Gay Marriage, or Something Like It

Jacob Sullum | October 25, 2006

The New Jersey Supreme Court says gay couples must have the same rights as straight couples, leaving the state legislature to decide whether to let homosexuals in on marriage or establish "civil unions" open to both. The decision is here. I endorsed the save-marriage-by-renaming-it option in a 2004 column.

Comments

|10.25.06 @ 4:29PM|#

Jebus, you guys must have been waiting by teh intertubes for word on this.

|10.25.06 @ 4:29PM|#

Bravo -- sanity pre-vails for now in the Garden State.


Is there an over/under on how long until a constitutional amendment to ban it gets proposed?

|10.25.06 @ 4:33PM|#

So if the legislator decides to go with civil unions, will they be required to have all the rights associated with marriage? This doesn't seem to be possible, since other states can be forced to recognize a marriage. Does the same apply to civil unions? And if so, would they get New Jersey civil union rights or those of the state? It seems that the right to have your union recognized should rank pretty high amongst the rights granted to heterosexual couples in a marriage.

|10.25.06 @ 4:40PM|#

Dave B,

You make good points, but you have to understand in the world of the New Jersey Supreme Court what you think or I think or what voters and communities think mean absolutely nothing. All that matters is what our robed overlords think.

The libertarians cheer this because they like gay marriage. It never occurs to them that if Courts can take away people's ability to elect officials and decide the legal definition of something as important as marriage, the Courts can take away people's ability to do anything they don't like. Just because you like the result, doesn't justify judicial tyrany.

|10.25.06 @ 4:44PM|#

So if the legislator decides to go with civil unions, will they be required to have all the rights associated with marriage? This doesn't seem to be possible, since other states can be forced to recognize a marriage.

I believe the Defense of Marriage act makes this statement false. Even before the DMA though...I don't believe there was anything that "forced" other states to recognize the marriage of other states.

Althought most states did, they were not required to do so. (Someone please correct me if I am wrong)

I do find it troubling though that same sex couples who are married in NJ or MA can not move to another state and be guaranteed to have their marriage recognized.

Does anyone know if this was / is a problem for states that have much lower age of consents for marriage?

|10.25.06 @ 4:46PM|#

I'm so tired of this issue. Let's define the two, count 'em, two things that marriage is.
1) A religious ceremony. Hell, Roman Catholics call it a sacrament.

2) A contract between two adults that legally pools assets and shares responsibilities.

Who the hell cares if the couple is straight, gay, bi, or asexual. It isn't my business, nor yours, nor the governments.

KipEsquire|10.25.06 @ 4:47PM|#

John,

It takes a certain special kind of lunacy to fear judges more than politicians.

Thank you for serving as a case study.

|10.25.06 @ 4:50PM|#

You make good points, but you have to understand in the world of the New Jersey Supreme Court what you think or I think or what voters and communities think mean absolutely nothing. All that matters is what our robed overlords think.

The role of the court is to interpret the Constitution and statues and to determine whether the statutes are in line with the constitution or not. If that bothers you so much maybe you should move to a country that has a dictatorship or no court system at all.

It really doesn't matter what "you think or I think or what voters and communities think", when what they think is unconstitional. They can amend the constitution or they can accept the ruling. Or they can leave the state.

|10.25.06 @ 4:53PM|#

"So if the legislator decides to go with civil unions, will they be required to have all the rights associated with marriage? This doesn't seem to be possible, since other states can be forced to recognize a marriage."

The New Jersey Constitution can only guarantee rights under New Jersey law. They have no right or obligation to guarantee that other state or federal governments will respect the rights guaranteed under the New Jersey Constitution.

Some states have broader gun rights than other states. The fact that Massachusetts or Washington, DC do not respect the all of the gun ownership rights outlined in the Wyoming constitution is of no consequence to the Wyoming constitution, law, or courts.

Dan T.|10.25.06 @ 4:54PM|#

Gotta hand it to John - the court makes a decision on the side of freedom and yet he still manages to spin it as an example of "judical tyranny".

