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New Jersey Supreme Court Rules that It Won't Rule on Gay Marriage

The Supreme Court of New Jersey has ruled by a 4-3 majority that it is not the body that should legalized gay marriage. Instead, the court has given the New Jersey legislature six months to come up with appropriate legislation legalizing gay marriage.

So, are these supreme court justices saying gay marriage should be legalized but that they can't do it?

This is one sticky wicket.

Update: The Reuters report confirms what I suspected:

TRENTON, New Jersey (Reuters) - New Jersey's Supreme Court on Wednesday granted same-sex couples the same civil rights afforded by heterosexual marriage and ordered state lawmakers to decide within six months if they want to change the state's definition of marriage.


The nuanced 90-page ruling was neither a definitive victory nor a defeat for gay marriage, which has faced legal and political roadblocks in much of the United States and is legal only in Massachusetts.

As does the AP report:

New Jersey's highest court ruled Wednesday that gay couples are entitled to the same rights as heterosexuals, but that lawmakers must determine whether the state will honor gay marriage or some other form of civil union.


Advocates on both sides of the issue believed New Jersey posed the best chance to become only the second after Massachusetts to legalize gay marriage because its high court has a history of extending civil rights protections.

Instead, the Supreme Court stopped short of fully approving gay marriage and gave lawmakers 180 days to rewrite marriage laws to either include gay couples or create new civil unions.

"The issue is not about the transformation of the traditional definition of marriage, but about the unequal dispensation of benefits and privileges to one of two similarly situated classes of people," the court said in its 4-3 ruling.

The judicial branch is limited to interpreting current law, not dictating to the legislature what laws should be passed. Once again, a liberal court overreaches and legislates from the bench. This alone is an argument for getting out and voting for the Republicans on November 7th. Can you imagine the US Supreme Court loaded with justices like these? President Bush won't be president forever. If a Democrat succeeds him and is aided by a Democratic congress, we'll all be in deep trouble.

Update II: Rutgers has posted the ruling here.

Update III: Jay at Stop the ACLU offers analysis on the significance of the ruling:

New Jersey is one of only five states where there is no law or constitutional amendment specifically barring same-sex marriages. This ruling changes the dynamic of the debate significantly. However, this ruling is significant because it impacts things on a national level. Massachusetts has a law barring out-of- state couples from wedding there if their marriages would not be recognized in their own states. New Jersey has no such law. Gay-rights groups are already poised for lawsuits in which couples marry in New Jersey and sue their home states to recognize their marriage. Currently the Defense Of Marriage Act would prevent something like this. However, groups are poised to challenge this now.

Update IV: Don Surber weighs in:

There aren't 3 branches of government? The judiciary can just order the legislative branch about like that?


Hmm. Very odd. Very queer.

Update V: Ed Whelan at NRO's Bench Memos has posted a few comments.

Update VI: Allah has lots of rambling analysis (his words, not mine), which includes the following:

Rather than present an independent argument for why the right to equal treatment in domestic law is important to gays, though, the court proceeds to cite a laundry list of anti-discrimination statutes passed by the legislature as evidence. Which is odd: the whole point of constitutional rights is that they're supreme to, and immune from, the vicissitudes of majoritarian impulses. Framing the right in terms of the anti-discrimination laws suggests that if those laws didn't exist -- or were repealed -- the right to same-sex unions would disappear with them. Also odd, as noted at the bottom of numbered page 48, is that the state didn't proffer any procreative rationale to justify the statute. That argument's been a winner in other jurisdictions. Without it, the state had nothing except the fact that gay-marriage is banned in most of the rest of the country. To which the court, on numbered page 55, essentially responded: we're different.

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Comments (46)

Basically they're saying th... (Below threshold)
mcg:

Basically they're saying that they can create a parallel civil union construct as long as it has exactly the same rights and privileges.

Kim,As near as I c... (Below threshold)
yetanotherjohn:

Kim,

As near as I can tell they are saying that 1) there is a fundamental state constitutional right for gays to be "enjoy the same benefits as marriage" in New Jersey, 2) that laws against that right are therefore unconstitutional and 3) the state legislature has 180 days to get their law "in compliance".

