Patterico's Pontifications

10/25/2006

Gay Marriage Decision

Filed under: General — Patterico @ 10:32 pm



I haven’t read the New Jersey gay marriage opinion. I’ve just been too busy with other things (including finishing Michael Connelly’s excellent “Echo Park”). And I don’t comment on judicial opinions that I haven’t read. Suffice it to say that I agree with the policy, but (based on previous similar efforts by other courts) I rather doubt I’d agree with the opinion — though I can’t know for sure without reading it.

Anyway, consider this an open thread on the topic.

57 Responses to “Gay Marriage Decision”

  1. Haven’t read it either — just the portions quoted on various blogs, but the thing that really bothers me is the command from the court to the legislature. Surely if the commands were going the other way, the court would take umbrage.

    Eugene Volokh has an interesting argument about “slippery slopes“, pointing out that the court relied on the direction of recent laws regarding acceptance of gays in reaching it’s conclusion that this accpetance now required an equal state-recognized personal-contract right for gays.

    Some argue that the sourt showed deference to the legislature here, but given their ORDER that the legistlature pass the new policy within 180 days, it looks more like ukase than deference.

    Let’s see if the legislature has a spine. I suspect not.

    Oh, and first!

    Kevin Murphy (0b2493)

  2. when i was a wee lad, they told me in school that legislatures make the laws and control the purse strings.
    how times have changed! i’d love to see some kind of determinative resolution of this controversy.
    i am a straight, pagan libertarian living in rural oregon. when the gay marriage ban made our ballot last year, i was one of the few people around here who voted no. for weeks, my mailbox had been stuffed with material from the religious right, featuring dewy young families sitting on beach blankets, attesting to the proposition that gay marriage threatened their own family relationships. i was unable to figure out how this could be.
    i am ambivalent toward gay marriage. my principal reservation has to do with joint tax returns. if they get to file a joint 1040, their taxes will go down and mine will have to go up to make it a revenue-neutral proposition. from viewing gay marriage as a tax expenditure, it immediately follows that this proposed expenditure will be weighed against alternative possible expenditures in a finite resources context. can we solve global warming and explore mars first?
    i am not at all ambivalent toward smarmy, self-righteous christians. i’m opposed to them.

    assistant devil's advocate (bb6b2a)

  3. i am not at all ambivalent toward smarmy, self-righteous christians. i’m opposed to them.

    Yeah, but at least they have the decency to hit the shift key every once in a while. You got to give them that.

    Xrlq (e7740a)

  4. assistant devil’s advocate,

    Don’t worry too much about those smarmy, self-righteous christians. You’ll be ever so much happier under the coming Sharia. Too bad you won’t be able to complain about it.

    krusher (5bd6ba)

  5. You’ll be ever so much happier under the coming Sharia. Too bad you won’t be able to complain about it.

    Its true that there are some people willing to give up their rights without complaint. But I think you’ll hear quite a bit of noise against the theocrats. Behold the righeousness of the secular!

    actus (10527e)

  6. actus: The noise you’ll hear most is their severed heads hitting the floor.

    Old Coot (caf903)

  7. I do wish it could be explained how one branch of government can order another, supposedly equal branch of government to take an action within the authority of the branch so ordered but not within the authority of the ordering branch. Apparently I missed that lesson in school.

    The “hammer,” of course, is that the court has let it be known that if the legislature does not comply, it will simply force the issue by redeciding the case (or a similar one) in favor of requiring the marriage statutes to include same sex couples.

    The real kicker is that Governor Jon Corzine could queer the whole thing; even if the legislature passed the civil unions law, he could veto it, thus giving the court the in it needs to force matters again.

    Dana (3e4784)

  8. ADE said i am ambivalent toward gay marriage. my principal reservation has to do with joint tax returns. if they get to file a joint 1040, their taxes will go down and mine will have to go up to make it a revenue-neutral proposition.

    My guess is that same-sex couples will be a lot less likely to file jointly and get the tax break that comes with one primary-income earner for married couples, because same-sex couples will be more likely to be equal or near-equal income earners. At least at first — who knows how it will evolve over time.

