Right Side of the Rainbow

ADDITIONS BELOW

From the court’s opinion:

Denying committed same-sex couples the financial and social benefits and privileges given to their married heterosexual counterparts bears no substantial relationship to a legitimate governmental purpose. The Court holds that under the equal protection guarantee of Article I, Paragraph 1 of the New Jersey Constitution, committed same-sex couples must be afforded on equal terms the same rights and benefits enjoyed by opposite-sex couples under the civil marriage statutes. The name to be given to the statutory scheme that provides full rights and benefits to same-sex couples, whether marriage or some other term, is a matter left to the democratic process.

ADDED—

Openly gay law professor Dale Carpenter, who notes that the New Jersey Supreme Court based its decision in part on the state’s history of pro-gay legislation:

While the result in this case is surely a good one for gay families, it may chill experiments in other states where legislators might fear that they cannot move incrementally toward equality for gay couples without surrendering the judicial basis for any remaining distinctions. I doubt that’s really a great danger in most states, where courts tend to be less aggressive than New Jersey’s and where the standard rational-basis test should allow legislatures to proceed incrementally, but this opinion will surely be cited as a reason not to grant any rights to gay couples.

Same-sex marriage supporter Steven Den Beste of the Chicago Boyz:

… our compact with one another is that if the process was reasonably honest and if everyone participated, the losers will concede defeat. Of course, they may try to work within the system to change those decisions, and that has happened many times. But the compact is that such decisions change because the majority agree with the change, and the activist minority will work to convince the majority that change is needed, and will accept their defeat in the mean time.

Some activists in this country have been breaking this compact. It’s been a particular problem with leftists over the last 35 years. Instead of trying to convince the majority that certain things should change, they’ve been making an end-run around the electoral system and getting those changes made via activist judges.

Irrespective of the merits of individual decisions, the basic problem with this is that it cheats the electorate by forbidding them from participating in the process of collectively making those decisions. And the “losers” don’t concede defeat, because they never got their chance to participate in the decision.

As Den Beste notes, that was the case with Roe and abortion rights, wasn’t it?

Law professor Ann Althouse:

The urgent subject now is: How will this affect the election? I assume most people will say this helps the Republicans. Is that so and if so, how much will it help and where exactly? Clearly, it goes beyond New Jersey, because it lights a fire under social conservatives and those who worry about overactive judges.

Oh, Ann, getting voters exercised over judicial usurpation of democratic authority is just another one of Karl Rove’s Jedi mind tricks! It doesn’t have anything to do with, you know, actual court decisions.

My view here is the same as it was when the Massachusetts Imperium handed down its decree: The result is fine; the method is not.

Technorati tags: Gay+marriage, same-sex marriage, courts, judges