The courts can't win for losing I guess.

|10.25.06 @ 4:56PM|#

It never occurs to them that if Courts can take away people's ability to elect officials and decide the legal definition of something as important as marriage

The court didn't override the legislature's definition of anything. All they said is that the laws on the book are inconsistent. The marriage laws currently don't jibe with the state constitution's equal protection guarantee. Furthermore, the court didn't change or override any laws. In fact, they did the opposite, they instructed the legislature to fix the conflicting laws.

|10.25.06 @ 4:56PM|#

"It takes a certain special kind of lunacy to fear judges more than politicians."

Yes, but it takes a very common kind of dishonesty to pretend to fear one more than the other on a case-by-case basis, which is what we've got here.

I'm sure John would be absolutely horrified if a court struck down an affirmative action law that a state legislature passed. Not.

|10.25.06 @ 4:57PM|#

John,

Judges can't create new laws, only interpret old ones. They found an inconsistency in current New Jersey laws and asked legislators to fix it. How does this amount to tyranny?

|10.25.06 @ 5:01PM|#

"The libertarians cheer this because they like __________ (Select one) 1. Gay Marriage 2. Blacks 3. Women. It never occurs to them that if Courts can take away people's ability to elect officials and decide the legal definition of something as important as __________ (Select one) 1. Marriage 2. Voting Rights 3. Abortion rights the Courts can take away people's ability to do anything they don't like. Just because you like the result, doesn't justify judicial tyrany."

|10.25.06 @ 5:01PM|#

How does this amount to tyranny

Because tyranny to people like John is anything doesn't conform to his world view.

|10.25.06 @ 5:02PM|#

I think this is a better decision than the Goodridge case in Masschusetts. The Masschusetts SJC ruled, just like Vermont and New Jersey, that denying gay people the rights and benefits of marriage, while extending them to straight people, provided unequal protection under the law. So far so good.

But the Mass SJC went further, ruling that establbishing civil unions would also deny equal protection, even if every single right and benefit of marriage was extended to civil unions. Their reasoning for this was that calling gay unions something other than marriage would lead people to look at those unions as less legitimate than those of straight people, with potential social, professional, and political repercussions for those individuals and families.

Now, I agree with that sentiment, and that's why I support equal marriage, not civil unions, for gay couples. But I do not agree with the court that those opinions and feelings, or even the social, political, and professional repercussions of those feelings, count as rights and benefits under the law.

So good for New Jersey.

|10.25.06 @ 5:03PM|#

John has posted in the past how much he dreads the idea that rogue judges will impose hideous concepts like gay marriage on an unwilling population.

He can't quite grasp the idea that the primary purpose of the judiciary is to prevent the legislative body from taking rights away from minorities in a discriminatory fashion regardless of what the majority of the population wants.

|10.25.06 @ 5:21PM|#

I have a question for legal-types: New Jersey now has some sort of full-rights homosexual union, and they leave it to the legislators to call it whatever they want. Now, does whatever name they happen to give it have to have the same for both homosexual and heterosexual couples? I mean, supposing they call it civil unions, would all NJ civil marriages between hetero couples now be called civil unions?

This is ruling appears to be pretty excellent, and if the legislators have to give the same name for both homosexual and heterosexual unions, that'd be even better.

Justin Slotman|10.25.06 @ 5:25PM|#

Andrew's interpretation is mine as well--it sounds like the "get the government out of the marriage business entirely" solution, and whatever the legislature decides to start calling their civil partnerships (I doubt they'll call it "marriage") it has to be the same for everybody. It seems like a victory for gay marriage but by a different name.

|10.25.06 @ 5:29PM|#

Who the hell cares if the couple is straight, gay, bi, or asexual. It isn't my business, nor yours, nor the governments.

True, but the problem is all of the associated welfare and tax benefits that accrue to legal spouses. Most issues can be resolved with simple contracts, but what does Heather's other mommy get from her rich Uncle Sam when there is a death or divorce?

|10.25.06 @ 5:35PM|#

I'm so tired of this issue. Let's define the two, count 'em, two things that marriage is.
1) A religious ceremony. Hell, Roman Catholics call it a sacrament.
2) A contract between two adults that legally pools assets and shares responsibilities.

