities.

Obviously, the civil rights movement is the paradigm. Its heavy reliance on judicial action created innumerable opportunities and eventually paved the way for legislation. It's doubtful the latter would've happened without the former. Roe followed a similar path- its results have been mixed. It has created much liberty for women (and men), but mobilized a so con counterrevolution that has dominated the political scene for many years. Instinctively, I prefer legislation to court fiat, not merely because process is important but because legislation coopts the majority into acceptance. But in a gay marriage context, the odds of successful legislative action are remote in most places. So the judiciary is, unsurprisingly, the last, best chance of effecting change, as it always has been. As much as judicial fiat riles me (and it does, right or left), I understand why litigants choose the path- they don't have much to lose.

Andrew, do you mean to suggest that a court should not have the power to set aside a statute that violates a litigant's constitutional rights?

Or that it should not exercise that power when a litigant has proven injury on account of an unconstitutional statute?

Are you prepared to apply one or both positions -- if you hold them -- to Loving?

Or, perhaps we disagree on how the courts should operate. Beware of setting up either/or questions that omit all possibilities.

Seriously Andrew? Sometimes there is an either/or (i.e. there are only two options). I don't think there's anything for me to beware of in this case. Either Michael J Fox was faking/exaggerating or not.

Either it's appropriate for the courts to:

a) Only consider things whether the statutes in question allows for or explicitly rejects the issue at question

B) Consider other stuff, like the will of the majority, whether people are ready for a decision, the perception of voters.

I see no middle ground, or third option, and nothing in the "charter" of our judicial system that allows for anything other than A.

Of course, if you're suggesting that the courts be changed so that issues contained in B become allowed, then fine (in a sense). I'd vigorously argue with you about the consequences of that change, and it would require a wholesale rewriting of our legal system, but that's a different conversation.

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