Some of the money quotes.

'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 samesex
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 samesex
couples, whether marriage or some other term, is a matter left to the democratic process.'

At this point, the Court does not consider whether committed same-sex couples should be allowed to marry, but
only whether those couples are entitled to the same rights and benefits afforded to married heterosexual couples.

To bring the State into compliance with Article I, Paragraph 1 so that plaintiffs can exercise their full
constitutional rights, the Legislature must either amend the marriage statutes or enact an appropriate statutory
structure within 180 days of the date of this decision.

http://howappealing.law.com/LewisVsHarris.pdf

They're doing exactly what ... (Below threshold)
Mark:

They're doing exactly what the Mass. Supreme Court did. They're legislating from the bench and telling the politicians to come up with a law allowing it. It's New Jeersey, what do you expect?

Fine: If I were a member o... (Below threshold)
John Hansen:

Fine: If I were a member of the NJ state legislature I would pass a law entailing

"It is hereby declared that any unmarried male of legal age in in the state of New Jersey may legally marry any unmarried female of legal age in the state of New Jersey regardless of the stated sexual preferences of said male or female."

This looks like equal protection under the law to me.

This is one sticky wicke... (Below threshold)
astigafa:

This is one sticky wicket.

Wrong metaphor. It's football season, and that was clearly a punt.

I think I may like where th... (Below threshold)
engineer:

I think I may like where this is going.

If a surviving spouse of a married couple inherits his/her estate without paying a death tax. Then homosexual couples, with a 'civil union' would be assured the same thing, ie. no death tax. Then wouldn't I be able to enter into the same type of 'civil union' with one of my children and therefore have him/her avoid the death tax also? The same with spousal benefits from Social Security. Legally, what would be the difference between the 'civil union' contract between a homosexual couple and me and my same sex offspring, except for not having sex?

This is a terrific ruling. ... (Below threshold)
nehemiah:

This is a terrific ruling. It should help us in keeping both houses of congress, and help set in motion for Justice William Pryor to be the main player for John Paul Stevens' spot.

The post right above mine is spot on.
Everyone can marry (equal protection).
Marriage is between an unmarried male and an unmarried female (this is the sentence that democrats fear -- they don't like it, but they dare not go against it).

Or they intentionally walke... (Below threshold)

Or they intentionally walked the issue.


OK, the football metaphor sounds much better.

I'm confused: Isn't there a... (Below threshold)
Socratease:

I'm confused: Isn't there a separation of powers between the judicial and legislative branches? If so, what business does the court have to order the legislature to pass a law dictated by the court? If I were a NJ legislator, I'd tell the supremes to go fornicate themselves, they can try to make their own laws or declare marriage to be unconstitutional if they dare.

Kim writes;"If a D... (Below threshold)
John:

Kim writes;

"If a Democrat succeeds him and is aided by a Democratic congress, we'll all be in deep trouble."

Oh my god! Then the queers can get married!!! Run for the hills! Married queers! Heaven help us!

Seriously... Get a grip people.

Some guy on the other end of town getting married to a guy is not going to change your life any more than some lady on the other end of town getting married to her boyfiend.

Be brave, and butch up.

John

That's right, John. We're ... (Below threshold)
Socratease:

That's right, John. We're only talking about an institution older than human history that is inextricably linked to civilization and the perpetuation of the species. What's the worst that could happen if a few progressive eggheads in robes tinker with it to bring it more in line with their conception of Utopia? The fact that the overwhelming majority of voters in a supposed democracy disagree with them just shows how backwards this country is.

I wish they'd do this in a ... (Below threshold)
Baggi:

I wish they'd do this in a conservative state. I'd love to see the Legislature tell the court to go and pound sand.

It amazes me that the Judiciary branch thinks that it can force the Legislative branch to make laws. Absolutely amazing.

