Bench Memos

The Death of Legal Reason in New Jersey

Last week at Public Discourse, I detailed how New Jersey Superior Court Judge Mary Jacobson turned legal reasoning upside down and inside out in order to reach the conclusion that the state constitution now requires legal recognition of marriage for same-sex couples.  Traducing the principles of federalism and of logic alike, Judge Jacobson held that since the U.S. Supreme Court, in its June decision in Windsor, had insisted that the federal government must call any same-sex couple married if a state calls them so, therefore New Jersey must henceforth call same-sex couples in civil unions “married” so that they receive all their “rights” under federal law.  This was an error in legal reasoning of the most fundamental kind–the kind that ought to receive an “F” in law school, and result in failure of the bar exam.  For Judge Jacobson was saying that although the federal government was the perpetrator of an alleged injury suffered by same-sex couples in New Jersey civil unions, it is the state that must supply the remedy of treating them as married.  Never mind that this also required willful misreading of Windsor, whose logic presumes the validity of state laws to determine who has the status of being married.

Governor Chris Christie’s administration appealed the case to the state supreme court, and requested it order the stay that Judge Jacobson had denied (she had set today as the first day the state must let same-sex couples “marry”).  On Friday a unanimous supreme court denied the stay, and strongly signalled its probable future decison to affirm Jacobson’s ruling.  Amazingly, there seems to be not a single justice on the state supreme court willing to consider rejecting the obviously erroneous–indeed, incompetent–”reasoning” of Judge Jacobson.  Chief Justice Stuart Rabner blandly averred that as long as same-sex couples in New Jersey are not considered “married” by the federal government, “[t]he State Constitution’s guarantee of equal protection is not being met.”  This, to borrow from the physicist Wolfgang Pauli, is so badly mistaken it is “not even wrong.”  It’s just unbelievably dumb.

But Governor Christie has, understandably, seen this nonsense as predictably leading to defeat for conjugal marriage in New Jersey, and today he instructed the attorney general to withdraw the appeal, which was scheduled for January.  Gov. Christie, to his credit, has vetoed same-sex marriage legislation sent to his desk by the Democrats in the state legislature, and he has repeatedly called for a referendum of the people of New Jersey as the only legitimate way to change a legal principle as basic as the meaning of marriage.  But the governor has never, to my knowledge as a resident of the state for the last three years, made the preservation of marriage a top priority, nor made a strong argument for conjugal marriage in public.  (Nor, to judge from Chief Justice Rabner’s opinion, was the state attorney general making very strong arguments in the case.)  And Christie has been notably ineffective in his first term in reshaping a state supreme court that remains reliably liberal.  Where marriage is concerned, “reliably liberal” means reliably willing to trash constitutional government, the rule of law, and reason itself in order to effect a social and legal revolution according to current fashion.

The fallout for freedom and limited government will be bad indeed.  But the death of reason had to be accomplished first.  And so it has been.

 

Matthew J. Franck is the Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, New Jersey.

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