In the Ideal Libertarian State™, that would be true. However, you may have noticed that we're not living in the Ideal Libertarian State™. Married couples do get legal benefits under the law which are not simply granted to any two individuals who contract with each other to get those benefits. One example of such a benefit is spousal privilege--a person cannot be compelled to testify against his or her spouse regarding private communication the two of them had. As long as such benefits exist which cannot be obtained simply by entering into a contract, then gay marriage is an important issue.

|10.25.06 @ 5:37PM|#

And if it isn't called marriage, would the current divorce laws apply? I also favor the civil unions distinction, and think straight couples should be able to call their union a civil union. Marriage has always been between a man and a woman. Despite John's protests, courts generally try to resolve cases with the least wake possible. If there's no need to upset traditional definitions of marriage, then leave it be. If gays can get a civil union and have all the same rights, and then find clergy willing to "marry" them, so be it.

Also, doesn't the Defense of Marriage Act allow sister states to refuse recognition of homosexual marriages?

|10.25.06 @ 5:38PM|#

Andrew:

The opinion leaves the name up to the "democratic process." One could be marriage and the other civil unions still.

But, unlike what some people have said in this comment thread, it does *not* merely instruct the legislature to resolve the conflict. It explicitly instructs them to grant same-sex couples the same substantive rights as opposite-sex couples. A constitutional amendment could allow the state to overturn this order, but that would take time.

As a lawyer, I'm horrified by this decision. The reasoning is a classic example of the "slippery slope" people are always warning about. The majority actually used NJ's own anti-discrimination laws as evidence that there was a "public policy" against the enforcement of a NJ law (i.e. the marriage statute)! Apparently "public policy" no longer has anything to do with laws passed, but is simply whatever philosophical principles judges think should be behind whatever subset of laws they choose to consider. Truly, most any law could be declared unconsitutional given this kind of reasoning.

|10.25.06 @ 5:42PM|#

As long as such benefits exist which cannot be obtained simply by entering into a contract, then gay marriage is an important issue.

But surely this isn't insurmountable problem? Why couldn't the benefits you refer to be extended to people living under newly-created relationship categories? Do hetero couples living in concubinage or common-law situations get all or some of these benefits?

|10.25.06 @ 5:53PM|#

Do hetero couples living in concubinage or common-law situations get all or some of these benefits?

Yes. All they have to do is get marriage, something which gays cannot do. You have special rights for one set of people that another set of people do not have access to. That's the Equal Protection problem. I don't think there is a public policy problem with enforcing the marriage statute, I think there is a Constitutional problem. Of course, there is NO Constitutional problem if you say that gays are merely two individuals living together who happen to get naked and put erections where poop goes. The "public policy" seems to be the gay relationships are real and provide stability and community and are therefore worthy of some recognition.

|10.25.06 @ 6:02PM|#

Yes. All they have to do is get marriage, something which gays cannot do

Thanks, but I mean, if they *don't* get married. I have some dim memory of some famous common-law separation case in California in which one partner was able to receive assets aquired by the other partner during their relationship, even though the two had never married.

I guess I was just wondering what the situation out there was for heteros who hadn't married. Are they ever treated like formally married couples by the state?

|10.25.06 @ 6:16PM|#

joe makes a great deal of sense on this issue. I'm glad to find something - after a long drought - that we can actually agree on.

"The New Jersey Constitution can only guarantee rights under New Jersey law. They have no right or obligation to guarantee that other state or federal governments will respect the rights guaranteed under the New Jersey Constitution." - joe

Exactly!

[Admittedly, I clipped out joe's inept analogy about how it's OK for certain states to curtail the Constitutional right to bear arms - an individual right to all citizens regardless of which state they live in - since it just doesn't apply. By clipping out the bit that attempts to provide a rationale for curtailing the right to bear arms, I am able to enjoy a moment in which the planets align and joe and I actually mostly agree on something.]