Okey dokey if queers can ma... (Below threshold)
jhow66:

Okey dokey if queers can marry then I can have as many wives as I want. Right?

This Court is in line with ... (Below threshold)
nogo postal:

This Court is in line with our President as far as Civil Unions

Elisabeth Bumiller
The New York Times
Published: October 26, 2004

"President Bush said in an interview this past weekend that he disagreed with the Republican Party platform opposing civil unions of same-sex couples and that the matter should be left up to the states."

"Mr. Bush has previously said that states should be permitted to allow same-sex unions, even though White House officials have said he would not have endorsed such unions as governor of Texas. But Mr. Bush has never before made a point of so publicly disagreeing with his party's official position on the issue."

John- where do we draw the ... (Below threshold)
Chasen:

John- where do we draw the line? Gay marriage... then what, legalizing polygamy? Then what?

Actually, I think the NJ Su... (Below threshold)
Langtry:

Actually, I think the NJ Supremes are saying that it isn't up to the court to legilate from the bench. Decisions about Gay Marriage, Adoption, etc. should be up to the people of the State of New Jersey. Whether that is through their electied officials (legislative law-making) or via direct Intiative (putting the issue on the ballot at the next General Election). I'm a Conservative, and I agree with this reasoning.

ah..jhow66..you are making ... (Below threshold)
nogo postal:

ah..jhow66..you are making an assumption that a lot of women want to marry you..
Move to Utah..become a Morman..live in the shadow..and your wild dream may come true....

Not so fast, nogo postal. B... (Below threshold)
mcg:

Not so fast, nogo postal. Bush made it clear that states should be allowed to do so, not forced to do so. In other words, he also said they should be allowed not to do so.

Langtry: you must be kiddin... (Below threshold)
mcg:

Langtry: you must be kidding. The courts didn't leave it up to the legislature to decide. They flat-out told the legislature what to do, gave them 6 months to do it, and placed firm conditions on a satisfactory outcome. They have cut off any contradictory relief short of a constitutional amendment that shouldn't have been necessary in the first place.

So I can "marry" my mother ... (Below threshold)
Old Coot:

So I can "marry" my mother (or father) to share the benefits of my health insurance? Or "marry" my sister (or brother) to provide the spousal benefits of Social Security? Heck, maybe I can "marry" all of them at the same time and everybody wins.

Yeah, let's elect more Democrats so they can appoint more judges like those in NJ.

So what are these "God's... (Below threshold)
914:

So what are these "God's" of the court going to do if the legislature refuse's to do their dirty work?

Lift up their sanctimonious robes and reveal they are really transexual's?

The absurdity continue's.

...then I can have as ma... (Below threshold)
VagaBond:

...then I can have as many wives as I want. Right?

jhow66...The problem is at least one will have PMS at any given time. If you can handle that, bro...more power to ya.

FYI - I just heard on Fox (... (Below threshold)

FYI - I just heard on Fox (John Gibson) that someone, sorry I missed who, has filed legal impeachment papers against all 7 Supreme Court judges.

There seems to be a lot of ... (Below threshold)
nogo postal:

There seems to be a lot of confusion over what the judges said..so here it is


HELD: 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 samesex
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 samesex
couples, whether marriage or some other term, is a matter left to the democratic process.

Sara got to this one before... (Below threshold)
Zelsdorf Ragshaft III:

Sara got to this one before I did, but it seems impeachment is for more than just Presidents. As there is no natural reason for homosexual activity, it should not be protected by law, nor should it be given the same legal protection given the circumstance of marriage. If you seek equal protection, you must prove equal need.

I love the "Don't mess with... (Below threshold)
John:

I love the "Don't mess with the traditions of marriage crowd". Or the "its as old as humanity" crowd.

Please.

We talking about marriage back in biblical times when you could have as many wives as you want?

Or is is chatel marriage where a woman was your property?

Or the kind of marriage practiced until the mid 60's where white and colored people could not get married?

All three of those forms were practiced and legal in this country at one time or another.

