How Very Predictable

So, gays can’t "marry" -- necessarily -- but they’re entitled to all the same rights as a married couple.

Split the baby. Plaintiffs will be annoyed, because they wanted a societal affirmation that their relationships are no different than heterosexual unions, a determination the Court (quite properly) rejected. But those who take the constitution seriously will be likewise annoyed, because of the underlying rationale for the determination: "substantive" due process and "equal protection".

First, "process" and "substance" are, virtually by definition, mutually exclusive. "Substance" defines a particular policy, "process" the means by which we effect it. Use of the expression "substantive due process" represents nothing more than judge-speak for "arriving at the right policy result". Despite Justice Albin’s protestations to the contrary, inventing a brand new right, despite the utter want of any Constitutional authority for same, constitutes an intrusion into the Legislative arena.

And while "equal protection" analysis offers a certain facial appeal, it suffers from one crucial – indeed, fatal – defect: those words do not appear in the document. Hence, while this state boasts a lengthy, judicially invented "equal protection" jurisprudence, it’s simply impossible to square same with the express, unequivocal language of the document. The federal Equal Protection clause dates from 1868; had the Framers of our 1947 Constitution wished to insert a cognate provision, they easily could have done so. Importing it by judicial fiat constitutes a blatant extra-constitutional revision of the text, probably simply because the language is too judicially useful to forego.

Finally, leaving aside the fact that nothing in the Constitution even remotely suggests the necessity for treating gay couples the same as heterosexual couples, even on the relevant policy inquiry, the Court reverses the relevant inquiry. After reciting all manner of privileges and rights available to married couples and unavailable to any other group of people, it defines the question presented as follows:

"We therefore must determine whether there is a public need to deny committed same-sex partners the benefits and privileges available to heterosexual couples."

Wrong. As a matter of policy, the question presented is: what benefits do gay couples offer to the state sufficient to compel it to recognize their unions?

To which, the only legitimate answer is: nothing.

Put another way, it matters not at all, to the state, whether gay unions endure or collapse. It is upon them to justify an expansion of benefits to them, not up to the state of justify a denial.

Generally, the state need only demonstrate that its laws are rational; limiting marital rights to those couples which may presumptively produce biological children makes perfect sense. Extending rights to gay couples, the relationships of which are a matter of the utmost (public) unconcern, makes precisely no sense.

Put simply, if the Justices feel that there is something "distinctly unfair" with extending benefits to heterosexuals and not to gays, a simple solutions presents itself: run for office.

The Court asserts a mock deference to the Legislature, presuming its presumptive compliance with this ukase to be constitution, directly after a holding which blithely upsets centuries’ worth of precedent.

It’s time that the people of New Jersey gave the Justice of Supreme Court the spanking they deserve. They clearly fundamentally misunderstand the appropriate judicial role. They can’t read and, in the reapportionment and Torricelli cases, they demonstrated that they can’t count. It’s time to evict these men and women from office, and replace them with people who understand basic concepts like the separation of powers.

Assemblyman Merkt will be introducing articles of impeachment. The majority should give these proposals the quick hearing they deserve.