Thursday, October 26, 2006

Gay marriage re-cap

Having now read the New Jersey Supreme Court's gay marriage decision -- Lewis v. Harris -- we have a few observations on the decision and the aftermath:

First, we were wrong on our prediction that the decision would not be unanimous. Although there was a 4-3 split, at the end of the day the 7 justices agreed that marriage or the equivalent must be afforded to gay couples. We did think there would be an actual dissent, somewhat in line with the New York Court of Appeals decision a few months ago in which the court left decisions on defining marriage to the legislature.

Second, the split was interesting. The 3 justices who would have ordered full marriage for gay couples are all, essentially, tenured and will never face the appointment and confirmation process again. Under New Jersey's constitution, members of the judiciary are appointed by the governor and confirmed by the state senate for an initial 7-year term. At the end of that term, the governor must reappoint the judge or justice (if he or she so chooses). If reappointed and then confirmed by the senate again, that judge has tenure until the mandatory retirement age of 70. Chief Justice Poritz, who turned 70 today, retired yesterday after the opinion was issued. Justice Zazzali, who was confirmed by the senate as chief justice just two days before this decision was issue, will be 70 this coming July and will not face another confirmation hearing before then. Justice Long was recently reappointed and reconfirmed and now has her job until she turns 70 in 2012.

The four justices in the majority will all face reappointment over the next several years. Justice LaVecchia, who was sworn in to a term beginning on February 1, 2000, is up for reappointment in a few short months. Then comes Justice Albin, who will face reappointment in September 2009, Justice Wallace in September 2010 and Justice Rivera-Soto in September 2011.

Was there a reason for the tenure v. non-tenure split, given the outcome? Who knows, but we thought it was interesting that the four members of the court who will face questioning from the state senate during their reconfirmations over the next few years didn't find that gay marriage was a fundamental right, something that the tenured justices would have found.

Third, the Democrat leaders in the legislature weren't too happy with the 180-day time period given by the court. Considering that New Jersey can't do a damn thing in 6-months, changing the state's entire marriage regime in that time seems a little ambitious. We give props to Senate President Richard J. Codey and Assembly Speaker Joseph J. Roberts Jr. for telling the court what they thought about the timeframe:
"Given the fact that it took the judicial system nearly four years to come up with a 4-3 split decision, we think the determination by only four justices that the entire Legislature is obligated to respond within 180 days is unreasonable."

So there, justices!

Fourth, the Democrats are looking to kill any debate on alternatives to the court's ruling before they even happen. According to the Asbury Park Press, "Codey and Roberts said they would not post any measure overturning the court's decision to protect same-sex couples." Now, at this time we are taking no position on the substance of the court's decision. But we will take a position on Codey and Roberts' intention to limit debate: Its wrong! If a constitutional amendment were proposed, it should be considered and voted on. That is the democratic process and it should be adhered to. The party leaders of the majority party -- the Democrats here -- should not limit debate to only those issues they deem important or those issues that are in line with their views. Doing so disenfranchises a significant portion of the state by not allowing their elected officials to propose legislation that will be considered by the entire body. Consider an amendment, if one is proposed, (or any other alternatives) and vote it up or down. But consider it.

That's all we have for now.

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