The Brecher Brief: Married and Gay in New Jersey

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October 25, 2006

Married and Gay in New Jersey

In a unanimous decision today, the New Jersey Supreme Court all but decided that gay marriage was a fundamental right (at least in New Jersey). The Court gave the legislature 180 days to enact a law that, if it didn’t outright affirm the legality of gay marriage in name, must do so in all other particulars except the name.

Good for them—and good for us.

I don’t know anything about New Jersey law, but the ever clever and rights-stingy Eugene Volokh seems to tolerate (if not fully accept) the court’s legal reasoning. Two kinds of arguments were made: a fundamental rights claim, and an equal protection claim. The first Volokh regards as an unsupportable “cultural” interpretation (the usual definition of fundamental rights being those rooted in tradition). But his deepest concern is with the second claim:

On the second claim – equal protection – the New Jersey courts have interpreted the state constitution in ways that are very different from the federal precedents and many other state courts. New Jersey does not follow what the court calls the “rigid” three-tiered scrutiny of the federal equal protection cases: “strict scrutiny” for race classifications, “intermediate” scrutiny for sex/gender classifications, and “rational basis” for almost every other kind of classification. (In fact, the New Jersey state constitution does not even contain an explicit equal protection guarantee.) Instead, the state courts have adopted a “flexible” test that calls for distinctions between “similarly situated people” to be justified by “a substantial relationship to a legitimate governmental purpose.”

The problem with this argument is that it puts Gays and Lesbians, people whose fundamental identity has been assigned to them by nature, in the same legal category of guys who don’t want to wear motorcycle helmets. It seems to assume that the desire to marry, even the condition of being homosexual, is a matter of choice to be controlled by state interest.

Volokh is not interested here in ghettoizing the gay community. His ultimate goal is to preserve a middle ground, where states are free to experiment with such social policy, without having tentative or provisional steps in that experimental process get cemented into law. The actions of aggressive courts like New Jersey’s, he fears, will have a chilling effect on any legislature in the future that might want to push the social policy envelop a bit. He writes:

Seen in this light, the New Jersey court’s quotation from Justice Brandeis’ famous dissenting opinion praising the states as “laboratories” to “try novel social and economic experiments” is a bit ironic. The New Jersey court now holds that once the state substantially experiments with gay equality it must go all the way, ending the experiment.
While the result in this case is surely a good one for gay families, it may chill experiments in other states where legislators might fear that they cannot move incrementally toward equality for gay couples without surrendering the judicial basis for any remaining distinctions.

In a nutshell, what’s at stake here, Volokh says, is not gay rights but the integrity of the democratic process.

This is not an unreasonable point to make. In fact, the “political process” argument has always been persuasive, on this and other such issues. It’s sometimes argued that the reason abortion rights have long been recognized in Europe is because they were won through the political process rather than by judicial fiat. Democratic politics is not just a tug of war for the heart of the majority; in a more profound sense, it’s the process by which a whole culture works through necessary changes in its system of values.

Moreover, deference to the political process seems to have become a mantra of both right and left. It was the practical effect of Justice Breyer’s book, Active Liberty, and it is the single note of every song Justice Scalia sings in nearly every speech he gives or every opinion he writes.

And it doesn’t necessarily mean that Gays and Lesbians are being left out in the cold. If Andrew Sullivan is right when he claims that the argument for Gay marriage is a fundamentally conservative argument, then the political process may eventually yield a more happily stable result.

What bothers me though is that the overemphasis on democratic process is effectively a repudiation of principle—not of “a” principle, but a repudiation of principle itself. Consider, for example one of Scalia’s favorite arguments for majoritarian process: it starts with the woman’s suffrage example. Back in the day, he says, no one doubted that the only proper vehicle for securing the vote for women was the amendment process. It came when the culture was ready, and no body has seriously challenged it sense. But if suffrage had to be won today, they’d bypass the political process altogether and head straight for the courts. And he’s right, of course. Even third rate lawyers would have an easy time today making first rate arguments that women were equal to men, possessing all the inalienable rights that men enjoy.
Great argument—but why stop there? By these lights, shouldn’t we have voted on the proposition of racial equality? Indeed, in terms of cultural resistance, racial equality has clearly been a harder sell. Maybe if good white people like me had a few more decades to get comfortable with the idea, we wouldn’t mind letting black folk vote.
No, bad argument! Sometimes, democratic principles need to trump democratic practice. And fundamental human equality is one of those principles; and at least in New Jersey, today is one of those times.

Posted by stevemack at October 25, 2006 10:23 PM

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Over at the Brecher Brief I have two posts worth mentioning: In "Married and Gay in New Jersey" I consider how appropriate it is to use the judicial process to fight for fight for fundamental rights. I'd also recommend Dahlia Lithwick's argument in Sla... [Read More]

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