Why the New Jersey gay marriage decision isn't judicial activism.

The law, lawyers, and the court.
Oct. 25 2006 7:58 PM

A Private Affair

The New Jersey gay marriage decision ain't activism.

Christmas may have come a little early for Karl Rove this year. Casting about for an issue that will make Democrats look bad, in the face of sex and lobbying scandals, staggering government incompetence, infinite deception, and a disastrous war, the "activist judges" on the New Jersey Supreme Court today served up tomorrow's GOP attack ads. Watch for them.

The court found that "the unequal dispensation of rights and benefits to committed same-sex partners can no longer be tolerated under our state constitution," and while the majority stopped short of labeling the right to marry someone of the same sex "fundamental," and refused to call their proposed unions "marriage" (leaving that question to the legislature), you can bet that the justices will be derided by the professional judge-haters as "activists."

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.


The problem is, there is nothing "activist" about this decision. The court could have gone much further; indeed the three dissenters would have done so. The New Jersey court, unlike it's counterpart in Massachusetts, punted the really crucial decision—about whether to call this new thing "marriage" or something different—over to the legislature. And, stay with me now, the court was construing its own state constitution and statutes. It wasn't interpreting federal law or Virginia law.

Whatever the court actually did today in New Jersey, you can't call it activism. Yes, the court directed the legislature to do something to balance the inequities between heterosexual families and homosexual ones. But it offered plenty of space for the legislature to maneuver as it sees fit: "[T]he Legislature must either amend the marriage statutes to include same-sex couples or create a parallel statutory structure, which will provide for, on equal terms, the rights and benefits enjoyed and burdens and obligations borne by married couples." It's for the electorate, not the courts, to determine what that legal regime will become. Moreover, the court "will not presume that a separate statutory scheme, which uses a title other than marriage, contravenes equal protection principles, so long as the rights and benefits of civil marriage are made equally available to same-sex couples."

The future battle is not over the bundle of rights and obligations granted to same-sex couples. The court finds no rational reason to deny them. The only fight—to be duked out in the legislature—is what to call the thing.

There is no doubt where the court's sympathies rest.  The burdens of loving, committed couples forced to cross-adopt each other's children and endure excessive insurance premiums, as well as denial of medical privileges, are all bemoaned. The court celebrates New Jersey's spirit of tolerance and openness. But the court also notes that, unlike other state courts that have considered this question, the state of New Jersey here proffers no real argument for limiting these rights to heterosexual couples. The state advances neither of the two traditional arguments against gay marriage: that marriage should be reserved for procreative purposes, and that optimal child-rearing happens in heterosexual couples. And, as I have argued before, once you reject those arguments (which you should; neither makes sense) there is no rational reason to deny the privileges and rights of marriage to gay partners.

This case is about New Jersey. It's about that state's constitution and that state's statutory scheme, which rejects the treatment of homosexuals as "second class" citizens. This 4-3 decision reflects a compromise position between mandating gay marriage and tolerating bigotry. It also happens to reflect the preferences of the majority of New Jersey citizens—not that this matters for legal purposes, but it should certainly diffuse claims about judicial activists who override the will of the people.

If you care at all about states' rights and state autonomy, read this decision. If you believe in judicial minimalism, read this decision. If you think judges should engage in careful scrutiny of state law, read this decision before blasting it as activism. This was a state court taking care of state business.

Memo to Karl Rove: Those who oppose this decision aren't opposed to judicial activism. They are opposed to judges.



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