Friday, October 27, 2006

The politics of New Jersey's gay ruling: emotion trumps empiricism

Let’s stay with the story about the New Jersey high court ruling on gay civil unions:

As expected, religious right leaders are invoking this decision in order to stoke Christian conservative turnout for the ’06 congressional elections. Gary Bauer, for instance, circulated an email last night: “My friends,if you had any doubts about whether or not it is worth votingthis November, I hope (the) decision by the New Jersey Supreme Court erased any and all reservations. As I noted in Wednesday’s report, the radical Left is using the courts to impose an agenda that would not pass at the ballot box.”

And President Bush, who for months had said nothing about gays until he rediscovered the issue in the wake of the New Jersey ruling, said this in Iowa: “(On Wednesday) in New Jersey, we had another activist court that issued a ruling that raises doubts about the institution of marriage. I believe marriage is a union between a man and a woman. And I believe it's a sacred institution that is critical to the health of our society and the well-being of families, and it must be defended.”

Somebody should give Bush a copy of the New Jersey ruling in Lewis v. Harris, and compel him to read all 66 pages, because only then might he recognize the gap between his political rhetoric and the empirical facts. Ditto Bauer. Ditto Tony Perkins of the Family Research Council. I decided to read the actual ruling. It is hardly the work of “another activist court,” or “the radical Left.”

Bush has long stated that he values “strict constructionist” judges who stick to established precedents and the literal meaning of words and phrases. By that definition, New Jersey’s majority contingent issued a strict constructionist ruling. Most importantly, and contrary to what Bush said yesterday, the majority decision doesn’t raise doubt about the institution of marriage. Rather, it specifically declares that it can’t find any language in the New Jersey constitution which would affirm the right of gay people to marry. As the ruling stated, it “cannot find that a fundamental right to same-sex marriage exists in this State.”

The four majority judges (most of whom were Democratic appointees, by the way…appointed by a gay Democratic governor) simply did what state judges do every day in this country. They took the issue at hand – gay plaintiffs seeking the right to marry – and they checked to see whether their claims squared with the actual provisions of the state constitution, as well as with “the traditions, history and conscience of the people of this state.” And they decided in the negative, ruling against the gay plaintiffs.

If the Republicans and religious-right leaders wish to review the court’s thinking for themselves, I refer them to key passages that appear between pages 27 and 31: “Although today there is a nationwide public debate raging over whether same-sex marriage should be authorized under the laws or constitutions of the various states, the framers of the 1947 New Jersey constitution, much less the drafters of our marriage statutes, could not have imagined that the liberty right protected by Article I, Paragraph I (of the state constitution) embraced the right of a person to marry someone of his or her own sex….Although (some) recent cases openly advance the civil rights of gays and lesbians, they fall far short of establishing a right to same-sex marriage deeply rooted in the traditions, history and conscience of the people of this state.”

The court majority, while rejecting “the right to marry,” did rule for gays on “the rights of marriage.” Indeed, the Republicans, hoping to galvanize Christian conservative voters, have already assailed the New Jersey judges for directing the state legislature to enact a gay civil union law guaranteeing same-sex partners the same legal rights and financial benefits now available to heterosexual couples. The GOP’s tactic is in sync with its longstanding claim that judges are riding roughshod over democracy by bulling the elected lawmakers who better represent the will of the people.

But, even on this issue, the four majority judges did what their colleagues in other states typically do: They reviewed the past actions of the elected state lawmakers. And they found that these lawmakers, acting on behalf of the people, have long been expanding the legal rights of gays – for much of the past 20 years. From page 39: “Perhaps more significantly, New Jersey’s Legislature has been at the forefront of combating sexual orientation discrimination, and advancing equality of treatment for gays and lesbians.” Just two years ago, in fact, lawmakers added “domestic partnership” to the statutory language.

So it’s logical, and consistent, that the court would tell lawmakers to bring their own longstanding policies more squarely in line with the equal-rights language in the state constitution. And by leaving it up to the lawmakers to decide whether to call these relationships “civil unions” or “marriages,” the court is specifically recognizing that the people’s branch of state government should make that determination.

The majority judges also did what “strict constructionists” typically do: They showed a respect for judicial precedent. In ruling for equal rights, they demonstrated that their decision was in sync with the state judiciary’s track record, going back more than three decades. For instance, from page 37: “In 1974, a New Jersey court held that the parental visitation rights of a divorced homosexual father could not be denied or restricted based on his sexual orientation.”

So this is the empirical record: New Jersey’s high court majority issued a strict-constructionist ruling that respected precedent, the role of the democratically-elected legislature, and grounded its findings in the particular culture and history of New Jersey. (The “rights” language in the state constitution is actually more expansive than the language in the U.S. constitution.) In other words, the New Jersey ruling was also in the conservative “state’s rights” tradition.

Of course, whether these factual nuances matter a whit on the political battlefield is another matter entirely. It’s easier, as demonstrated by conservative radio host Hugh Hewitt, to simply thunder against New Jersey’s “imperial judiciary.” It's easier, as demonstrated by conservative legal activist Mark Levin, to say that the Jersey ruling was "as political as any I've seen," even though the three dissenting judges who actually wanted to endorse gay marriage were all Republican appointees.

But on the soapbox, emotion usually trumps empiricism. The GOP needs to galvanize disaffected Christian conservative voters over the next 11 days, and the fine points of law are the enemy of political action. After all, as Bush is fond of saying, “I’m not a lawyer.”