Bench Memos

Re: New Jersey Ruling on Same-Sex Marriage

Just a few comments:


1.  In an obvious parallel to the opening clauses of the second paragraph of the Declaration of Independence, Article 1, paragraph 1, of the New Jersey constitution reads:


“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.”


Based on this provision, and on previous judicial decisions construing it, the New Jersey Supreme Court has just ruled (unanimously) that all the rights and benefits of marriage need to be made available to same-sex couples.  This is, simply put, judicial activism run amok, even if it reflects the gradual judicial accretion of power over some decades.  So many judges today view judicial decisionmaking as essentially an autonomous process, unmoored from the meaning of the actual text.  Not a single justice on the New Jersey Supreme Court did a simple sanity check:  Is it remotely plausible, remotely compatible with democratic principles, to read this constitutional provision as supporting the court’s result?  One could, with equal implausibility, maintain that the Declaration of Independence declares that the rights and benefits of marriage must be extended to same-sex couples. 


2.  The court’s opinion (37-43) provides a clear warning to any states that are thinking about providing significant statutory protections to gays and lesbians:  Once you do so, judges will rule that your failure to provide all the rights and benefits of marriages is irrational.


3.  The majority’s purported solicitude for the right of New Jersey citizens to decide what name to give the new same-sex arrangement is impossible to take seriously, when those same judges run roughshod over citizens’ ability to decide which rights and benefits of marriage should be available to same-sex couples.


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