"But the Mass SJC went further, ruling that establbishing civil unions would also deny equal protection, even if every single right and benefit of marriage was extended to civil unions. Their reasoning for this was that calling gay unions something other than marriage would lead people to look at those unions as less legitimate than those of straight people, with potential social, professional, and political repercussions for those individuals and families.

Now, I agree with that sentiment, and that's why I support equal marriage, not civil unions, for gay couples. But I do not agree with the court that those opinions and feelings, or even the social, political, and professional repercussions of those feelings, count as rights and benefits under the law." - joe

There is nothing in the Bill of Rights about marriage, which according to the 9th & 10th Amendments would leave marriage as a right of individuals to marry whom they wish, and as a legal issue one which falls under the legal authority of the individual states.

The bottom line here is that denying the privileges, advantages (and disadvantages!) of marriage to gay couples is morally wrong. Along with restrictions on stem cell research, it is something that Republicans will someday look back on with shame.

Caveat: Despite my support for gay marriage, I agree with joe that "opinions and feelings, or even the social, political, and professional repercussions of those feelings," cannot be counted as rights and benefits under the law.

M. Noes' concerns regarding how the court came to its conclusion - that he believes "most any law could be declared unconsitutional given this kind of reasoning" - are definitely worrisome.

But hey, I'll take even a decision based on flawed reasoning that over-reaches the reasonable protections the law can provide when it recognizes such a basic human right!

or as joe put it: "So good for New Jersey!"

|10.25.06 @ 6:35PM|#

I favor the "civil union" approach myself, viewing marriage as a sacrament which should be left to the various churches to define.

I haven't read the judgment, so I am relying on what has been posted above. If all the judges are doing is telling the legislature to reconcile the law with the state constitution, that is acceptable.

However, John does have a point in that, just because you favor an outcome, a judgment is bad if the judicial reasoning is flawed or simply reflects the judges' views of 'the way things ought to be.'

I like the outcome, but I don't want it knackered because of a bad ruling. Further, as joe indirectly points out, flawed law is a sword that cuts both ways.

|10.25.06 @ 6:38PM|#

Is this some kind of trick?

As far as the "right to bear arms" thing - some state Constitutions go even further than the federal Constitution in protecting that right, and some do not. So even granting the federal right to bear arms, it is still possible to go from a state where there are broader protections, to one that only has the level of protection provided in the US Constitution. No clipping necessary.

"Along with restrictions on stem cell research, it is something that Republicans will someday look back on with shame." In our newfound spirit of collegiality, I'll point out that quite a few Democrats are going to look back at their homophobia with shame as well.

"There is nothing in the Bill of Rights about marriage, which according to the 9th & 10th Amendments would leave marriage as a right of individuals to marry whom they wish, and as a legal issue one which falls under the legal authority of the individual states." And in this case, the state with the legal authority has a constitution that forbids it from discriminating against homosexuals.

"M. Noes' concerns regarding how the court came to its conclusion - that he believes "most any law could be declared unconsitutional given this kind of reasoning" - are definitely worrisome."

I don't find Mr. Noe's objection terribly worrisome because, contrary to his assertion, it is not "whatever philosophical principles judges think should be behind whatever subset of laws they choose to consider," but the New Jersey Constitution.

|10.25.06 @ 6:41PM|#

BTW,

I went to Bishop Feehan High School, and the Sisters of Mercy were always quite clear on one point:

Marriage is a civil institution established by the government.

Matrimony is a sacriment established by God.

There are lots of marriages going on - such as those among divorced couples - that do not meet the Church's standards for Holy Matrimony. And yet, both our society and the Holy Catholic Apostolic Church have managed to survive.

|10.25.06 @ 7:06PM|#

I didn't know the Sisters of Mercy had a whole lot to say about marriage or matrimony - can you point me to some song lyrics? ;)

|10.25.06 @ 7:32PM|#

I thought that the second amendment doesn't apply to states according to the courts, so a state that doesn't grant you that right can prevent you from having firearms even though the federal government could not.