    Phil (88ab5b)

  9. I don’t understand why you support this ruling. The only right thing is for Government to tell citizens to go to a lawyer and define their relationsship through a binding legal contract. The government in the allocation of federal money can determine from those contracts who to give the money to.

    The only rational opinion is that government should be out of determining what is a relationship. If the NJ SC is going to tell the legislature what to do they should be telling them to get out of the marriage contract business.

    Jack Wayne (acf391)

  10. I believe the legislators could ignore the court’s order and see if the Supreme Court holds them in contempt.
    Perhaps a constitutional amendment defining marriage will be taken more seriously with each activist court rulings.

    I can guarantee you that it won’t be long before men can have multiple wives, adult sisters or brothers can marry, women can have multiple husbands. With this new court philosophy of “expanding freedom” being embraced and promoted – we can expect children to have equal rights with adults and thus 8-yr olds can marry too!
    This is the intent of those who want to destroy our basic unit of society. Mr Satan’s assistant reflects the hatred of christians in our secular world. Satan does indeed want to twist God’s creation, His order and redefine morality. Satan keeps we christians busy but we know the end of the story.

    alexandra2 (015be6)

  11. I believe the legislators could ignore the court’s order and see if the Supreme Court holds them in contempt.

    The supreme court will just fashion a remedy then.

    actus (10527e)

  12. being a “smarmy self-righteous christian” I am of course opposed to gay marriage, I’m also opposed to smarmy self righteous atheists forcing their ways on the rest of us, but that’s not the point.

    the courts have no more right to order the legislature to “create a law” than does the legislature to de-fund the courts……..hey, there’s an idea.

    senorlechero (360f45)

  13. The “remedy” available to the NJSC if the legislature fails to comply is to decide that, in the absence of a civil unions statute, homosexual couples must be covered under the marriage statutes.

    Dana (1d5902)

  14. I’m still waiting for some homosexual couple to present themselves and their valid Massachusetts marriage license to their local parish priest and ask for a nuptial Mass. The priest will, of course, have to refuse, and said couple will then march down to their local personal injury attorney and sue the priest, the parish, the diocese, and the church itself.

    Think such couldn’t happen? Just substitute the word “interracial” for “homosexual” and it will become quite clear. After all: said couple would hold a valid marriage license from a state which recognizes such “marriages,” and in their function of solemnizing marriages, priests are public agents of the state.

    Dana (1d5902)

  15. Just substitute the word “interracial” for “homosexual” and it will become quite clear

    Why ‘just substitute.’? Does this happen when churches refuse to marry interracial couples?

    actus (10527e)

  16. Which Catholic Dioceses in America prohibit interracial marriages, actus?

    If you don’t like Dana’s example, think of what is happending in California where the courts have demanded that Catholic Charities include birth control coverage with their perscription drug plan even though the Church is against artifical contraception. The story is here [had to delete the link since it seemed to upset the spam filter, but look at CNN.com from March 1, 2004] in case you have missed it.

    Still think the courts won’t override religious traditions anytime they discover some alleged “right” of the citizens?

    JVW (3bb2c2)

  17. Which Catholic Dioceses in America prohibit interracial marriages, actus?

    None I dont’ think. Are catholics racists? I didnt think they were.

    Still think the courts won’t override religious traditions anytime they discover some alleged “right” of the citizens?

    Thats a better example, because i’m having a hard time with the ‘replace homosexual with interracial’ thinking. But now its a question of to what extent we can regulate churches when they providen non-church services. So I think marriage is out.

    actus (10527e)

  18. Just substitute “incestuous” or “polygimous” for “homosexual”. If society is forbidden from defining marriage because it is an individual right, what would be the legal basis for banning any of the above?

    Karl (8d1a11)

  19. Actus–

    When Loving v Virgnia came down, the number of states that still enforced the interracial marriage bans was maybe 3, and such bans were supported by very few.

    The difference here is that the court is leading instead of following, even though the political process is moving forward. Or at least was until the courts got involved.

    Consider what the Massachusetts decision did: in forcing the state to allow gay marriage, and in a way that intentionally prevented legislative debate, popular initiative or state amendments, it set off a rash of better-do-it-now-and-fast preventive measures in about 30 other states. States in which slow progress was being made.