I personaly miss the good old days when my wife would have been my property... In that regard, I'm all for traditional values.

John

So what are these "God's... (Below threshold)
Socratease:

So what are these "God's" of the court going to do if the legislature refuse's to do their dirty work?

Maybe they'll hold the legislature in contempt of court. But then the legislators are representatives of their constituency and just doing their bidding, so maybe the court should hold the entire electorate in contempt.

Oh, wait, they already do.

Some guy on the other end o... (Below threshold)
seamus:

Some guy on the other end of town getting married to a guy is not going to change your life any more than some lady on the other end of town getting married to her boyfiend.

Actually, john, it is a bit of an issue. As I'msure you know, most Republicans are closet homo's. And they're absolutely terrified that if Congress doesn't make it uncostitutional, they may just give into their impulses and marry another guy.

We're only talking about an institution older than human history

Really, so-crates? Older than human history? So what exactly was getting married prior to humans? And I'm sure you don't believe in evolution, or science, or that the earth revolves around the sun, but I'd like to think we don't have to base our lives on the mating practices of pre-historic creatures. It's bad enough you dimwitted kooks want us to base our lives on a five thousand year old Palestinian fairy tale.

"But id like to think We... (Below threshold)
914:

"But id like to think We dont have to base our live's on the mating practices of pre-historic creature's"

We should not be forced to base our lives on the abnormal mating rituals of Adams and Steves either.

Its bad enough You dimwitted leftard kooks want to raise My taxes..

Actually, seamus, "history"... (Below threshold)
Socratease:

Actually, seamus, "history" is usually considered to start when written records were set down by humans. (Preceeding eras are quaintly known as "pre-history".) As for "Palestinians", I wasn't aware there was such a nation before the pyramids were built, since there still isn't one today.

Now, me, I'm not arrogant enough to think I'm smarter than the last 300 generations of the human race, as well as the current global majority, which has found heterosexual marriage to be a valuable institution and worth protecting and encouraging. But what do I know, I just help build machines that accelerate sub-atomic particles to relativistic speeds, I'm obviously not as smart as a New Jersey Supreme Court justice who feels supreme enough to ignore all that and toss out millenia of tradition without a thought to possible consequences.

I used to think the issue o... (Below threshold)
gozorak:

I used to think the issue of gay marriage was big deal and that to legalize or accept in law such marrriages would be horrible..but then I thought to question why it would be so horrible. It really wouldnt. I really dont care and I really dont have a problem with it anymore. And and top of it all, not that I would ever want to be on top, Its one more thing that would drive the savage Islamic enemies of western civilization bonkers.

"As there is no natural rea... (Below threshold)

"As there is no natural reason for homosexual activity..."

Said like a true bigot.

Best to think a bit more ab... (Below threshold)
bill:

Best to think a bit more about the consequences of the upcoming election ... Sen Biden said no more originalist judges will ever make it out of the Senate Judicial Committee if he is chair. Can you afford to sit this one out while the court continues to get stacked with liberal judges?

The Court did say there was... (Below threshold)
Mitchell:

The Court did say there was NO fundamental right to gay marriage, but then basically gave that right when the called for mandatory benefits in exact form as provided in the institution of marriage.

It's a bunch of bunk.

True story: there were two sisters who never married, and lived together, one of whom died with a great deal of property which she left to her lifelong housemate, her sister. The government is going to tax her to the hilt on this bequest, but the State of New Jersey will give two gay folks more rights--and give some tax relief just as married folks get.

How about your slippery slope? The exceptions will swallow the rule, and the institution of marriage.

If there is nothing so unique, solemn, and important in traditional marriage, the only reason to get married, gay or straight, will be for a f'n tax break.

This is so foolish. Our ancestors who never conceived of such aberrant behavior, are spinning in their graves.

There is no "natural reason... (Below threshold)
Scott:

There is no "natural reason" for homosexual activity.

Oh yes there is. I like it.

Deal with it.

