New Jersey!

The Supreme Court in the Garden State has just decided that homosexual couples are entitled to the same legal rights as heterosexual couples. While, as the Yahoo! article notes, they did not say that gay couples had the right to "marriage" per se, they did give the Legislature a 180-day deadline to change marriage laws.

That change can take one of two forms: allow gay couples into the institution of marriage as currently constituted, or create a parallel "civil union" status. For those of you who want the legalese, the decision can be found in .pdf format here.

It should come as no surprise that I dislike this decision. Not because I object to gay marriage - I favor it wholeheartedly - but because I object to this sort of gibberish:

Although courts can ensure equal treatment, they cannot guarantee social acceptance, which must come through the evolving ethos of a maturing society. Plaintiffs' quest does not end here. They must now appeal to their fellow citizens whose voices are heard through their popularly elected representatives.

The evolving ethos of a maturing society? Plaintiffs' quest? This isn't what an impartial judge sounds like, is it?

I expect that soon we will hear analogies made to the advance of civil rights for racial minorities, the inference being that any who oppose court-mandated civil unions are equivalent to those who opposed the Brown ruling in 1954 and subsequent rulings thereafter. Let me tell you why I disagree.

When judges began applying equal protection clauses to the states with regard to segregation, there existed prior legislative intent. That is, during Reconstruction the Congress passed numerous laws - and three Amendments to the Constitution! - whose unequivocal intent and plain meaning was legal equality for black citizens.

The 13th ended the peculiar institution of slavery, which had been primarily if not solely directed against blacks; the 14th maintained that states could not deny citizenship to those native-born (again, former slaves); and the 15th said that states could not deny the right to vote on a racial basis. Why was this necessary? Because previously, the states had the authority to deny legal rights (and even personhood) on the basis of race. So amendments were needed to take from the states this power.

Then came the decades and decades of backsliding, during which vile Jim Crow laws crept up and were condoned by subsequent Supreme Courts, most notably in the Plessy decision. Yet throughout this whole process, the original meaning of the 13th-15th Amendments remained, albeit unenforced. It was to this original meaning that the civil rights leaders successfully appealed. The Brown decision did not infer some new right from a previously unexplored doctrine; it merely held that state laws were not in concordance with the original meaning of the federal statutes.

In the case of gay marriage, however, we are talking about an innovation. The plain and original meaning of state marriage statutes is that a legally married couple consists of one man and one woman. Not only that, this has been the meaning of marriage in the states (New Jersey included) throughout their respective histories. There is no other prior statute or meaning to be inferred. So to say that an equal protection clause - New Jersey's, by the way, is somewhat vague - mandates civil unions raises the question: why didn't the clause mandate civil unions two years ago, five years ago, ten years ago?

This is where the recourse to "evolving society" comes in, naturally. What that basically means is that, ten years ago, elite opinion didn't hold that gay couples had this legal right, but now it does. The law, meanwhile, has not changed one iota. But the purpose of the courts is precisely not to be swayed by opinions, elite or populist, as both are equally liable to error, but to interpret from the plain meaning of the constitution and the laws.