The Sneaky Petes Tweak Equal Protection
By Neil Stevens Comments (8) / Email this page » / Leave a comment »
For some time, I've been arguing that any Fourteenth Amendment challenge to marriage is absurd, because unlike actual forms of irrational discrimination (such as 'race'-based marriage restrictions) the definition of marriage, a union between a man and a woman, treats all men equally and all women equally.
Today, New Jersey's courts did something different. The sneaky Petes claim that 'couples' have distinct Constitutional rights that the court has the authority to protect. For their justification, see the Supreme Court of New Jersey in Lewis v. Harris, page 42:
In passing the [Domestic Partership] Act, the Legislature expressed its clear understanding of the human dimension that propelled it to provide relief to same-sex couples. It emphasized that the need for committed same-sex partners “to have access to these rights and benefits is paramount in view of their essential relationship to any reasonable conception of basic human dignity and autonomy, and the extent to which they will play an integral role in enabling these persons to enjoy their familial relationships as domestic partners.” N.J.S.A. 26:8A-2(d).
The court then goes on to show that the law does not treat 'same-sex couples' the same way it treats 'opposite-sex couples,' and then decides on page 57 that:
The equal protection requirement of Article I, Paragraph 1 leaves the Legislature with two apparent options. The Legislature could simply amend the marriage statutes to include same-sex couples, or it could create a separate statutory structure, such as a civil union, as Connecticut and Vermont have done. See Conn. Gen. Stat. §§ 46b-38aa to -38pp; Vt. Stat. Ann. tit. 15, §§ 1201-1207.
What I cannot find, though, is where the Court shows that the Constitutions of the US or New Jersey provide rights collectively to couples. They do show a right to marry held by individuals, they show a right to individual equal protection, but never are 'couples' shown as being entitled to anything. The only justification given, repeatedly, is a series of laws passed by New Jersey and other states (as quoted above), as part of an 'evolving ethos of a maturing society' coming around to the side of the plaintiffs (Page 64).
In coming this conclusion the court refers to, in essence, the penumbra of the New Jersey Constitution, not the US Constitution. We still need to be concerned nationally though. See Page 34 (emphasis added):
Article I, Paragraph 1 of the New Jersey Constitution sets forth the first principles of our governmental charter -- that every person possesses the “unalienable rights” to enjoy life, liberty, and property, and to pursue happiness. Although our State Constitution nowhere expressly states that every person shall be entitled to the equal protection of the laws, we have construed the expansive language of Article I, Paragraph 1 to embrace that fundamental guarantee.
So this reasoning is something we have to worry about nationally, because an activist federal court would not have to make that reach in order to claim the existence of a right to equal protection. They only have to look at the Fourteenth Amendment for that.
It has since occurred to me that by contrasting 'opposite-sex couples' with 'same-sex couples,' the court is begging the question. Once you assume same-sex couples are even comparable with married couples, the decision's already been made.
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If you're seeing shades of gray, it's because you're not looking close enough to see the black and white dots.
I think you are on to something here. This seems to be a radical departure from how rights have been thought of in the past. It makes no sense to allocate them to "couples" or any other unit other than "individual."
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"I am a great believer in luck. The harder I work, the more I have of it." -- Thomas Jefferson
For some reason I keep thinking about this obnoxious decision. It just now occurred to me WHY the NJ Supreme Court stretched the state constitution in order to get equal protection, instead of falling back on the easily accessible US Constitution: By sticking to the NJ Constitution, the Court may be hoping that they will be shown deference by the US Supreme Court and so won't be overturned, as they might be if they relied on the 14th Amendment.
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If you're seeing shades of gray, it's because you're not looking close enough to see the black and white dots.
The court says as much on page 55:
Indeed, we have not hesitated to find that our State Constitution provides our citizens with greater rights to privacy, free speech, and equal protection than those available under the United States Constitution. [prior case citations omitted]
Why would they fall back to the U.S. Constitution? The issue is what persons in New Jersey are or are not entitled to as per New Jersey's Constitution. State Constitutions can certainly provide more specific or broader protections and rights than the U.S. Constitution.
I'm under the impression that because the opinion was a finding based solely on the New Jersey Constitution - as seems rational in this case - that there can be no appeal to the Supreme Court, who only determines matters associated with the U.S. Constitution.
the State Constitution is in conflict to the Federal, in which case the State loses.
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Evil men hide from the truth, but good men stand upon it.
The US Constitution explicitly requires the states to give people equal protection of the law.
The NJ Constitution does NOT. In order to find it they had to read it into the document, in the language I bolded in the diary.
For the right they're claiming here, equal protection for couples, NJ is BEHIND the US, because NJ has no explicit equal protection right.
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If you're seeing shades of gray, it's because you're not looking close enough to see the black and white dots.
The US Supreme Court case on inter-racial marriage was Loving v. Virginia. I think the Court was correct in that case to apply the Equal Protection Clause. The state of Virginia was trying to prevent white people from having mixed-race children, even though mixed-race adults were allowed to have mixed-race children. Viewed in that light, Loving was not about rights of "couples" but rather was about the rights of individuals. That seems quite different from the issues involved in the New Jersey case.
Anyway, FYI, I blogged about a different aspect of the New Jersey decision today at confirmthem.
I was thinking the same thing re: the constitution confering rights onto "persons" as opposed to "couples" but even though that's what seems intuitively obvious, I haven't read the constitution so I didn't want to make a fool of myself :P