New Jersey Gay Marriage Decision
Dale Carpenter at The Volokh Conspiracy
The whole case, then, shows how unstable a middle ground can become in the hands of an aggressive court. The slope on that middle ground seems much more slippery for courts, which demand what they regard as principled reasons for any distinction, than it is for legislatures, which may refuse to budge for no reason other than that the votes aren’t there to do more or because of simple fiat. When legislatures act, they may grant 50 of the 1,000 rights of marriage now, another 25 rights next year, another 100 the year after that, and the rest whenever they get around to it, all without explaining why they’ve acted or failed to act. Courts have a harder time making these distinctions because judicial conventions mandate that they give reasons to support their opinions, and what principled reason could there be for giving 50 of the 1,000 rights of marriage but not another 25 or 100 or all of them? This is the slippery slope phenomenon Eugene points to. It’s not so much a legislative slippery slope as it is a judicial one.Seen in this light, the New Jersey court’s quotation from Justice Brandeis’ famous dissenting opinion praising the states as “laboratories” to “try novel social and economic experiments” is a bit ironic. The New Jersey court now holds that once the state substantially experiments with gay equality it must go all the way, ending the experiment.
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.
His whole post is well worth reading. Carpenter is of course a strong advocate for gay marriage and I think that ads some weight to his analysis here.
I support gay marriage, I think it is a good idea, but I remain quite skeptical that it is a fundamental right, and that it is the duty of the courts, rather than the people through their legislators, to choose how society is organized in this manner.
I am even more sure that using the courts as a whip to try and move the public is counter-productive. There are many states, and this decision will probably cause several more, where gay marriage and other civil union type options have been taken off the table by anti-gay marriage ammendments. This has certainly slowed down the cause of gay marriage advocates by years if not decades in those states.
Partly this view may result in an optimistic view of human nature. I think that the vast majority of people will, if given time to think about it (and assurance that their will as a whole will be honored) will come around to supporting gay marriage. It is a fairly signifigant change to an institution that people regard as extremely important. It will take time. Gay marriage advocates are understandably impatient, but I think that impatience while benefiting a few in some places has hurt a lot of others in a lot more places.
I expect that this decision will also lessen the Democrats chances of electoral success in this election season.
Just a history perspective that may or may not come true in this situation.
I researched background on the civil rights movement for blacks back in the 1960s to see some of the factors that led to the movement gaining momentum.
Obviously, the Supreme Court decisions that segregation in schools and public buses were unconstitutional played a role, and President Eisenhower, despite his disagreement with the school ruling, did enforce it when one school refused to comply with the Court’s order to end segregation “with all deliberate speed.”
It really wasn’t until the various protests that the movement really gained momentum, though. I didn’t find any other Court decisions at the time that affected private businesses which practiced segregation, but the protests and public pressure sure did (how said pressure came about is a story unto itself, in which many whites initially didn’t really support what blacks were after, until children marching in protest were treated harshly by police).
With gay marriage, I don’t think a Court decision of any kind is going to resolve anything. I don’t think we’ll see a situation similar to what happened in the black civil rights movement that changes opinion, though.
What I believe it’s going to take to make people realize how the government has essentially recognized marriage as being an integral part of issues such as taxation, inheritance, insurance and others that impact just about everybody in this country, and that, marriage is not simply an issue of religion (although I would favor allowing religious institutes who do not support gay marriage to have the right to refuse to perform ceremonies in their churches), procreation or other such arguments used as to why gay marriage shouldn’t be allowed.