I think one important point that John illuminates is that courts are hardly consistent and giving them so much power means that they can basically destroy freedoms. Obviously this is a case where the courts recognized freedom, but look at all the other cases like Kelo and the U. of Michigan case where the courts took away freedoms that seemed to be guaranteed in the constitution. A cynic might think that the NJ court was just favoring a particular group rather than basing their decision on any sort of idea about equal protection and freedom.

|10.25.06 @ 8:10PM|#

joe,

But the Mass SJC went further, ruling that establbishing civil unions would also deny equal protection, even if every single right and benefit of marriage was extended to civil unions.Their reasoning for this was that calling gay unions something other than marriage would lead people to look at those unions as less legitimate than those of straight people, with potential social, professional, and political repercussions for those individuals and families.

Seems to me the Mass. court was right. How you can accept that denying gay people the rights and benefits of marriage, while extending them to straight people, provided unequal protection under the law yet think that the only requirement would be nominally equal rights and benefits. If it's wrong in the first place, presumably because determining which rights and benefits an individual may avail himself of based on his sexual orientation is wrong, then surely creating a "separate but equal" form of marriage under a different name, to be offered to those who would still be barred from the other "marriage" still based solely on a characteristic which we agree is an inappropriate one for government to consider, must be wrong as well.

Would the state be allowed to create some other categories with equal standing to marriage, albeit with a different name, for say, interracial couples? What if it attempted to create this "Interracial Civil Union" with all the rights and benefits of regular marriage, yet the court found that calling [interracial] unions something other than marriage would lead people to look at those unions as less legitimate than those of [white] people, with potential social, professional, and political repercussions for those individuals and families?

Would the court likewise have been going too far in that case? It seems like the Mass. court at least had the courage of its convictions. I am not sure how one can logically sustain a sort of middle ground approach where it is still okay to create a separate legal status based on some arbitrary and irrelevant characteristic as long as that status comes wrapped with all the bells and whistles that everyone else gets. Didn't we get rid of that notion with Brown?

|10.25.06 @ 8:16PM|#

"Is this some kind of trick?" - joe

I would have thought so, if our roles were reversed. But I figure since you went first, we actually ARE on the same side of this one.

"As far as the 'right to bear arms' thing - some state Constitutions go even further than the federal Constitution in protecting that right, and some do not. So even granting the federal right to bear arms, it is still possible to go from a state where there are broader protections, to one that only has the level of protection provided in the US Constitution. No clipping necessary." - joe

Hmmm... I'd agree except that there are states that clearly violate the right to bear arms by all but prohibiting it entirely.

"In our newfound spirit of collegiality, I'll point out that quite a few Democrats are going to look back at their homophobia with shame as well." - joe

Huh? I guess I haven't followed this particular bit of double-faced nonsense from the Democrats. I figured I could at least rely on the Dems to be pro on the issue of "gay rights." A term I can't stand, frankly, because it sounds too much like an admission that something as inane as sexual orientation could be used to by the gov't to deny someone their rights and the equal legal protections due to all law-abiding citizens.

"And in this case, the state with the legal authority has a constitution that forbids it from discriminating against homosexuals." - joe

Which, frankly, again sets my teeth on edge because it sounds like the gov't is GRANTING rights and freedom from discrimination, rather than acknowledging it as the natural state of relations between an individual and the gov't.

"I don't find Mr. Noe's objection terribly worrisome because, contrary to his assertion, it is not 'whatever philosophical principles judges think should be behind whatever subset of laws they choose to consider,' but the New Jersey Constitution." - joe

I'll take your word on it, since regardless of the logical steps undertaken, I'm happy with the outcome.

Frankly, at this point, I don't care if they take into consideration the "Word of God" as revealed to them on the back of 5 or 6 golden tablets in the shape of Snickers candy bars delivered by sentient reptiles from the Nebulon dimension.

Not as long as they interpret it in a way that encourages them to increase freedom, liberty and equal protection under the law for all.

I come to this sad point because apparently most lawyers, legal scholars and sitting judges & justices seem to have forgotten that LIMITING gov't power and PROTECTING inidividual natural rights while granting the federal gov't the power to "establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity."

