Strengthening Constitutional Self-Government

No Left Turns

Another October surprise?

A gay marriage (?) decision in New Jersey.

There’s some discussion at The Corner. I doubt that it will make a huge difference in New Jersey, but it might provide fodder for someone like African-American social conservative Harry Jackson, who has expressed doubts about Republicans, discussed here and here. In fact, I wonder if the New Jersey decision might not have more of an impact in Jackon’s home state of Maryland, where Michael Steele is likelier to take a stand than is Tom Kean, Jr., especially since Maryland has its own judicial gay marriage controversy. (You can read one of the amicus briefs filed in the appeal here). Any Marylanders out there agree or disagree with me?

Update: Another hotly contested state where this might matter is Virginia. And while I’m at it, Ed Whelan walks us through the decision at Bench Memos.

Update #2: There’s speculation about the political impact of the decision here.

Discussions - 7 Comments

The court made the right decision.

It wasn’t their decision to make. They simply inserted their personal preferences in the state constitution and called it "law".

If the legislature and the courts are co-equal branches, how can the courts order the legislature to pass a certain law? Can the legislature order the court to reach a certain verdict?

If you want more of this, elect Democrats. The Democrat law-makers who want this have judges do it for them so they won’t have to stand up like men.

This isn’t "constitutional law"--it is the exact opposite. It is homo-fascism.

Noel:

Legislatures tell courts what results to reach all the time: they are called laws.

Courts used to judge a lot of cases per the common law, which was mostly judge made law. The entire legal history of America is the slow substitution of Legislature made law for the common law.

The current legal history of America is the speedy substitution of the rule of law for Judicial Monarchy and the Divine Right of Judges.

You see, I have this crazy idea that words mean what they mean and that we are fit to rule ourselves. If Same-Sex "marriage" is in the Equal Protection clause, then everything is. And I mean everything; polygamy, multiple marriage, tax-payer funded sex-changes, legal prostitution, legal narcotics--it’s all right there in the Equal Protection clause, plain as day.

Our Constitution isn’t perfect, but it’s better than what we’ve got. Serf...or citizen?

Noel:

I share your concerns, but think you have to admit the Constitution has a huge loophole (by design). Check out the 9th amendment. It provides that the people have rights not enumerated in the Constitution. In other words, just because the Constitution does not expressly state the right, does not mean it is not entitled to respect. The drafters of the Bill of Rights did this on purpose, they did not want the Bill of Rights to be construed as all-inclusive.

It seems the only valid debate can be: (1) Whether the 9th amendment applies to the States, and (2) How courts can legitimately determine whether a claim should be respected as a constitutional right. I do not believe it it correct to characterize those who find rights not in the actual text to be arguing in bad faith because of the 9th amendment.

Steve,

The 9th (& 10th) Amds. are all but extinct. I would actually support reviving them. I haven’t read this decision but heard that it was an Equal Protection ruling. I did read the dishonset statements of the judges who said they were honoring democracy by allowing the legislature to name it either "marriage", "civil unions" or perhaps "Bob".

There is no debate at all, valid or otherwise. Just a handful of judges imposing their will. That’s the problem. btw, this is the court that unanimously ruled that the Boy Scouts had no free association rights. We are losing our ancient and actual rights while they keep inventing new and novel "rights". Pass the FMA.

btw, it appears that the court used not so much "Equal Protection", but this language from the state’s preamble:

"All persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness. Therefore, homosexual activists get everything they want, win every argument and can re-order the institutions of society at will."

Okay, I made the last part up--but then, so did the Court!

Steve; You say ’Legislatures tell courts what results to reach all the time: they are called laws.’ But if a court tells a legislature what it must say to the court, then the court is essentially talking to itself.

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