I promised yesterday to give you my reactions to the New Jersey Supreme Court ruling issued yesterday on gay marriage.   After having read it, I have to say it is basically a gutless decision, issued by an unconstitutionally activist judiciary, which fails to analyze or consider so much that it demonstrates intellectual laziness on the part of New Jersey's appointed wisepeople.   At the same time it oversteps the State Constitution's Article 3 separation of powers.

The Justices said partnered, devoted same-sex couples must have identical rights as married heterosexual couples.   They didn't so much care if the arrangement was called marriage but the same rights had to be available through a government mechanism regardless of what name is decided upon by the democratic process.   They claimed there is no overriding, legitimate government purpose for denying the rights conferred via the institution of civil marriage to same-gender couples.   They commanded the legislature to fashion law implementing their decision within 180 days.

The institution of marriage is obviously much older than our country.   It dates back thousands of years to Old Testament days.   Anthropologists once believed that pre-historic man was a promiscuous being.   In more recent years, they have concluded otherwise but the exact nature of early human relations remains a mystery.   As one esteemed author on the subject put it:   "It is not, of course, impossible that, among some peoples, intercourse between the sexes may have been almost promiscuous.   But there is not a shred of genuine evidence for the notion that promiscuity ever formed a general stage in the history of mankind . . . monogamy is by far the most common form of human marriage.   It was so among the ancient peoples of whom we have any direct knowledge."

But what exactly is "marriage" and what are its purposes?   In the words of Wikipedia, "marriage is a relationship between or among individuals, usually recognized by civil authority ... Marriage is usually understood as a male-female relationship designed to produce children and successfully socialize them ... Typically, marriage is the institution through which people join together their lives in emotional and economic ways through forming a household.   It often confers rights and obligations with respect to raising children ... Marriage ... establishes a joint fund of property for the benefit of children ... has traditionally been a prerequisite for starting a family, which usually serves as the building block of a community and society.   Thus, marriage not only serves the interests of the two individuals, but also the interests of their children and the society of which they are a part."

So, it is fair to conclude that marriage is about binding not only individuals but families and communities.   One of its principal purposes is to create an environment in which children can be created, raised provided for, and socialized in the best possible circumstance.   The institution serves society in this capacity.   For these reasons, government has a legitimate purpose behind regulating the institution of marriage.   In fact, ancient societies found it necessary to create bodies of law governing marriage precisely because it and its beneficiaries - primarily the children - were an important part of the societal fabric.   A society without children obviously will die.   A society that does not safeguard its children and raise them to full citizenship successfully will fall apart.   The institution of marriage certainly creates issues which are not related to children but its primary function from a societal and governmental point of view is the creation, protection, and development of children.

Traditionally liberals, and in particular feminists and homosexuals, have opined that marriage is politically retrograde and an expression of patriarchal values.   They, as a group, have had nothing but disdain for the institution for many centuries.   As time has passed, however, homosexual philosophers have begun to conclude that marriage defines "full humanity."   Gays have been engaged in a struggle for social tolerance and, ultimately, social acceptance.   They want everything heterosexuals have because they believe once they do, heterosexuals will have formally given them something more than tolerance.   They have sought marriage as a step into "full humanity" and in so doing, have not asked the factual question of why societies developed the institution, but rather what it confers on the individual entrant.   The inquiry does not ponder what is gained by society, but rather what is gained by the individual.

The New Jersey decision does not consider any of the legitimate societal or governmental reasons for creating, promoting and regulating the institution of marriage.   The only aspect of marriage under consideration is what it confers upon the individual participants.   The opinion in the case begins by saying plaintiffs seek "to enjoy the legal, financial, and social benefits that marriage affords."   In its holding, the court wrote "denying committed same-sex couples the financial and social benefits and privileges given their married heterosexual counterparts bears no substantial relationship to a legitimate governmental purpose."

The opinion refers to the "multitude of social and financial benefits and privileges conferred on opposite-sex married couples."   In the factual buildup to the legal decision, the Court takes note of certain manifestations of "second class citizenship" in the absence of marriage.   The Court began:

"The seeming ordinariness of plaintiff's lives is belied by the social indignities and economic difficulties that they daily face due to the inferior legal standing of their relationships compared to that of married couples.   Without the benefits of marriage, some plaintiffs have had to endure the expensive and time-consuming process of cross-adopting each other's children and effectuating legal surname changes.   Other plaintiffs have had to contend with economic disadvantages, such as paying excessive health insurance premiums because employers did not have to provide coverage to domestic partners, not having a right to 'family leave' time, and suffering adverse inheritance tax consequences.

When some plaintiffs have been hospitalized, medical facilities have denied privileges to their partners customarily extended to family members.   For example, when ... contracted meningitis, the hospital's medical staff at first ignored her pleas to allow her partner ... to accompany her to the emergency room.   After ... gave birth to a son, a hospital nurse challenged the right of her partner to be present in the newborn nursery to view their child.   When ... received treatment for breast cancer, medical staff withheld information from her partner ... 'that would never be withheld from a spouse or even a more distant relative.'   Finally plaintiffs recount the indignities, embarrassment, and anguish that they as well as their children have suffered in attempting to explain their family status."

