Sometimes a court’s attitude demonstrates judicial activism as much as its actions. A judicial opinion can tell us much about a court’s view of its role in the balance of separated powers, the hallmark of American republican government. The New Jersey Supreme Court’s decision in Lewis v. Harris speaks volumes: “Although courts can ensure equal treatment, they cannot guarantee social acceptance, which must come through the evolving ethos of a maturing society.� (Emphasis added.) Translation: “Everyone is like me, or will be when they grow up.�

This arrogant certitude is all the justification the court needed to mandate an “enlightened� public policy it found too slow in coming from the legislature: that the state must actively promote same-sex relationships just as it promotes marriage, through the granting of identical rights and benefits. In the court’s words, “under the equal protection guarantee of Article I, Paragraph 1 of the New Jersey Constitution, committed same-sex couples must be afforded on equal terms the same rights and benefits enjoyed by married opposite-sex couples.� That is, the non-existent “equal protection guarantee� that the Court long ago read into Article I, Paragraph 1.

In a long passage that is awkwardly Freudian, the majority concludes the court’s opinion with repeated declarations that its ruling actually respects separation of powers. The court gives lip service to the requirement that the court “give … deference to any legislative enactment unless it is unmistakably shown to run afoul of the Constitution.â€? It dutifully reminds us that “[a] legislature must have substantial latitude to establish classifications, and therefore determining what is ‘different’ and what is ‘the same’ ordinarily is a matter of legislative discretion.â€? It assures us that since “[its] own role here is limited to constitutional adjudication,â€? it knows it must “steer clear of the swift and treacherous currents of social policy when [it has] no constitutional compass with which to navigate.â€? Fascinatingly, the majority even chides the partial dissenters for “part[ing] ways from traditional principles of judicial restraint to reach a constitutional issue that is not before us.â€? (This is directed at the partial dissenters’ insistence that not only all the same rights and benefits, but also the name “marriageâ€? itself, is constitutionally compelled to be given to same-sex couples.)

To be sure, the court throws a symbolic bone to the New Jersey legislature, letting it have first crack at naming the court’s new construct. Yet even as to the name to be given state-sanctioned homosexual unions, there is an almost paternalistic tone of “we’re waiting, and we’re watching.� The court concludes it should not prejudge whether full equality of rights and benefits for same-sex couples, but under a different name than “marriage,� will pass constitutional muster. The court indicates it will need to see the actual implementation to make such a call. While this bare majority expresses some doubt whether “a name itself is of constitutional magnitude after the State is required to provide full statutory rights and benefits to same-sex couples,� it does not exactly foreclose a second lawsuit, either.

That second lawsuit will almost assuredly be forthcoming if the New Jersey legislature does not grant full blown same-sex “marriage.� Promoters of same-sex “marriage� have already declared that they read the Lewis decision as authorizing, indeed, inviting, a second lawsuit if same-sex relationships are denied the designation of “marriage.�

In the wake of all this, a very serious question now lingers. What if enough members of the New Jersey legislative branch think of their branch as something more than the judiciary’s lap dog? The New Jersey Supreme Court’s decision in Lewis is nothing less than the judiciary ordering the co-equal legislative branch to enact specific legislation (confining it to pick between two carefully-defined alternatives). Will the New Jersey legislature cede such an unheard-of level of power to the judicial branch in the Garden State? Will it challenge the activist court’s latest foray into lawmaking? Will it pass a marriage amendment so the people can decide directly? Stay tuned to find out.

This entry was posted on Friday, October 27th, 2006 at 1:21 pm and is filed under Civil Rights, Politics .