Judicial Restraint?

As predicted, Republicans and assorted right wing demogagues are crying loudly about the New Jersey Supreme Court decision giving equal protection under the law to same sex couples.

The court stopped short of declaring gay marriage legal in New Jersey and left it up to the legislature to decide what to label this new legally equal arrangement. A minority of the court, including the retiring Chief Justice, did want to declare it marriage but the majority, by 4-3, decided to strike a compromise.

One set of comments I read was by Peter Sprigg, vice president for policy at the Family Research Council. In what appeared to be an editorial written for USA Today Sprigg manages to demonstrate his ignorance. This is one article but it’s pretty typical of what I’ve heard.

The title of the editorial is “Where’s Judicial Restraint?” Judicial Restraint is what the right wing complains about whenever the court satisfies its charter to protect the rights of the minority by ruling against the conservative position. Courts never have to protect the rights of the minority from the liberal position because liberals don’t stomp on minority rights!

Anyway, some quotes from the editorial with commentary.

“The New Jersey Supreme Court has professed respect for judicial restraint by refusing to change the definition of ‘marriage.’ But they have imperiously commanded the state Legislature to either redefine marriage itself, or create a ‘statutory structure’ (such as ‘civil unions’) to grant 100% of the legal rights and benefits of marriage to same-sex couples.”

Actually what the court has done is order the legislature to redress what it has declared a violation of Article I, Paragraph 1 of the New Jersey State Constitution which states:

“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.”

The court said:

“Article I, Paragraph 1 protects not only the rights of the majority but also the rights of the disfavored and the disadvantaged; they too are promised a fair opportunity for ‘pursuing and obtaining safety and happiness.’"

This is equal protection under the law for “ALL PERSONS” and, in the state of New Jersey, that includes gays and lesbians. The New Jersey Supreme Court is the final arbiter of the interpretation of New Jersey law and especially the interpretation of the New Jersey State Constitution and it certainly can direct the legislature to redress a violation of that law or that constitution. Note that most folks in New Jersey just sort of nodded their heads and went, “yeah, makes sense to me.”

“This is not judicial restraint. Courts have no power to command the legislative branch to enact a particular law.”

The court didn’t order the legislature to “enact a particular law.” It directed the legislature to redress a violation of the constitutional rights of citizens of the state of New Jersey and this is clearly within the scope of the court's authority. This is typical of the kind of misinformation that the right wing throws out constantly. I’m certain Sprigg understands the difference, he’s just hoping those reading his article don’t.

“The New Jersey Legislature should therefore simply ignore this command. Indeed, we urge them to go further and follow the lead set by 19 other states, by amending the state constitution to define marriage as the union of a man and a woman.”

LOL!! The New Jersey Legislature should simply violate the law and disregard the court? How long do you think they’d be the legislature if they did that? About until the next election which will be in 2007.

As for a constitutional amendment, the people of the state of New Jersey are overwhelmingly opposed to such an amendment so I guess the legislature should ignore the will of the people too? I wonder if Sprigg is one of those Evangelical Christians that think the bible should take precedence over the will of the people. Yo Sprigg, go perform a reproductive biological function on yourself.

“…the burden of proof must rest upon the advocates of homosexual unions to demonstrate that such unions (gay marriage, civil unions etc.) benefit society.”

Wrong again Spriggy baby. It is not the roll of the individual to benefit society or the government; it is the roll of government to benefit the individual. Allow me to quote the Declaration of Independence.

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”

Get it? Governments are instituted to secure the rights of the individual. Men are endowed with unalienable rights and governments exist to secure those rights. Among those rights are the pursuit of happiness and the pursuit of happiness often consists of tying the right bond with the right life partner.

“Because homosexual unions never result in natural procreation and never provide children with both a mother and a father, this is a burden (provide a benefit to society) they simply cannot meet.”

Aside from the fact, as pointed out above, that homosexual unions in our democracy have no need to provide a benefit to society, many marriages don’t produce children, nor could they ever have been expected to produce children.

Older folks, often in their 70’s or 80’s, marry for companionship and financial tax benefits. Would you want to call these unions something other than marriage? Some people are physically incapable of producing children yet they marry, often with plans to adopt children. Would you want to call these unions something other than marriage?

To be honest with you I’ve not surprised at the blithering idiocy coming out of the right wing. I am disappointed in USA Today and Yahoo for publishing this tripe. There may in fact be valid arguments against gay marriage or valid arguments against a court decision in favor of equal rights for gay couples but there aren’t any in this article. Come to think of it, I’ve never heard of any, anywhere, at anytime.