Cheers.

|10.25.06 @ 8:24PM|#

Brian Courts,

Good points. On first blush, I'd say the history of racial segregation as a means of oppression makes "separate but equal" an unsatisfactory means of guaranteeing equality under the law. I'll have to think about that some more.

rob,

Mmm...Snickers.

|10.25.06 @ 8:50PM|#

Brian,

"Separate but equal" facilities actually denied black people entry to buildings, rest rooms, schools, and places of public accommodation. There was a whole list of things that white people could do that black people were not allowed to take part in. That simply isn't the case in the debate over what to call gay unions.

In addition, the allegedly equal facilities were manifestly not equal. To take just the schools, not only were they in practice inferior, but the very practice of forbidding black children from going to the regular schools denied them the social and economic opportunities that come from being classmates.

Now, don't should "a-ha!" just because I used the word social in this context. We're not talking about your teammate on the baseball team maybe thinking certain things about you. We're talking about that relationship not ever developing in the first place. Given the importance of "who you know" in determining the opportunities and experience you get to enjoy in life, this isn't just a question of feelings, but of tangible benefits that you're not going to get to enjoy, because you have been denied the means by which people gain the opportunity to have those benefits.

Being a member of the community is part of the rights and benefits of a citizen, in a manner that having people think certain things about you is not. Civil-unioned gay people who don't have their marriages taken as seriously by some people are not being denied membership in society.

|10.25.06 @ 9:25PM|#

Bastards!

Sure, you're all down with NJ now, but in a week, when a judge is indicted for corruption of there's a big wreck on the Turnpike you'll all be claiming that the Garden State is a shithole.

Still, it's nice to get some kudos. Thanks.

New Jersey today ... New Jersey tomorrow ... New Jersey forever!

|10.25.06 @ 10:59PM|#

Hey, NJ Patriot, you won't hear any complaints from me. My mom (jersey girl supreme) has made it known for me that I can speak no ill of the Garden State.

|10.25.06 @ 11:09PM|#

It never occurs to them that if Courts can take away people's ability to elect officials and decide the legal definition of something as important as marriage, the Courts can take away people's ability to do anything they don't like. Just because you like the result, doesn't justify judicial tyrany.(sp)

Many good points have already been made to show this to be utter nonsense

my $.02

while courts arent directly answerable to the public, they are by no means immune from influence...if anything, a great benefit they provide to our system is a brake effect on the passionate stupidity that often drives public opinion. while courts can get things wrong, they arent nearly as damaging in most cases as is the political impulse to immediately legislate over every facet of human existance.

as for gays getting hitched by any other name, i agree recognition is the key.

JG

|10.26.06 @ 2:14AM|#

Oh my...now there is another Andrew!

Well this is the Andrew you all know and love.

This is a capricious, ill-considered and over-reaching conclusion, which hinges on language NJ magnanimously included in its constitution to prohibit discrimination based on sexual preference.

Now every state which has included such language in its constitutions (some 30 or 40, I would guess) will have to backtrack and suppress such - originally, benevolently intended - clauses, in order to protect the right of democratic majorities to define marriage, free from the ostentatious idiocies of runaway judiciaries.

The NJ court couldn't have stretched for this over-reach, save for the fact that NJ generously prohibited discrimination in its constitution...now thanks to the activists, this proviso for gays is likely doomed.

|10.26.06 @ 2:49AM|#

Seriously! These state legislators were kind enough to prohibit discrimination based on sexual preference, and then these crazy activist judges interpret this as a prohibition of discrimination based on sexual preference. What's up with that? Now they'll have to change the constitution just to keep the gays from acting like full members of society.

|10.26.06 @ 8:17AM|#

This is the joe you all know and love.

This is a capricious, ill-considered and over-reaching conclusion, which hinges on language NJ magnanimously included in its constitution to prohibit discrimination based on race and ethnicity.

Now every state which has included such language in its constitutions (some 50, I would guess) will have to backtrack and suppress such - originally, benevolently intended - clauses, in order to protect the right of democratic majorities to define voting rights, free from the ostentatious idiocies of runaway judiciaries.

