Big Lizards:Blog:Entry “Will They Or Won't They: Pyrrhic Days Are Here Again”

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October 25, 2006

Will They Or Won't They: Pyrrhic Days Are Here Again

Hatched by Dafydd

Well, at least they didn't go "Full Monty" on us.

The New Jersey Supreme Court stopped short of declaring "a fundamental right to same-sex marriage" in the state, but not so subtlely hinted that the legislators had six months to do one of two things:

Institute full-blown same-sex marriage in New Jersey;

Create civil unions so sweeping and all-encompassing that they may as well be marriage -- in everything but name.

There is barely any difference between what the court ruled and going whole hog (can I think of any more metaphorical phrases?), as they did in Massachusetts in the case Goodridge v. Department of Public Health. Like the Massachusetts case, the New Jersey decision was 4-3, as divided as possible, to create a new right ex nihilio (whatever they may claim): the right to civil unions that perfectly mimic marriage.

However, in the Jersey case -- Mark Lewis and Dennis Winslow, et al. v. Gwendolyn L. Harris, etc., et al. (A-68-05) -- the three dissenters (Chief Justice Deborah Portiz, and Justices Virginia Long and James Zazzali, all appointed by "Republican" Gov. Christine Todd Whitman) only dissented in that they wanted the court to force full-blown same-sex marriage on the state. The Jersey decision is thus actually more left-liberal than Goodridge, because the three dissenters in Massachusetts (Justices Cordy, Spina, and Sosman) actually held that such a decision was properly left to the legislature, not the courts.

Massachusetts Gov. (and likely 2008 presidential candidate) Mitt Romney's response to Goodridge applies equally well to Lewis:

"Like me, the great majority of Americans wish both to preserve the traditional definition of marriage and to oppose bias and intolerance directed towards gays and lesbians," Romney began by way of preface.

Then he asked the question we should all be asking: "Given the decision of the Massachusetts Supreme Judicial Court. . . Should we abandon marriage as we know it and as it was known by the framers of our Constitution? Has America been wrong about marriage for 200 plus years? Were generations that spanned thousands of years from all the civilizations of the world wrong about marriage? Are the philosophies and teachings of all the world's major religions simply wrong? Or is it more likely that four people among the seven that sat in a court in Massachusetts have erred? I believe that is the case."

Then Mitt Romney put his finger on where the error comes from: the limited perspectives of lawyers and judges. "They viewed marriage as an institution principally designed for adults. Adults are who they saw. Adults stood before them in the courtroom. And so they thought of adult rights, equal rights for adults. If heterosexual adults can marry, then homosexual adults must also marry to have equal rights."

But, he went on, marriage is not solely for adults. "Marriage is also for children. In fact, marriage is principally for the nurturing and development of children. The children of America have the right to have a father and a mother."

(I normally don't use such a long quotation from another source; but in this case, Maggie Gallagher, of the Institute for Marriage and Public Policy, is simply quoting from a speech by Gov. Romney, so she has no cause to complain. Now, if Mitt Romney calls and yells at me, I'll have no defense at all!)

In the interests of fairness, and so you won't think she does nothing but quote, here is Gallagher speaking for herself:

The result [of Goodridge] is not neutrality but the active promotion of a new unisex ideal, in which the distinctive features of opposite-sex relations will be submerged, marginalized, cast to one side, and redefined as discrimination in order to protect the new court-ordered public moral standard of the equality of same-sex and opposite-sex couples.

Even if there is no process for "citizen initiative" in the state of New Jersey, the legislature itself is certainly empowered to propose changes to the New Jersey constitution (by a 60% supermajority, or by majority vote in two consecutive years); which means a third response to Lewis is to send to the voters a constitutional provision to declare that marriage shall be limited to a man and a woman, that there shall be no "quasi-marriage" civil unions, and to leave it at that.

I am not one of those who would be satisfied by having marriage by another name for same-sex couples, or for groups of more than two, or for brother-sister relationships. I totally oppose civil unions, because experience teaches me that the moment a "civil union" exists, the courts will declare it must be exactly equal to marriage itself. But the whole point is that marriage is a unique institution and should be privileged above all others: that is one of the foundations of liberal Western democracy, along with individual liberty and capitalism.

What are the odds that the New Jersey legislature will propose such a constitutional amendment? I confess I have no idea. The Assembly is dominated by the Democrats (49 to 31), but the state Senate is closely divided, with a slim Democratic majority of 22 to 18. But that tells us little, because many Democrats are sane on this subject and oppose SSM.

If all the Republicans voted for such an amendment (I don't even know if that is likely), it could be sent directly to the voters in a single session with as few as 6 Democratic votes in the Senate (27% of the caucus) and 17 in the Assembly (35% of the Democratic caucus). Alternatively, by as few as 3 Democrats in the Senate (14%) and 10 in the Assembly (20%) in two successive years would also work.

So how about it, New Jersey? Care to step up to the plate and defend Western civilization as we know it?

Hatched by Dafydd on this day, October 25, 2006, at the time of 3:41 PM

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» "De Minimising" De Marriage from Big Lizards
A commenter in an earlier post, arguing in favor of same-sex marriage (SSM) -- or at least against motions to prevent it, such as initiative constitutional amendments -- made the following argument, which is interesting and deserves response: De minimi... [Read More]

Tracked on October 26, 2006 5:56 PM

Comments

The following hissed in response by: Big D

I'm okay with with civil unions, as long as they are either approved by the legislature or the people. I also believe that each state should decide for themselves on what they want. No fair having Mass. force it down every one's throat.

