Like you didn’t see this one coming…
Since the New Jersey Supreme Court clearly (and correctly) stated that it found no fundamental right to gay marriage, it is rather curious that the Court would still demand that same sex couples be included in existing marriage laws or be given the same benefits as married couples through new legislation. If there is no fundamental right, how can the Court force the legislature to create a special statutory right that includes marriage benefits?
Make no mistake; the New Jersey Supreme Court is indeed an activist court. While it may technically sidestep violating the Separation of Powers Doctrine by not directly transforming gay marriage into a fundamental right and by not deciding the name to be used for same sex unions, it still demands the same benefits and privileges of marriage, despite the fact that same sex couples are not eligible.
To clarify, we can draw a comparison. If a wealthy man wanted food stamps, he could argue that since others receive those benefits, he should too. His rights should be protected equally under the law. He could claim discrimination, since he does not receive equal benefits. However, there are eligibility requirements for benefits such as food stamps, so he would be denied. The same is true of marriage benefits. One must be married, or fit within the definition of marriage, in order to eligible.
New Jersey’s marriage law clearly defines marriage and limits it to heterosexual unions. A man and a woman constitute a marriage. This has been the case since the early 1900’s. Therefore, gay couples would simply not be eligible for “marriage” benefits, because they don’t meet the requirements. They aren’t married and have no protected right to get married in New Jersey, so they are patently ineligible.
Discrimination is an ugly word and it triggers emotional responses. However, it is not the correct term as applied to clear cases of ineligibility.
As to Heather’s analysis in Marriage In The News – Ripple Effect, I will respectfully disagree with some points. While courts can certainly strike down existing laws, or judge their constitutionality, that is not the case here. Here, the Court is dictating the language of future legislation and by doing so is creating rights, special rights, for one segment of New Jersey’s citizenry.
I do agree that there will be a ripple effect, in New Jersey and beyond. By inventing rights for same sex couples, the Court has opened the door to people in any other alternative style of relationship to also demand marriage benefits arguing “equal protection,” even though such relationships are not marriages as defined by law.
Outside of New Jersey, there will certainly be backlash. I mentioned some issues in New Jersey Supreme Court Ruling on Same Sex Marriage. However, there is also concern that many whom disagree with this ruling will see another court rewriting law, redefining marriage, and eroding protected tradition. Many will feel compelled to make sure that courts in their own states cannot do the same thing.
As to Senator Clinton, she is correct that gay marriage should be up to each state. However, the one way that this could properly become a federal issue is to amend the Constitution, which will most likely be revisited if courts continue legislating from the bench. On a side note, it is amusing to watch Hillary Clinton dance away from the far left and ever closer to the center as she hopes to become a presidential contender in 2008.
When it comes to President Bush and the Republican Party, I will once again respectfully disagree. The president seems to be seizing on the economy as he campaigns for his fellow Republicans, although he did express his disappointment with the activist court in New Jersey.
While some Republican seats may be lost in the House, I wouldn’t go as far as to say that both are in severe danger, even though I for one would like to see a shake up. I’d like to see more independents or third parties join the ranks, and provide more choices for voters.
Early polls frequently favor Democrats, as do exit polls, but as we have seen in the past, the only “poll” that matters is the final number after the votes have been counted (or perhaps recounted, as the case may be).
Even if Republicans do lose control of the House, it is the Senate that is the most important of the two for Republicans, since controlling it may well allow the president to appoint the next Supreme Court Justice if Justice Stevens retires.
Whoever ends up making the appointment, we can only hope that he or she appoints someone who will abide by the Constitution instead of becoming yet another activist judge and interpreting it according to his or her own agenda. This is the issue, which will in my opinion, ensure that people get out and vote.