    In short, by trying to rush the decision, they managed to short circuit it. In 2000, it was pretty clear that gay marriage would be wideley accepted in a decade or two. Because of impatience, I’d guess that the day is closer to 2050 now.

    So, the Massachusetts and (now) New Jersey decisions help only the politics of the religious right. AND YOU CHEER! With enemies like you, the hard right needs no friends.

    Kevin Murphy (0b2493)

  20. Freedom of association is a right, marriage isn’t. Legal marriage is the people, in their republican sovereignty and at their discretion, deciding that a particular type of relationship is worthy of recognition, approval, and support.

    The demand for legal gay marriage in the face of strong popular opposition is the demand that society issue official certificates of recognition and approval for relationships society doesn’t approve of and doesn’t wish to recognize.

    Karl (8d1a11)

  21. I believe the above mentioned “interracial” analogy is bogus. The 14th Amendment was written to secure for the freedmen the same privileges and immunities enjoyed be whites. I’ve never read a court case and the debate was before my time, but I would assume courts ruled that a black man should enjoy the same privilege, marrying a willing white women, as may a white man.

    Gays have the same marriage rights as straight people, the right to marry a (one) person of the opposite sex who is not already married, is of legal age, and is not a close blood relative.

    The fact that a man wants to marry another man, or his daughter or grandma, or five women at the same time does not mean his “equal protection” has been violated.

    The 14th Amendment doesn’t say anything about gays and I seriously doubt that its framers envisioned it to be a vehicle to address the percieved grievances of gays.

    Karl (8d1a11)

  22. In 2000, it was pretty clear that gay marriage would be wideley accepted in a decade or two. Because of impatience, I’d guess that the day is closer to 2050 now.

    I know. Thats why I don’t like these decisions so much. Because even though they don’t affect a lot of states, they get those states to write anti-gay, and generally anti-unmarried people, amendments into their laws. I think acceptance of homosexuality is a huge generational shift, and that these amendmnets are designed to stave off that shift. Its a shame.

    But you say I cheer. Based on what? I dont know.

    Just substitute “incestuous” or “polygimous” for “homosexual”.

    Hey, how about man on dog? then you can sound as ridiculous as santorum.

    actus (10527e)

  23. The 14th Amendment doesn’t say anything about gays and I seriously doubt that its framers envisioned it to be a vehicle to address the percieved grievances of gays.

    Was the NJ court even talking about the 14th amendment?

    actus (10527e)

  24. The Ohio courts demanded that the legislature replace the “unconsitutional” funding of our public schools via property tax years and years ago. The legislature essentially suggested that the courts get bent, and have done absolutely nothing in response to the demands of the court.

    To me, that’s exactly as it should be. I find it ironic that those that are hyper-concerned by an alleged power grab by the Executive Branch are so amenable to an even more egregious and threatening power grab by the Judicial Branch. I guess it all comes down to the end justifying the means, eh?

    Daveg (a721ef)

  25. I find it ironic that those that are hyper-concerned by an alleged power grab by the Executive Branch are so amenable to an even more egregious and threatening power grab by the Judicial Branch.

    I think the difference is that you can’t really tell the executive branch to ‘get bent’ when they have an army, guantanamo, the NSA, waterboarding, etc… Sure the courts have marshalls. But thats a far cry from what the executive branch has.

    actus (10527e)

  26. Actus,

    Hey, how about man on dog? then you can sound as ridiculous as santorum

    The only thing I can say about Santorum, he purports to be a christian, and his statement was exactly correct as per the bible. At least he’s consistant. Wrong, but consistant, and I can respect him for that.

    Pol Mordreth (5b3071)

  27. I think the difference is that you can’t really tell the executive branch to ‘get bent’ when they have an army, guantanamo, the NSA, waterboarding, etc… Sure the courts have marshalls. But thats a far cry from what the executive branch has.

    But the citizens can ultimately get rid of the Executive branch via the voting booth. What are we to do to counter the judicial branch?

    JVW (e029c8)

  28. But the Executive uses all those nice coercive tools to enforce the laws, whether the laws are made willingly by the legislature or through Judicial extortion. The net result is the same. Unelected and unaccountable committees have no business demanding that laws be enacted to support their social engineering, and it is a damned dangerous path to walk.