Philosophically...pheeehh. Who cares? I'd prefer not to call it marriage for homosexuals, since that would unnecessarily offend some (not me) people. But civil unions? Knock yourself out.

If I wasn't planning on having children I may never have gotten married. What guy actually wants to go through a marriage ceremony? Expensive, irritating, boring, stressful. I don't like going to weddings, much less participating in them.

I think that the push for gay marriage is principally by the wedding industry and people who enjoy party planning....There's money in them thar' gays.

The above hissed in response by: Big D at October 25, 2006 4:35 PM

The following hissed in response by: ShoreMark

So how about it, New Jersey? Care to step up to the plate and defend Western civilization as we know it?

Are you kidding? It's almost a certainty that they'll pass gay marriage in both spirit and in name at 11:59 on the last possible day (they like doing dramatic last minute midnight stuff in Jersey), which it appears will be May 25, 2007, just in time for Memorial Day honeymoon reservations.

The above hissed in response by: ShoreMark at October 25, 2006 7:24 PM

The following hissed in response by: MTF

Facing facts, the court ruled in favor of full gay marriage. There was only the barest of smirks in the direction of democracy, in the form of daring to dictate to the peoples representatives a non-choice and a deadline.

New Jersey is in desperate shape. And the state supreme court is able, under the circumstances, to decide anything it wants to decide without respect to the actual law (housing and land use rules, death penalty, school funding etc etc etc).

We're lucky they even let us have a legislature-- even in name only.

We might change these things but, in all seriousness, the court probably wouldn't allow us to have a constitutinal convention.

The above hissed in response by: MTF at October 25, 2006 7:32 PM

The following hissed in response by: ShoreMark

...the state supreme court is able, under the circumstances, to decide anything it wants to decide without respect to the actual law...

MTF, Not to mention the replacing "The Torch" on the ballot gambit after the deadline a few years back (back before the governor came out).

The above hissed in response by: ShoreMark at October 25, 2006 8:04 PM

The following hissed in response by: Dick E

Dafydd-

Speaking of metaphors:

...full-blown same-sex marriage...

Mercy! You naughty reptilian!

The above hissed in response by: Dick E at October 25, 2006 8:20 PM

The following hissed in response by: Dafydd ab Hugh

MTF:

We're lucky they even let us have a legislature-- even in name only.

We might change these things but, in all seriousness, the court probably wouldn't allow us to have a constitutinal convention.

Wait, refresh my memory: how many divisions does the New Jersey Supreme Court have?

Dafydd

The above hissed in response by: Dafydd ab Hugh at October 26, 2006 12:05 AM

The following hissed in response by: Davod

The idea of the legislature coming up with a change to the constitution sounds great but it does not matter. The the court will say it is unconstitutional. We really have reached the tyranny of the minority over the majority.

The above hissed in response by: Davod at October 26, 2006 1:27 AM

The following hissed in response by: nk

De minimis non curat lex. The law does not care about trifles. Massachusetts had less than 7,000 same-sex marriages in the first year, about 2/3 of them between women and mostly between people over 35. Even if that occurred in every state in te Union it would be statistically meaningless compared to, for example, the number of illegitimate children. Or automobile related fatalities. Or bathtub accidents. As a social problem gay marriage is right up there with ... well nothing that I can think of.

Dafydd, you were reading "The Brothers Karamazov" not too long ago? Did you get to the Grand Inqusitor yet? The Grand Inquisitor would say: "This is the only life they (gays) will have. I know that I will never put them on the path to Heaven. But I will not condemn them to Hell on Earth even though that may condemn me to Hell for eternity alongside them."

The above hissed in response by: nk at October 26, 2006 10:45 AM

The following hissed in response by: MTF

It is so tiresome that supporters on one side or the other in this (or similar) social disputes keep trying to change the subject.

In this case, the social theorists think it's a good time to speak up in support of gay marriage, when the issue at hand far more serious-- are we willing to allow the death of representative democracy? Are we going to stand idly by, while these unelected nannies tell us what the law ought to be? I, for one, would be happier if they'd concentrate on what it actually is, instead! Let the elected legislature, corrupt as it may be, dare to make these laws. They, at least, would have to face the citizens and defend their actions.

Dafydd is correct, of course: Princeton's Deborah Poritz and her buddies have a very small army, and that army is, truth be told, mostly concerned with the proper operation of the spoils system. The Supreme Court thinks they're pretty special, and think themselves insulated by their lifetime appointments from the disgust and anger of the citizens. Maybe they are right, too.

Where is Thomas Paine when we need him?

Right here I guess! Get to work ab Hugh.

The above hissed in response by: MTF at October 26, 2006 11:31 AM

The following hissed in response by: Bill Faith

Excellent analysis; I learned from it. Excerpted and linked at Bill's Bites >> NJ Court legalizes queer marriage (Updated, bumped)

The above hissed in response by: Bill Faith at October 26, 2006 4:42 PM

The following hissed in response by: Dafydd ab Hugh

Nk:

Massachusetts had less than 7,000 same-sex marriages in the first year, about 2/3 of them between women and mostly between people over 35. Even if that occurred in every state in te Union it would be statistically meaningless compared to, for example, the number of illegitimate children.

I responded via another post.

Dafydd

The above hissed in response by: Dafydd ab Hugh at October 26, 2006 5:57 PM