"And what does the LORD require of you But to do justice, to love kindness, and to walk humbly with your God"
-- Micah 6:8

"The duty of the prosecutor is to seek justice, not merely to convict."
-- American Bar Association Standard 3-1.2(c)

"There may be a legitimate diversity of opinion even among Catholics about waging war and applying the death penalty, but not however with regard to abortion and euthanasia."
--Pope Benedict XVI, June 2004

Thursday, October 26, 2006

Requiem for Marriage in New Jersey

Here it is: New Jersey Supremes predictably hold that equal protection provision of the state constitution requires that homosexual couples be afforded the full rights and privileges of normal marriage. While superfluously holding that there is no fundamental right to marry conferred by the due process clause of the constitution (hoping no doubt to head off the polygamists and others), the Court nevertheless holds that there is no basis for the state to deny all the privileges of marriage to homosexual couples, with the exception that the state need not call their couplings "marriage." Well, then, all is well.

The Court's opinion sounds like an episode of "Oprah," adoringly giving us the life stories of the seven homosexual plaintiff couples, apparently in a bid to support the Court's contention that the "plaintiffs lead lives that are remarkably similar to those of opposite-sex couples." There's great legal reasoning for you. Don't try it at home, boys and girls, you need a special license to engage in such sophisticated lawyering.

Ummm, excuse me, Mr/Ms. Justice, but I don't know of a single heterosexual couple where (like one of the NJ couples you glorify) both were artificially inseminated to produce their two children. I also don't know of any heterosexual pairing premised by its very nature on the absence of either a mother or a father. By definition, these supposed "just like us" families are designed to be fatherless households (in the case of lesbian couples) or motherless households (in the case of male homosexual couples). True, heterosexual families sometimes end up dissolving into single parent situations, but they are not deliberately designed in advance to exclude the presence of an opposite sex parent in the household.

Yet astoundingly, the NJ robed gods did not see this simple fact as justification for the state's continued fostering of normal marriage. Of course, it's not all the Court's fault. Apparently, the NJ “Attorney General disclaim[ed] reliance upon promotion of procreation and creating the optimal environment for raising children as justifications for the limitation of marriage to members of the opposite sex.” Huh? (Although the "acting" AG is on the brief, the case no doubt was prepared under the corrupt former AG, one Zulima Farber, who resigned in disgrace before the case was argued. I know you'll be shocked to find that Farber was a past- state board chairperson for NARAL Pro-Choice America)

The rationale of the NJ court was that since the NJ legislature had enacted several laws favoring homosexuals, such as a domestic partnership law, a "hate-crimes" law, liberal adoption standards, and the like, the state could not withold the additional benefits conferred by marriage consistently with equal protection principles. Ironically, the message there might be that legislatures should not take a single step down the road conferring any unique protections on homosexuals as such, lest the courts conclude, like NJ, that once you give them a bite, you have to give them the whole enchilada. As pointed out by Dale Carpenter, this may cause a retrenchment in other states worried about judicially imposed homosexual marriage.

The bad news is that all it takes is some creative writing from our judicial masters to finagle the equal protection argument any way they like. Virginia's constitution, like New Jersey's, guarantees equal protection of the laws. Unlike NJ, however, Virginia does not by statute grant adoption rights to homosexuals, and our courts have thusfar denied them that right. But at the insistence of the homosexual lobby, the Virginia Housing Development Authority has removed a restriction to their Single Family Loan Program which had required co-borrowers be related by blood, marriage or adoption, thus excluding homosexuals.

Moreover, previously Va. Code § 38.2-3525 had limited healthcare insurance coverage to the employee and a limited group of defined dependents—even where a private employer chose to offer broader benefits. The 2005 General Assembly passed a law signed by former Governor Mark Warner allowing private, employer-based health insurance to be extended on a voluntary basis to individuals living in the same household as the employee, i.e., homosexuals.

And in 1999 the Virginia Supremes ruled in Bottoms v. Bottoms that homosexuality of a parent is not a per se disqualification to custody rights.

So although Virginia has not gone as far as NJ in giving express statutory entitlements to homosexuals, there has been some movement favoring their initiatives. It is not difficult at all to imagine a 4-Justice Virginia Supreme Court majority ruling that equal protection concerns trump whatever remains of the state's concern in fostering traditional marriage and family life.

If you're a Virginian and believe the people, not judges, should decide what marriage in this state should look like, the constitutional amendment on the November ballot is the solution. It forbids the establishment of so-called civil unions, or "marriage-lite." Marriage, at least as a public, civil institution as it has been known from time immemorial is now dead in New Jersey. Why? Because their legislature enacted a domestic partnership law that gave many benefits of marriage to homosexual couples. The NJ Supremes yesterday said that since homosexual couplings are not disfavored, the state cannot deny them the full benefits afforded to heterosexual couples. In Virginia, even though a statute forbids homosexual marriage, other laws and judicial rulings seem to afford some protection to homosexual couples. And we all know that a mere statute cannot trump the constitution!

In Virginia, when the proposed marriage amendment is adopted, the fundamental uniqueness of traditional marriage will be reaffirmed and "marriage-lite" civil unions will be unconstitutional. The New Jersey tactic will be unavailaing here, because no legal argument could then be made that since Virginia favors partial homosexual cohabitation rights, it must confer them in full.


Bill Garnett said...

I offer this opinion from J. Harvie Wilkinson III, a judge on the U.S. Court of Appeals for the 4th Circuit.

“Ordinary legislation -- not constitutional amendments -- should express the community's view that marriage "shall consist only of the union of a man and a woman." To use the Constitution for prescriptions of policy is to shackle future generations that should have the same right as ours to enact policies of their own. To use the Constitution as a forum for even our most favored views strikes a blow of uncommon harshness upon disfavored groups, in this case gay citizens who would never see this country's founding charter as their own.”

Democracy is far from perfect - as anyone who has read from our founders’ writings will agree. And certainly there exists the tyranny of the majority - which is essentially what opposition to gay rights is, now that science and medicine have concluded that homosexuality is a state of being and NOT a moral choice. Perhaps you think it was “activist judges” that stopped segregation or allowed mixed marriages or found in Lawrence v. State of Texas a right of privacy. We have a three part balanced government, and having the wisdom of independent and wise judges is often a balance against the tyranny of the majority and the hypocrisy of our recent elected officials.

Donald R. McClarey said...

Having judges ordering legislatures to pass legislation is tyranny pure and simple.

"To use the Constitution as a forum for even our most favored views"

The above quote from Judge Wilkinson is absolutely hilarious. Courts for decades have been using Constitutions, both federal and state, as fill-in-the-blank documents to turn the personal policy preferences of judges into commands that cannot be changed except by Herculean effort. This is an old judicial con game and so very transparent. I much prefer to be governed by elected representatives who can be tossed out at the next election, than by judges with god complexes who often have life tenure, either de jure or de facto, and who pride themselves on being free from public pressure, i.e. WE THE PEOPLE.