Breaking: NJ Supreme Court upholds “same-sex unions”
Allahpundit (H/T: Michelle)

Gotta go skim the opinion. Early reports on Fox suggested the court had ruled that nothing in the state constitution prevents gay marriage, but the part quoted by Instapundit says quite a bit more than that.

It sounds like they’ll let the legislature put whatever label they want on it — “marriage,” “civil unions,” etc. — but that the state’s equal protection clause requires that the incidents of marriage be made available to same-sex couples to the same degree as they are to straights. ...

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Jay has more at Stop The ACLU.

Surber: A queer decision by the NJ court

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The Imperial Judiciary Imposes Same Sex Marriage In New Jersey
Hugh Hewitt

New Jersey joins Massachusetts in transitioning away from democratic government as the New jersey Supreme Court imposes same sex marriage on the Garden State.  From the opening of the syllabus: ...

*** Update and bump. Original timestamp 2006.10.25.16:09

Making It Up
John Hinderaker

The New Jersey Supreme Court has decreed that the equal protection clause of New Jersey's Constitution requires homosexual relationships to be treated, in all legal respects, on a par with marriages. You can read the Court's decision here. It is quite remarkable; by a 4-3 vote, the Court held that the right to homosexual marriage is not a "fundamental right" that is "deeply rooted in the traditions, history, and conscience of the people of this State." I should think not. Yet, the three dissenters argued that the majority didn't go far enough, and that homosexuals have a constitutional right to marriage.

The Court's majority held that, while homosexuals are not entitled to marriage per se, their relationships must be treated, in all legal respects, on a par with heterosexual marriage. So the difference is rather a fine one. The Court acknowledged that New Jersey's legislature has recently adopted a Domestic Partnership Act, but held that the statute did not go far enough: ...

... This is consistent with the modern view seemingly held by many judges, under which a statute is analogous to a rough draft of a student's essay that is turned in to a teacher, perhaps to return with an instruction to do better next time.

What is left to the legislature, apparently, is the discretion to decide whether the name "marriage" will be appended to the fully equal scheme of homosexual union:

The name to be given to the statutory scheme that provides full rights and benefits to samesex couples, whether marriage or some other term, is a matter left to the democratic process.

Well, that's a relief, I guess. We wouldn't want the court to impinge on the democratic process. As the court itself acknowledged, it has no mandate to resolve issues of social policy: ...

... PAUL adds: Ed Whelan has more on the decision at NRO's Bench Memos.

Just one more reminder of the importance of holding the Senate next month. We need to keep confirming Federal and SCOTUS judges who have actually read the Constitution.

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A Muddle On Same-Sex Marriage
Ed Morrissey

The big news yesterday came from the New Jersey Supreme Court, which gave an odd split decision on the subject of gender-neutral marriage. On one hand, the court ruled that gay couples have no expectation of the right to marry -- and on the other hand, they ordered the state legislature to provide them with a way to gain all of the incidentals to marriage. It almost guarantees another round of condemnations for judicial activism, and does little to clarify the issue in any significant way: ...

... It's a strange decision, one that relies on some boilerplate preamble language to discover new rights for gay couples. They use Article I, paragraph 1 as the crutch to put together this new and unimagined right: ...

*** Update and bump. Previous timestamp 01:29

Will They Or Won't They: Pyrrhic Days Are Here Again
Dafydd ab Hugh

Well, at least they didn't go "Full Monty" on us.

The New Jersey Supreme Court stopped short of declaring "a fundamental right to same-sex marriage" in the state, but not so subtlely hinted that the legislators had six months to do one of two things:

• Institute full-blown same-sex marriage in New Jersey;

• Create civil unions so sweeping and all-encompassing that they may as well be marriage -- in everything but name.

There is barely any difference between what the court ruled and going whole hog (can I think of any more metaphorical phrases?), as they did in Massachusetts in the case Goodridge v. Department of Public Health. Like the Massachusetts case, the New Jersey decision was 4-3, as divided as possible, to create a new right ex nihilio (whatever they may claim): the right to civil unions that perfectly mimic marriage. ...