    Daveg (a721ef)

  29. I’ll credit my poor prose for people having missed the point. It isn’t that there are some churches or diocese out there that prohibit interracial marriage, but that if you substitute interracial for homosexual, you can easily see how a church which did have such a prohibition could easily be sued.

    Dana (3e4784)

  30. Dana,
    i dont doubt they would get sued, but it really depends on the jurisdiction whether the plaintiffs would win. the gov’t cannot regulate private speech, all they can do is withhold funds. See the Boy scouts vs gay scout leaders. In essence, a private organization has the right to limit its membership. The gov’t has no interest there, as long as there is no public funding.

    Pol Mordreth (5b3071)

  31. “Gays have the same marriage rights as straight people, the right to marry a (one) person of the opposite sex who is not already married, is of legal age, and is not a close blood relative.”

    And Barry Diller has taken full advantage of that right.

    The battle now is to fight for Rick Santorum’s right to marry his dog.

    David Ehrenstein (160138)

  32. Did the N.J. court mention the 14th Amendment?

    The reports I’ve heard said the court decision was based on “equal protection”. The equal protection clause is in the 14th Amendment.

    Karl (669840)

  33. Dana, #29. The church could be sued for being racist but not successfully. It’s pretty well established that the First Amendment permits racist religious views. Heck, there have even been decisions that it protects getting high on mescaline as a sacrament. On the racist issue, though: Bob Jones University?

    As for clergy who solemnize marriages being agents of the state, again no. The clerk who issues the marriage license is an agent of the state. The officiator at the ceremony is merely a witness (the rule is that a marriage must be performed voluntarily, freely and publicly) that the state chooses to give special credence to.

    nk (bfc26a)

  34. karl,

    The reports I’ve heard said the court decision was based on “equal protection”. The equal protection clause is in the 14th Amendment

    The actual decision doesn’t mention the Federal constitution at all. it references only the state constitution and years of state legislative and judicial decisions granting more and more rights to gays. the stste constitution is pretty weak in my opinion, since the authors of that particular passage said in a rulung about slavery 2 (or 3) years later that it was declarative only, like the preamble to the federal constitution.

    however, NJ was pretty much going to lose this one, because they had a domestic partnership law that “was in the interest of equal rights for all” yet only granted some of the benefits NJ has for married couples. the state actually had no affirmative defense other than tradition.

    Were I a resident of NJ, I would be burning up the phone lines to have them repeal all marriage laws, create from scratch a civil contract, and state that the word ‘marriage’ now only has religious meaning in NJ. Don’t think it’ll happen, tho.

    Pol Mordreth (5b3071)

  35. “attesting to the proposition that gay marriage threatened their own family relationships. i was unable to figure out how this could be.”

    It’s a little hard to distinguish at first, after all, us normal Christians think “hey, let them do what they want, rah, rah, rah… We’ll pray for them (most of us know the fate of allowing ourselves the luxury of righteous indignation… it tends to harsh the happiness), and they’re probably right, it won’t affect us…

    Then they allow it in Massachusetts… all of the sudden, they’re reading “The prince and the prince” in grade school, then all of the history books have to be changed to show all of the good gay people have brought to the world, then we’ve got to teach homosexuality in sex ed… finally we figure out that we just got… well, for the lack of a better term… screwed.

    That’s why we pitch a fit about every little thing and call it an attack. Because we understand how the attack starts… Just a nibble on the ear, so to speak.

    Bigdaddy (10ac10)

  36. Re; Decision doesn’t mention Federal constitution.
    Fair enough. Most state constitutions have clauses which echo the federal. I haven’t read this decision or the N.J. constitution, but am assuming this “equal protection” decision cites the state’s equivalent of the 14th Amendment.

    Karl (feae2d)

  37. Then they allow it in Massachusetts… all of the sudden, they’re reading “The prince and the prince” in grade school, then all of the history books have to be changed to show all of the good gay people have brought to the world, then we’ve got to teach homosexuality in sex ed… finally we figure out that we just got… well, for the lack of a better term… screwed.