The NJ court couldn't have stretched for this over-reach, save for the fact that NJ generously prohibited discrimination in its constitution...now thanks to the activists, this proviso for black people is likely doomed.

|10.26.06 @ 8:21AM|#

I heard a lesbian on the radio this morning explaining how it was all about how her kids could proudly tell their schoolmates that their parents were married, and how it might be harmful to the children if their friends thought that the homosexual adults were living in sin. So once again, it's all about the children. How embarrassing to have to tell your friends that your lesbian "mothers" are not married!

|10.26.06 @ 9:32AM|#

Basically this thread proves that libertarians have absolutely no principles other than their own political power. They are no different than the rest. They like gay marriage so they applaud getting it regardless of how it is accomplished. Of course when the Christian nuts interpret the free expression clause to mean that intelligent design must be taught along with evolution, they will have fainting fits at the judicial overreach (and rightly so!!). It will never occur to them that by running to the courts to solve every political problem they don't like rather than trying to convince people and voters of the wisdom of thier cause they are just encouraging every other group to do the same. Some day the judicial culture in this country won't be so liberal and freedom loving as the New Jersey Supreme Court. It already isn't when it comes to political speech. When that day happens, the judges will have the ability to do a lot of things that you people won't be so happy about. But hey, you will gay marriage. That is of course until some judge somewhere else decides that you won't.

|10.26.06 @ 9:37AM|#

I thought that the second amendment doesn't apply to states according to the courts

The Supreme Court has never specifically ruled on whether the 2A is "incorporated" into the 14A so that it applies to the states. What dicta there is on the topic, however, indicates that the 2A is incorporated and applies to the states.

|10.26.06 @ 11:33AM|#

I can't speak for all libertarians, John, but I'd like to respond to explain why I'm personally - though cynically - happy to see this outcome.

"Basically this thread proves that libertarians have absolutely no principles other than their own political power. They are no different than the rest." - John

Actually, it shows that I have seen liberals and conservatives do what you complain about too often: "running to the courts to solve every political problem they don't like rather than trying to convince people and voters of the wisdom of thier cause." Far and away, the usual result of these maneuvers is a result that ends in limiting freedom, curtailing liberty, and denying people equal protection under the law.

Frankly, I'm glad to see that even if they "worked the steps in the problem wrong" that they managed to arrive at the right answer: expanded liberty and equal protection under the law is never the wrong answer.

Usually, when they work the steps wrong they get the wrong answer - which is greater legal tomfoolery to limit liberty.

"they are just encouraging every other group to do the same." - John

No, I think faulty reasoning (working the steps incorrectly) is still wrong. I certainly don't encourage it.

But I do cynically recognize how often they get the ANSWER wrong, rather than just the steps leading up to it. I'm glad to see they at least got the ANSWER right.

Usually they get the whole thing wrong and end up placing further legal limitations on freedom, rather than removing them... That's far worse than just getting the legal logic wrong, frankly.

"Some day the judicial culture in this country won't be so liberal and freedom loving as the New Jersey Supreme Court." - John

You mean like nearly every day, at some level of the state or federal gov't? That's not much of a scary scenario to chastise me with since it's already happening all the time. The blame for that should be lain not at the feet of lbertarians, but where it rightly belongs - it's the fault of the two primary parties, which simply represent the two sides of the same authoritarian control freak tendency.

Call me out for being willing to celebrate the NJSC for getting the right answer from faulty reasoning if you'd like, and I'll admit I'm guilty of it.

But every single day of the week (AND SUNDAY TOO, DEE DEE DEE) I'll take bad reasoning that results in the right answer (increased liberty, equal protection under the law) over bad reasoning that results in the wrong answer (curtailed liberty, unequal protection and preferential treatment for certain groups).

"It already isn't when it comes to political speech. When that day happens, the judges will have the ability to do a lot of things that you people won't be so happy about." - John

Like I said, that day has been here for a while, John. It does seem a bit of an odd coincidence that you've "suddenly found" libertarian principles when it's handy for pointing out the jacked-up legal rationale involved here.

