Literally Legislating From the Bench
Usually, Democrats get all a twitter when conservatives accuse activist judges of legislating from the bench. Well, in today's New Jersey case that forces benefits for married couples to be offered to same-sex couples came this little nugget of actual legislating from the bench. From the casefile (page 3):
Whether you agree with the meat and potatoes of this decision or not (and I really don't care one way or the other), you just cannot be happy with how the decision came about. A court of law decided how laws will be decided and implemented in New Jersey. An independent branch of government just ordered another branch of government to do something in an extraconstitutional fashion. That is the biggest problem with this case, a judges clearly reaching beyond the power of their office to decide on a major issue for the people. On top of it, the decision to require the legislature to act has little to with the merits of the case itself. The case dealt with benefits of same sex partners, not whether or not marriage as an institution was legal.
If there is any good news to this, Tom Kean's chances of being elected to the U.S. Senate probably went up in a big way.
Now, more than ever, is proof that we need to appoint honest, fair judges to our state and federal benches. We just cannot continue to survive as a society if judges are going to go off the reservation and make these decision beyond the scope of any accountability and actual legal constitutionality.
To bring the State into compliance with Article I, Paragraph 1 so that plaintiffs can exercise their full constitutional rights, the Legislature must either amend the marriage statutes or enact an appropriate statutory structure within 180 days of the date of this decision.Read on and discover that the 4-judge majority didn't go far enough for the other three judges...
Whether you agree with the meat and potatoes of this decision or not (and I really don't care one way or the other), you just cannot be happy with how the decision came about. A court of law decided how laws will be decided and implemented in New Jersey. An independent branch of government just ordered another branch of government to do something in an extraconstitutional fashion. That is the biggest problem with this case, a judges clearly reaching beyond the power of their office to decide on a major issue for the people. On top of it, the decision to require the legislature to act has little to with the merits of the case itself. The case dealt with benefits of same sex partners, not whether or not marriage as an institution was legal.
If there is any good news to this, Tom Kean's chances of being elected to the U.S. Senate probably went up in a big way.
Now, more than ever, is proof that we need to appoint honest, fair judges to our state and federal benches. We just cannot continue to survive as a society if judges are going to go off the reservation and make these decision beyond the scope of any accountability and actual legal constitutionality.
posted by Brian Griffiths at 11:18 PM
1 Comments:
Brian,
Great insight as always. Keep in mind a couple of key points about the case in New Jersey.
First, NJ has no statute or constitutional provision expressly defining marriage. That gave the NJ Supreme Court the opening to decide a vague provision of the state constitution (most states have something similar) the way the did.
Second, without an anchor in either plain language or original intent constitutional provisions protecting "due process of law" or "equal protection of law" become blanks slates for activists judges to impose unpopular social policy.
It is a reminder why every constitution including Maryland needs a marriage protection amendment before it gets to the Courts. The dems stopped this in Maryland and now all we have is a 20 year old statute and a prayer that 4 of the 7 Court of Appeals judges do not make Maryland next on the gay marriage hit parade after Massachusetts and New Jersey.
Finally, do not forget that looming is the whole "good faith and credit" issue. If New Jersey has legally recognized gay marriage the SCOTUS may find that every other state must recognize them. Will a federal statute (the defense of marriage act) prevent this? Not if five of the Supremes say it does not. That is why we need a federal marriage amendment NOW!
Keep up the good work.
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