    That’s right. Better keep the kids away from Christopher Marlowe, Walt Whitman, Arthur Rimbaud, Ronald Firbank, William Beckford, Marcel Proust, Henry James, Gertrude Stein, Tenneesse Williams — the list goes on and on.

    David Ehrenstein (160138)

  38. Marrying a dog?

    That would require a panel of distinguished New Jersey jurists, ACLU representation for the dog, and testimony from profesional animal comunications experts regarding the true wishes of the dog.

    Of course the gender of the dog would’t matter. That is already covered by the equal protection clause.

    Karl (feae2d)

  39. we’ve got to teach homosexuality in sex ed

    Can you produce any evidence that this is happening?

    aphrael (e0cdc9)

  40. NK, whom I respect greatly, wrote:

    Dana, #29. The church could be sued for being racist but not successfully. It’s pretty well established that the First Amendment permits racist religious views. Heck, there have even been decisions that it protects getting high on mescaline as a sacrament. On the racist issue, though: Bob Jones University?

    Bob Jones University is a private school performing a private function. A priest or minister who performs a marriage is performing a function that is partially public.

    As for clergy who solemnize marriages being agents of the state, again no. The clerk who issues the marriage license is an agent of the state. The officiator at the ceremony is merely a witness (the rule is that a marriage must be performed voluntarily, freely and publicly) that the state chooses to give special credence to.

    Don’t know where (or even if) you were married, but my marriage license from the Commonwealth of Kentucky required the signature of the person authorized to perform weddings (authorized by the Commonwealth) to sign the form for my darling bride (or 27 years, five months and eight days) to be legally married. Had he not done so, we would not be married in the eyes of the law. The issuance of the marriage license by itself did not cause us to be married.

    The priest had to be licensed by the state to perform marriages; that makes him, at least arguably in such a lawsuit, an agent of the state.

    And I’d never say that any particular lawsuit could not be won! Just think of all of the idiotic suits which have been won and are screwing up our country. This entire thread exists because some idiots believed they could use the judicial system to force the notion of same sex “marriage” upon an unwilling society; twenty years ago, who would have believed that such a thing stood a snowball’s chance in San Diego of getting anywhere?

    Dana (3e4784)

  41. Karl wrote:

    Marrying a dog?

    That would require a panel of distinguished New Jersey jurists, ACLU representation for the dog, and testimony from profesional animal comunications experts regarding the true wishes of the dog.

    Oh, I don’t know: I’ve met a couple of guys who married dogs! :)

    Dana (3e4784)

  42. Marrying a dog?

    OK, as long as the dog says “I do.”

    Kevin Murphy (805c5b)

  43. Dana, not sure I follow your logic. I need a license to hunt, fish, drive a car or just plain show up for work. Do these activities make me an agent of the state?

    Xrlq (f0c970)

  44. Dana, below is what I think is pretty much a mainstream solemnization of marriage provision designed to comport with the common law and the First Amendment. I “bolded” the parts that I had in mind in my previous comment.

    (750 ILCS 5/209) (from Ch. 40, par. 209)
    Sec. 209. Solemnization and Registration.)
    (a) A marriage may be solemnized by a judge of a court of record, by a retired judge of a court of record, unless the retired judge was removed from office by the Judicial Inquiry Board, except that a retired judge shall not receive any compensation from the State, a county or any unit of local government in return for the solemnization of a marriage and there shall be no effect upon any pension benefits conferred by the Judges Retirement System of Illinois, by a judge of the Court of Claims, by a county clerk in counties having 2,000,000 or more inhabitants, by a public official whose powers include solemnization of marriages, or in accordance with the prescriptions of any religious denomination, Indian Nation or Tribe or Native Group, provided that when such prescriptions require an officiant, the officiant be in good standing with his religious denomination, Indian Nation or Tribe or Native Group. Either the person solemnizing the marriage, or, if no individual acting alone solemnized the marriage, both parties to the marriage, shall complete the marriage certificate form and forward it to the county clerk within 10 days after such marriage is solemnized.
    (b) The solemnization of the marriage is not invalidated by the fact that the person solemnizing the marriage was not legally qualified to solemnize it, if either party to the marriage believed him to be so qualified.
    (Source: P.A. 87‑1261.)