Massachusetts Gov. (and likely 2008 presidential candidate) Mitt Romney's response to Goodridge applies equally well to Lewis:

... But, he went on, marriage is not solely for adults. "Marriage is also for children. In fact, marriage is principally for the nurturing and development of children. The children of America have the right to have a father and a mother." ...

In the interests of fairness, and so you won't think she does nothing but quote, here is Gallagher speaking for herself:

The result [of Goodridge] is not neutrality but the active promotion of a new unisex ideal, in which the distinctive features of opposite-sex relations will be submerged, marginalized, cast to one side, and redefined as discrimination in order to protect the new court-ordered public moral standard of the equality of same-sex and opposite-sex couples. ...

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The Union Label
James Taranto

"New Jersey's highest court opened the door Wednesday to making the state the second in the nation to allow gay marriage, ruling that lawmakers must offer same-sex couples either marriage or something like it, such as civil unions," the Associated Press reports.

That's an odd way of putting it, since the New Jersey Legislature always was free to legalize same-sex marriage. Rather than having "opened the door," the state Supreme Court is pushing the Legislature through, forcing it to make available to gay couples the benefits of marriage, though the nomenclature remains at the lawmakers' discretion.

The history of this issue is a striking example of the power of the judiciary to shape American politics and culture. In 1999, when the Vermont Supreme Court issued a similar decision, it seemed revolutionary. Gov. Howard Dean, confronted at town meetings by angry traditionalists, defensively said that the ruling didn't redefine marriage, which remains a union between a man and a woman. Dean nonetheless said he favored civil unions, and he signed the bill the court had ordered the Legislature to pass.

Five years later, the Massachusetts Supreme Judicial Court mandated same-sex marriage, in name as well as in effect. And just over two years after that, the Vermont approach is the "conservative" one, or at least the "moderate" one, at least in New Jersey. Yesterday's vote among the justices in Lewis v. Harris was 4-3, with the dissenters asserting, à la Massachusetts, that same-sex couples have the "right to the title of marriage" as well as to its material benefits.

Two years ago the New York Times reported that President Bush--frequently vilified by gay-rights supporters for backing the Federal Marriage Amendment--endorsed the idea of civil unions:

In an interview on Sunday [Oct. 24, 2004] with Charles Gibson, an anchor of "Good Morning America" on ABC, Mr. Bush said, "I don't think we should deny people rights to a civil union, a legal arrangement, if that's what a state chooses to do so." . . .

According to an ABC transcript, Mr. Gibson then noted to Mr. Bush that the Republican Party platform opposed civil unions.

"Well, I don't," Mr. Bush replied.

So the country has traveled a long road since 1999, when Vermont's ruling seemed revolutionary. Of course, one should not overstate the case: Only a handful of states afford legal recognition to same-sex unions, and all of them are in the Northeast save California and Hawaii. Most states have enacted laws or constitutional provisions preventing same-sex marriage, and some bar civil unions too.

These provisions resulted from a backlash after the courts' rulings in Vermont and Massachusetts--a backlash that has probably served the electoral interests of Republicans, who, despite the president's liberal views on civil unions, remain the party less eager to expand gay rights. In the long run, though, the move toward legal same-sex unions may prove inexorable. All those state restrictions on same-sex unions could be struck down by five Supreme Court justices. ...

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"De Minimising" De Marriage
Dafydd

A commenter in an earlier post, arguing in favor of same-sex marriage (SSM) -- or at least against motions to prevent it, such as initiative constitutional amendments -- made the following argument, which is interesting and deserves response:

De minimis non curat lex. The law does not care about trifles. Massachusetts had less than 7,000 same-sex marriages in the first year, about 2/3 of them between women and mostly between people over 35. Massachusetts had less than 7,000 same-sex marriages in the first year, about 2/3 of them between women and mostly between people over 35. Even if that occurred in every state in te Union it would be statistically meaningless compared to, for example, the number of illegitimate children.

The rejoinder obvious: there are many things that happen rarely but still concern us greatly, ...