Now, most of the above can be rectified and in fact are by operation of other law.   For example, a medical patient can create a directive under which any person they like would be treated identically to a family member with respect to medical information.   As a married heterosexual man whose wife gave birth to multiple children, I can tell you that my right to be present in the newborn nursery to view my child too was initially challenged by a hospital nurse.   The issue of exactly what information would be withheld from a spouse or even a more distant relative depends chiefly upon the person doing the withholding.   I have frequently butted heads with medical staff who refused to give me information about my spouse.   Often, even with both of us present, medical personnel seek my spouse's permission before discussing issues.   My wife too has frequently been denied ordinary medical information concerning me.

The issue of health insurance premiums for coverage to domestic partners has largely been addressed by private industry.   "Family leave" time is generally controlled by federal statute and remains unaffected by state recognition of same-sex marriage.   With respect to adverse inheritance tax consequences, New Jersey's estate tax is virtually non-existent.   It applies only to estates in excess of $675,000.   And it would be a trivial matter for the state to alter the taxing schema to include domestic partners in the spousal and family classes, thereby exempting them from taxation.

But in the final sentence of the factual basis for the case, the Justices give us their primary motivation when they describe the lives of same-sex partners and their families.   The opinion reads, "Finally plaintiffs recount the indignities, embarrassment, and anguish that they as well as their children have suffered in attempting to explain their family status."   I suggest to you that no operation of law can change this specific circumstance.   Even permitting same-sex marriage will not obviate the need for a child to explain why both one's parents are women or men.   If it is acceptance which homosexuals seek, this is not the path towards it.

The court danced around the actual "marriage" issue by stating "only rights that are deeply rooted in the traditions, history, and conscience of the people are deemed to be fundamental.   Although we cannot find that a fundamental right to same-sex marriage exists in this State, the unequal dispensation of rights and benefits to committed same-sex partners can no longer be tolerated under our State Constitution."

Finally, the court directed the legislature to fashion a law rectifying the unconstitutional situation.   The opinion said:

"To comply with this constitutional mandate, the Legislature must either amend the marriage statutes to include same-sex couples or create a parallel structure, which will provide for, on equal terms, the rights and benefits enjoyed and burdens and obligations borne by married couples.   We will not presume that a separate statutory scheme, which uses a title other than marriage, contravenes equal protection principles, so long as the right and benefits of civil marriage are made equally available to same-sex couples.   The name to be given to the statutory scheme that provides full rights and benefits to same-sex couples, whether marriage or some other term, is a matter left to the democratic process."

Put another way, the court said, we have the power to command the legislature to act in a specific way.   We provide two alternate possibilities between which they must decide within a brief, fixed timeframe.   And the purpose of democracy is to name things.

New Jersey's State Constitution specifically creates the Supreme Court and specifies what its responsibilities are.   It provides for very explicit separation of powers.   It provides specific circumstances in which the Supreme Court can accept appeals.   These include constitutional questions, dissents in the Appellate Division, capital cases, and "such causes as may be provided by law."   It specifically focuses the Supreme Court on questions which may arise from the Constitution itself.

The issue of gay marriage is not one addressed by the Constitution.   In fact, marriage is not at all addressed there.   The only question relevant to the Supreme Court is whether the marriage laws violate the State Constitution.   And the Supreme Court holds no right to legislate nor compel legislation.

The Governor nominates and appoints, with the advice and consent of the Senate all members of the Supreme Court.   The Governor holds constitutional power to retire any justice from office upon certification of a justice's incapacity to discharge duties and an investigation launched by the Governor.   State government decides the salary of Justices.   All judicial employees are employees of the state government.   There is nothing within the Constitution which gives a superior right to the judiciary over the legislature or Governor.   In fact, all circumstantial evidence points to a Court subservient to the will of the people.

The Constitution begins, "All persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness.   All political power is inherent in the people.   Government is instituted for the protection, security, and benefit of the people, and they have the right at all times to alter or reform the same, whenever the public good may require it ... No person shall be deprived of the inestimable privilege of worshipping Almighty God in a manner agreeable to the dictates of his own conscience ... No person shall be denied the enjoyment of any civil or military right, nor be discriminated against in the exercise of any civil or military right, nor be segregated in the militia or in the public schools, because of religious principles, race, color, ancestry or national origin .... This enumeration of rights and privileges shall not be construed to impair or deny others retained by the people ... The powers of the government shall be divided among three distinct branches, the legislative, executive, and judicial.   No person or persons belonging to or constituting one branch shall exercise any of the powers properly belonging to either of the others, except as expressly provided in this Constitution."

New Jersey's Constitution has neither a provision recognizing marriage nor any clause which requires a non-discriminatory treatment of persons based upon sexual orientation.   As such, the only legal determination the Supreme Court can make would be a finding that the marriage laws themselves are unconstitutional.   The court could invalidate those laws but it oversteps its constitutional mandate by commanding the legislature to fashion a parallel law.   The legislature can decide for itself the nature of any remedy including the abolition of marriage altogether.   The Court can then judge it upon proper appeal but it has no right to demand any specific act by either the legislature or the Governor.

The way this decision is written, it is entirely possible that it forms a firm foundation for the practice of polygamy within the state of New Jersey.   The Justices have formulated a fundamentally bad decision here whether one is a proponent of gay rights or not.   It oversteps constitutional authority and creates an environment in which no individual can possibly understand the workings of the law.   It completely ignores the government's legitimate purposes in creating a marriage law and regulating the institution of marriage.   It is the work of an activist judiciary which seeks to compel complete acceptance of the practice of homosexuality upon the people of the state whose laws create the Court.   But it cannot hope to accomplish those ends.   Instead, all that has been accomplished is a cheapening of the ages-old institution of marriage.