But I suspect that you're actually abusing the legal principle argument as a bridge to support an argument FOR discriminating AGAINST equal rights for everyone ('cause those gay people are ICKY!)

I guess the litmus test would be this: do you support gay marriage or not?

"But hey, you will gay marriage. That is of course until some judge somewhere else decides that you won't." - John

That's the only concern that I have here, but let's face it, this particular decision or the libertarian stance on it isn't what will open THAT door. The barn door has been open on that for a LONG time, and liberals and conservatives have used that open door to pilfer as many liberties as they can get away with.

Liberals AND conservatives have a storied tradition of faulty legal reasoning in support of their preference to limit whichever freedoms, liberties and equal protections under the law they don't like other people to have.

With that in mind, maybe you'll just have to forgive my cynical celebration that FOR ONCE the standard routine of faulty reasoning resulted in a practically unheard-of net gain for liberty.

|10.26.06 @ 12:47PM|#

You just don't get it, John. One of the fundamental functions of the judicial branch is to protect individual rights from the tyranny of the majority. Courts will make good and bad decisions. In general, I think decisions that protect freedoms are good; decisions that limit freedoms are bad. I really don't have any strong feelings about gay marriage except that how two consenting adults choose to live is really none of my damn business... and it is none of your damn business, either. If it takes legal action to get you to realize this, than bully for the courts.

Robert Goodman|10.26.06 @ 4:16PM|#

"Other plaintiffs have had to contend with economic disadvantages, such as paying excessive health insurance premiums because employers did not have to provide coverage to domestic partners, not having a right to �family leave� time, and suffering adverse inheritance tax consequences."

That's from the opinion, concerning NJ couples who had same-sex civil unions but weren't married. So this is no advance for liberty. Some inheritance taxes may be foregone, but meanwhile employers will be required to provide family leave and health coverage in more cases, and so forth. It was about forcing both gov't and private parties to treat partners according to certain privileges mandated by law.

It's not even a gain for equality. It doesn't do away with a division between privileged and unprivileged persons, but only moves that fence in one direction. The laws privileged married over unmarried persons, and now it will also privilege certain other couples over the uncoupled. Where does the single person, of whatever sexuality, go to get the equivalent of family leave time, and the other economic advantages of couples?

|10.26.06 @ 5:18PM|#

Robert Goodman - Well, I think to take family leave time you have to have a family, by which I mean a child. My understanding is that family leave is really maternity/paternity leave.

You want a little extra time off as a single person? Have a kid. I guarantee you that the kid will drain more of your resources than you will ever recoup in "gov't-sponsored privileges."

Sheesh. The disparity between how individuals and married folks are treated is wrong, but I don't see how extending marriage to gay couples makes it any worse for single people in comparison to married people than it already is.

Arguing that "employers will be required to provide family leave and health coverage in more cases," just doesn't cut any ice with me unless the case was not about extending the rights of marriage to gay couples but was instead about the inequality of the gov't treating married couples better than singles.

|10.27.06 @ 12:27AM|#

joe

You're off track. The NJ constitution does not guarantee equal rights to gays with respect to marriage (or voting). It prohibits discrimination with respect to sexual preference.

The existing marriage laws in NJ did NOT discriminate based on sexual preference. Two straight men, or two straight women, are not allowed to marry despite their lifestyle preferences (and there ARE imaginable reasons why two straight people of the same gender might wish to marry).

Conversely, a gay man has every right to marry a woman (many do, for various reasons)...and so with any gay woman and a man. The requirement to confine marriage rights to a partnership of a man and woman does not discriminate against ANYONE based on sexual preference.

But, because of this stupid court decision, there is now a strong incentive for every state to remove such language from its constitution, and other legislation.

|10.27.06 @ 10:36AM|#

"The existing marriage laws in NJ did NOT discriminate based on sexual preference." - Andrew

I'm pretty careful about parsing legal language, Andrew, and even I don't get this argument. So your argument is that the law discriminates on the basis of gender, rather than on the basis of sexual preference?

This is a better form of discrimination HOW?