30 October 2006

Today's rant

Consider the following statement:
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.
Without any amplifying information, it makes little or no sense, so let me explain. The quoted passage above is the last statement of the recent decision of the New Jersey Supreme Court allowing same sex marriages.

I am not a lawyer, but I did stay at a Holiday Inn Express last night. But seriously, I was a political science major, so I know at least a little bit about how government operates. We operate under a concept called the separation of powers, which means there are three branches of government that have checks and balances on one another. In this way, no one branch alone can control the government.

In the passage above, the New Jersey Supreme Court commands the legislature to "either amend the marriage statutes or enact an appropriate statutory structure..." or else. Or what? What will the Court do if the legislature does nothing?

The Court is trying to have it both ways. Rather than be seen as an "activist" Court by rewriting the statutes themselves (something most judicial activists wouldn't think twice about doing), they are trying to compromise and play it safe by telling the legislature what to do. Unfortunately, our system of government doesn't work that way.

Here's what Peter Sprigg of the Family Research Council had to say (and I agree):
The New Jersey Supreme Court has professed respect for judicial restraint by refusing to change the definition of "marriage." But they have imperiously commanded the state Legislature to either redefine marriage itself, or create a "statutory structure" (such as "civil unions") to grant 100% of the legal rights and benefits of marriage to same-sex couples.

This is not judicial restraint. Courts have no power to command the legislative branch to enact a particular law. That the court has given the Legislature a choice (the frying pan or the fire) in no way mitigates this violation of the separation of powers.

The New Jersey Legislature should therefore simply ignore this command. Indeed, we urge them to go further and follow the lead set by 19 other states, by amending the state constitution to define marriage as the union of a man and a woman (and to make clear that only the Legislature may determine and distribute the "benefits of marriage").

The court based its ruling in part on protections against "discrimination" and limited "domestic partnership" rights already granted to homosexuals by the Legislature.

This rationale - that because the state offers limited "rights," it must offer more expansive ones - turns logic on its head. It should, however, serve as a cautionary tale for politicians who think that such measures to appease homosexual activists will forestall the counterfeiting of marriage itself. Instead, they merely accelerate it.

Society gives benefits to marriage because marriage gives benefits to society. Therefore, the burden of proof must rest upon the advocates of homosexual unions to demonstrate that such unions benefit society (not just the individuals involved) in the same way and to the same degree as marriage between a man and a woman.

Because homosexual unions never result in natural procreation and never provide children with both a mother and a father, this is a burden they simply cannot meet.
"[A]mending the state constitution to define marriage as the union of a man and a woman (and to make clear that only the Legislature may determine and distribute the 'benefits of marriage')" might wake up the Court to realize that they have no such power to command the legislature to do anything. Perhaps they ought to pick up a book on our American system of government and turn to the chapter on the separation of powers. Maybe then will they realize the stupidity of what their "compromise" really looks like.
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