Very early this morning, indeed, Stephen posted on gay marriage.  Generally, I agree with the points that he's made (that the judiciary deciding and attempting to settle contentious cultural issues is not ideal, that issues such as gay marriage would be much better handled by legislatures).

However, I did want to make a point on this subject, which ties into the usual "judicial activism" claims made by conservatives, many of whom object to the manner in which a variety of decisions have been reached (i.e., by very loose readings of the constitution or law in question), but some of whom also seem to object to the decisions themselves, more than the process.

For as much as we may all agree that issues like whether or not to make gay marriage (or civil unions, or even legally-recognized and enforceable partnership agreements) available to gay couples would be best handled by the elected representatives of the people, the fact is that unlike the position before Roe, we have not seen much movement towards allowing gay partnerships in some form in the states, without judges leading (or "leading," depending on your view).  Where states have wording in their constitution in, say, an equal protection clause to the effect that "All persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness," like Article I, Paragraph 1 of the New Jersey Constitution, and a state via legislative inaction has maintained a ban on the constituent members of a formalized (gay) partnership having access to certain benefits that would automatically be accorded to those in a (heterosexual) marriage, it is fairly clear to me that the court remains the principal vehicle for resolving what on the face of it looks like a set-up that is probably unconstitutional (this is assuming, of course, that the electorate is not so outraged about inaction on the issue that they will vote on that single issue in the next election, to deliver a legislature that will resolve it).

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There was a lot of outcry after the New Jersey decision was handed down last year, mainly because people didn't like the court dictating action to the legislature (from what I saw, anyway).  Unfortunately, if we are to have checks and balances in our system, I'm afraid that to some extent, such "dictating" is necessary-- otherwise the court would be toothless, and would essentially serve the same function as a well-regarded professor at a top-tier law school (i.e., essentially just saying where he thinks legislative-- or executive, for that matter-- action fails to gel with the constitution, unable to promote any actual reconciliation of the constitution and the legislative body's action, or inaction).  Personally, while I was not wild about the aspect of the decision that imposed a time frame for the legislature acting, ultimately, I felt that the decision was the right one because a) it gave recognition to the wording of the constitution and what that must mean in practice and b) it did not dictate a precise course of action to the legislature (i.e., it did not mandate gay marriage, but rather said that non-accordance of certain benefits to same-sex couples in committed relationships violated the constitution-- and then told the legislature to come up with a way of fixing that).

I think it is worth mentioning, when looking back on what happened in New Jersey, also, that despite the fact that the court's decision was issued as one evidencing "dissent," from what I understood, the issue at stake in the dissent was not whether New Jersey law had to be amended such that members of committed same-sex relationships would be accorded the same basic benefits under state law as were members of heterosexual marriages.  It was in fact whether it was possible to do this, or not, without allowing "gay marriage" per se.  Thus, in terms of the court's basic decision (that the law needed to be amended to reflect that committed gay couples were not being protected by Article I, Paragraph 1), there was unanimity-- laws preventing gay partners from receiving the same benefits as spouses were unconstitutional.

This suggests that with regard to New Jersey, this decision was a lot less controversial than was, say, Roe-- the whole court agreed on the basic point.  Another salient point with regard to the New Jersey decision is that polling from before the rendering of the judgment indicated that in fact,  allowing gay partnerships in some form had popular appeal-- e.g., a Rutgers-Eagleton poll from June 2006 showed that 49% favored allowing actual gay marriage, whereas 44% opposed it; and a February 2006 Zogby poll showed that 56% supported gay marriage, while 39% opposed it.  If those polls are to be believed, it would appear that on a straight democratic basis (i.e., majority rule), civil unions at least should have been made available to gay couples anyway.

Otherwise put, while I generally agree that judges ruling on cultural issues is problematic, where gay marriage/civil unions are concerned, evidently in one major case, this may be an overplayed concern.  Ultimately, unlike in Roe, where first of all, a law was being made for the whole country without regard to cultural differences between, e.g., the South (which remains largely pro-life) and the West (where the first steps towards legalizing abortion were taken), and second of all, it was harder to find a majority who favored legalized abortion with virtually no limits (as indeed it is now), in New Jersey, the court was evidently on the side of the majority-- and agreed unanimously on the basic point of Article I, Paragraph 1 (i.e., that you can't give committed heterosexual partners certain rights, and committed homosexual partners others, or none).

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