Big News

This makes me proud to be from New Jersey. The NJ Supreme Court made the right decision today. I actually did a fist pump while reading the first paragraph quoted (but not too strong of a fist pump; my friend just dislocated his shoulder doing one.) As you said before the 2004 elections, MY, this is an issue of such importance, it is better to do the right thing even if it means losing than to do the wrong thing in the hopes that it will be politically beneficial.

Mitch

"...it takes a lawsuit or two to set things in motion."

Good way to put it. I did some searching at Balkinization because Brian Tamanaha discuss this "tie-breaking" role of SCOTUS and the courts in a book about Dred Scott. I think.
Brown vs Brown and Roe v Wade didn't really settle anything, and many conservatives believe the animosity was created by the decisions rather than by the issue. They like to compare to Fair Housing and Voting Rights Acts, which didn't completely settle things, and have moved certain arguments into hiding.

Probably in these closely divided or incendiary issues final settlement is very difficult or impossible. But I do think the court decisions put issues into public discourse that politicians and the rest of us might otherwise ignore. I think the courts should take advantage of their powerlessness, and be very activist and aggressive. Nobody is going to be married in NJ because of this decision, but the legislature would likely never approach the issue without court prodding.

"it is better to do the right thing even if it means losing"

Long term, and not very long, this is as solid a lock as any issue in America. Gay marriage is gonna happen. Politicians should not hesitate to endorse it. It will marginalize the Christian Right as Jim Crow marginalized the racists. It is nothing but a winner.

Christmas came early for Karl Rove. I'm very happy that justice is coming to New Jersey, but I fear the price will be felt in two weeks.

Nobody is going to be married in NJ because of this decision, but the legislature would likely never approach the issue without court prodding.

Actually, if you read the opinion, you'll note that the NJ legislature HAS, in fact, addressed the rights of gay couples quite often recently. So when Matthew says "The political process, fundamentally, doesn't like to address novel sorts of disputes because it unsettles established patterns and makes trouble for everyone," that's just not the case with respect to gay couples' rights in the NJ legislature. It's not like the legislature is trying to avoid the issue. It's just that the legislature came out in a different place than the court.

I disagree that this it's better to do the "right thing" on this issue and agree that it's Christmas for Rove. Which is doubly galling since I think he's a bizarre self-hating closet case.

Current legal and religious opposition to homosexuality isn't the equivalent of race-based discrimination. There's never been homosexual slavery. There are homosexuals in every profession, at every level, etc. Yes, the discrimination is onerous and, yes, it isn't me being discriminated against. But the damage Republicans are inflicting on us in terms of our values AND infrastructure is historic and close to being irreversible. I just mourn the timing of this decision.

The GOP will exploit it, but methinks it'll be a below-the-radar thing. I just checked a lot of GOP Senate candidates websites for outraged denunctions of the decision.

George Allen – No mention
Mike Bouchard – No mention
Conrad Burns – No mention
Lincoln Chafee – No mention
Bob Corker – No mention
Mike DeWine – No mention
Jon Ensign – No mention
Tom Kean – No mention
Mark Kennedy – No mention
Jon Kyl – No mention
Joe Lieberman – No mention
Mike McGavick – No mention
Rick Santorum – No mention
Michael Steele – No mention
Jim Talent – No mention

It's still a bit early, but so far, nobody's jumping outfront to demagogue this yet. Better to maintain the kinder and gentler face while sending out below-the-radar direct mailings and so forth.

The Way of Vermont, Not Massachusetts

Jack Balkin of Balkinization of the New Jersey decision:

"...courts should explain what the key constitutional principles are that must be satisfied and then leave it to legislatures to make the political compromises necessary to satisfy them. This will result in all of the branches of state government agreeing on how to resolve the question, and therefore it will greatly enhance the democratic legitimacy of the ultimate result."

One can only hope. As a veteran of the school desegration/busing era, the hope that state legislatures achieve legitimated solutions is not always rewarded.

An essential book on the subject of litigaiton versus legislation. In short it's very complicated and unpredictable.

Yeah, because passing the Civil rights act didn't make the South solid Red for a generation...

The "OMG!!! Litigation!!!" argument was always BS. Something republicans use to convince themselves they have the right to disregard Democracy, because the other guy did it first.

Bob--the legislators of the fine state of Massachusetts seem to have accepted Goodridge just fine...

Scott, I should just buy tickets as the LGM crew takes on the Balkin posse in a tag-team cage match, but:

"In fact, the Massachusetts Supreme Judicial Court refused to let the Massachusetts legislature do anything other than amend its marriage laws to include same sex couples. In essence, it locked the legislature out of the reform process. The result was much more likely to lead to complaints that unelected judges were hijacking the democratic process." ...JB

Wiki on Goodridge vs Massachusetts Legislation currently a Work in Progress

1) I can see "educational" advantages to the NJ decision, as the legislature struggles with "the incidents thereof" and survives or fails review. Many Americans are I think unclear as to what "marriage" means in America, and how deeply it is imbedded in the legal code.
2) I think the Balkin crew is profoundly concerned about the perceived legitimacy of the courts, partly because of their particular subject interests, partly because I think they are disappointed in the performance of the other branches.
3) I have the most expansionary view of "rights" imaginable, but believe the process by which they are attained is important. Rights-holders, as in Roe, can misunderstand how fragile their position is, and how hard and dirty the fight may have to be to preserve those rights.

Yglesias says: "That seems like a reasonable conclusion to me."

That's shameful. And it's simple to demonstrate why this compromise is less than reasonable:

"The State Supreme Court in New Jersey said today that under equal protection guarantees of the state constitution, black citizens 'must be afforded on equal terms the same bathroom and water fountain facilities enjoyed by white citizens under the state statutes.'

"But it said that whether they have access to the same bathrooms and water fountains now labeled 'whites only', or separate facilities just for coloreds 'is a matter left to the democratic process.'"

Certainly the NJ gay union ruling is a step in the right direction. But reasonable? Not by half--unless the legislature were to step up and provide full citizenship for gays and lesbians.

"unless the legislature were to step up and provide full citizenship for gays and lesbians."

As I understand it, that is what the ruling compels the legislature to do.

"must be afforded on equal terms the same rights and benefits enjoyed by opposite-sex couples under the civil marriage statutes."

That is not ambiguous. It is "must" not "may" and it is "same" not "almost" or "kinda". The major point is that legislation had been passed that the court found inadequate. It may happen again. As I said above, Jack Balkin is pleased with this specific result.

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Good to see the polls catch up with reality, now that everyone has realized that the straight talk ship has sailed out of the McBush camp we just might get some real change!

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