    As you can see, for example, if your church does not require an officiant the state does not either. There would be serious questions of both “exercise” and “establishment” were the state to attempt to make a clergyman its agent.

    nk (06f5d0)

  45. Back 20 comments or so Kevin Murphy said “In 2000, it was pretty clear that gay marriage would be wideley accepted in a decade or two.”

    On which planet? or, as my young son in law says…….”Are you smokin crack?”

    A large majority of Americans belive in leaving people alone “in their bedrooms”. But a gigantic majority of Americans believe that homosexuality is NOT a norm to be enshrined in our institutions.

    Gay marriage will never be “widely accepted”. If it is forced on us by courts our rejection of it will come out in some other way, possibly by embracing “Covenant Marriage”, which I’m sure leftist churches would then pass on to gays.

    My point being a HUGE percentage of us will never “accept” the insane idea of “Gay Marriage”

    senorlechero (360f45)

  46. #33 Churches won’t be “sued” for not performing gay marriages as they are protected under the 1st amendment, but they will loose tax exempt status, which will force many churches to close under the pressure of high property and income taxes

    Leftists and libertarians will of course applaud such an effect

    senorlechero (360f45)

  47. But a gigantic majority of Americans believe that homosexuality is NOT a norm to be enshrined in our institutions.

    I thought civil unions had majority support.

    actus (10527e)

  48. “I thought civil unions had majority support.”

    What made you think that? The pussy-ass “went-into-politics-because-I-couldn’t-hold-down-a-real-job” mealy-mouthed, hypocritical, want to sit on both sides of the fence, leeching, “I’m up-for-election/reelection” political hacks from both parties?

    nk (54c569)

  49. Actus

    Many state legislatures have instituted Civil Unions, but when the people of the states get to vote, Civil Unions are often voted down, Gay Marriage is ALWAYS voted down by large majorities.

    That being said, most of us would not mind civil unions if intituted through elected officials and public vote.

    It’s just a fact that most people do not see gay relationships benefiting society the way marriage does.

    senorlechero (360f45)

  50. NK wrote:

    What made you think that? The pussy-ass “went-into-politics-because-I-couldn’t-hold-down-a-real-job” mealy-mouthed, hypocritical, want to sit on both sides of the fence, leeching, “I’m up-for-election/reelection” political hacks from both parties?

    Don’t hold yourself back so much, nk; what do you really think about them?

    Dana (e28615)

  51. Actus wrote:

    I thought civil unions had majority support.

    Two, and only two, states have civil unions as part of their laws: Vermont and Connecticut. A few more have some sort of domestic partnership arrangements. Vermont’s civil unions law was forced on the state by the courts, in the same manner the NJSC is forcing a decision on New Jersey. Only Connecticut has passed such legislation completely voluntarily.

    On the other hand, 45 states have either constitutional or statutory prohibitions on same-sex “marriages.” Eight states which do not have such properly enshrined in their constitutions are going to put that propection there on election day.

    Dana (e28615)

  52. Dana, #50, wrote: “Don’t hold yourself back so much, nk; what do you really think about them?”

    I think that I should not have had that second glass of ouzo. 😉

    nk (41da82)

  53. i stand correct on civil unions vs domestic partnerships………..I use the two synonymously, but since you don’t, you are correct.

    My point remains the same, and is in fact true that there is absolutely no evidence to support your earlier claims that “In 2000, it was pretty clear that gay marriage would be wideley accepted in a decade or two”. The backlash to which you refer, of states passing laws banning gay marriage, is a response prompted by the vast majorities rejection of the idea of gay marriage……..to us (70% or so) gay marriage is an oxymoron.

    senorlechero (360f45)

  54. sorry Dana, I confused your post for a post by Actus………my point remains

    senorlechero (360f45)

  55. What made you think that?

    Polls. THe fact that Bush likes them.

    actus (10527e)

  56. Is there some fine semantic distinction between civil unions and domestic partnerships that I am missing? Unless there are some important rights that a civil unioned couple enjoys in Connecticut but domestic partners in California do not, it seems a bit odd to distinguish the two.

    Xrlq (358553)

  57. Would a domestic partnership simply be a form of incorporation?

    Dana (3e4784)


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