And some people "like" booz... (Below threshold)
Mitchell:

And some people "like" boozing the bottle, gambling, porn, being depressed, psychotic, sexually predatory.

Do we indulge all aberrant behavior equally, or just your favs?

Let the PEOPLE decide if th... (Below threshold)
Justrand:

Let the PEOPLE decide if they want the institution of marriage changed. Simple.

Of course, out here in the People's Republic of Kalifornia, we are used to "the People" voting for or against something...and then having one or more JUDGES decide we had NO RIGHT to vote on the issue. *sigh*

But that doesn't mean that democracy couldn't work in OTHER parts of the country!

Alice, you are in wonderlan... (Below threshold)
Mitchell:

Alice, you are in wonderland. Link is dead.

Like the Dem Party:Speaker Pelosi and Chairmen John Conyers Jr. at Judiciary, the convicted-of-bribery-and-perjury-and-impeached-as-a-judge Alcee Hastings at Intelligence, Charlie Rangel at Ways and Means, Henry Waxman at Government Reform, Frank at Financial Services...

Isn't it amazing that the N... (Below threshold)

Isn't it amazing that the New Jersey Constitution has survived for over 200 years with NOT ONE of the hundreds of judges who have adjudged it ever noticing this requirement until now?

It shouldn't have any impact on the Senate race, though. Tom Kean, Jr. has no position on gay marriage or civil unions, and Bob Menendez is keeping an open hand before deciding his own.

I promise to explicate the "Secular Case Against Gay Marriage" again, after the elections. Think of it as your Christmas present.

It's official.. Lee and Rah... (Below threshold)
914:

It's official.. Lee and Rahm Emanuel are engaged!

"Theres no natural reason for homosexual activity."

Scott "Oh yes there is, i like it."

Deal with it.

Your sick, Deal with it.

Isn't it amazing that th... (Below threshold)
Brian:

Isn't it amazing that the New Jersey Constitution has survived for over 200 years with NOT ONE of the hundreds of judges who have adjudged it ever noticing this requirement until now?

More amazing than taking almost 100 years to notice that slavery is wrong?

I'm obviously not as smart ... (Below threshold)
seamus:

I'm obviously not as smart as a New Jersey Supreme Court justice who feels supreme enough to ignore all that and toss out millenia of tradition without a thought to possible consequences.

Look at that! A republican who can actually speak the truth! Congratulations!!!

If pre-historic means before history was written down, then how do you know marriage is older than human history? No writeen records would mean there's no marriage certificates laying atound. so how do you know? Do you think just maybe it's possible you're applying your morality to all of human history without any actual proof? Exactly.

And what does the Palestinians being a nation have anything to do with anything. theres no such country as Africa, but there are African folk tales.

I just help build machines that accelerate sub-atomic particles to relativistic speeds

That's nice. I can turn a wrench too.

To Z. Ragshaft -No... (Below threshold)
Russ Buchanan:

To Z. Ragshaft -

No "natural" reason for homosexuality? Thank you Dr. Ragshaft, but I believe the jury is still out on that one. Seems to me there must be something a bit more compelling than naughtiness for naughtiness' sake. Do you really think someone would choose an orientation that would force him or her to fight tooth and nail for rights we "naturals" take for granted?

Russ Buchanan

well, there is no NATURAL r... (Below threshold)
gozorak:

well, there is no NATURAL reason for my being a cunning linguist but my GF sure doesnt complain. The fact that there is no NATURAL reason for it doesnt mean that there is no reason for it. There is..believe me. And those of you who are tools of the moralitly police are every bit as bad as those tools of the left who look to the power of government to force their way on the rest of us.

And Gozorak, beware...... (Below threshold)
John:

And Gozorak, beware...

Even thoough your girlfriend might find you a cunning linguist, it's still illegal to be a cunning linguist in some states and municipalities. Thank goodness for conservatives to spoil very clever free speech...

John

No "natural" reason for hom... (Below threshold)
seamus:

No "natural" reason for homosexuality?

Ummmmm....if two people engage in it, there is clearly a naturalreason for it.




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