By Bruce Fein
October 31, 2006

The New Jersey Supreme Court's decision in Lewis and Winslow, et al v. Harris last Wednesday requiring the state to recognize homosexual unions on the same terms as heterosexual marriages might have been magnificent sermonizing. It was not judging. The ruling annexed the legislative domain to the judicial domain, usurpation reminiscent of President George W. Bush. The Constitution's checks and balances have never been more out of joint, and have never commanded so few defenders.
    New Jersey's legislature has been a pioneer in prohibiting discrimination based on sexual orientation. In 1992, it amended the Law Against Discrimination (LAD) to make sexual orientation a protected category, and committed the state to eradicating discrimination against gays and lesbians. In 2004, the legislature added "domestic partnership status" to the categories covered by the LAD.
    The statute prohibits discrimination based on sexual orientation in employment, public accommodations, housing and real property, credit and loans, and business transactions. The legislature has also made it a hate crime to commit certain offenses with the purpose of intimidating an individual on account of sexual orientation, and provided the victim with a civil cause of action against the offender. Public officials who deny a person any right, privilege, power or immunity because of sexual orientation may be criminally prosecuted. It is further unlawful to discriminate against gays and lesbians under the Local Public Contracts Law and the Public Schools Contracts Law. The legislature established the New Jersey Human Relations Council to promote educational programs to discourage bias based on sexual orientation, and required school districts to adopt anti-bullying and anti-intimidation policies to protect homosexuals.
    In 2004, the legislature enacted the Domestic Partnership Act (DPA), which made available to same-sex couples some of the rights and benefits enjoyed by married couples under New Jersey laws. They include protection against discrimination, certain visitation and decision-making rights pertaining to health care, certain tax-related benefits, and health and pension benefits extended to spouses.
    In passing the DPA, the legislature trumpeted rhetoric to fuel the next step in the gay and lesbian legislative political agenda: recognition of same-sex marriage, which is not barred by New Jersey's state constitution. Thus, the DPA underscored that the need for 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."
    There seems little doubt that same-sex marriage proponents would have prevailed in the New Jersey legislature in a few more years by persuasion, political organization and voting clout. They confront no legal or social barriers to that end.
    New Jersey's legislative branch is presumptively superior to its judicial branch in fashioning social policies. It best embodies government by the consent of the governed, and incorporates the widest diversity of opinion in its statutes. Democracy, moreover, is founded on the belief that the dignity and trial and error learning achieved by active citizen participation in the process of government -- with all its warts and follies -- is still preferable to rule by Platonic Guardians, even if it were known how they might be identified.
    The New Jersey Supreme Court in Lewis and Winslow turned a deaf ear to these cardinal axioms. It voted 7-0 to compel the legislature to erase any legal distinctions between same-sex and opposite sex unions and to leapfrog the political process. The reasoning was an embarrassment unworthy of the cerebral faculties.
    Writing for the Court, Justice Barry T. Albin first denied that same-sex marriage was a fundamental right under Article I, Paragraph 1 of the state constitution, which dates back to 1844. It provides: "All persons are by nature free and independent, and have certain natural and inalienable rights, among which are those of enjoying and defending life and liberty." Justice Albin fatuously maintained that a right falls within Paragraph 1 only if it is "deeply rooted in this State's history and its people's collective conscience." Any right that satisfies that test will already have found expression in New Jersey's statutes. Justice Albin thus absurdly confines Paragraph 1 to protecting rights that do not need protecting.
     He then composes an ode to the legislative process, which he will instantly disown in a spellbinding display of intellectual anarchy: "In searching for the meaning of 'liberty' under Article I, Paragraph 1, we must resist the temptation of seeing in the majesty of that word only a mirror image of our own strongly held opinions and beliefs. Under the guise of newly found rights, we must be careful not to impose our personal value system on eight-and-one-half million people, thus bypassing the democratic process as the primary means of effecting social change in this State."
    But now comes the surprise O. Henry ending. Justice Albin insists that Paragraph 1 contains a hidden equal protection mandate that is horrified by any legal distinctions between same-sex and opposite sex couples. In other words, according to Justice Albin, paragraph 1's authors intended simultaneously to exalt and to condemn same-sex marriage, contrary to the strong interpretive presumption against legislative dementedness or schizophrenia. And Justice Albin's ode to the political process disappears like the Cheshire cat when he waves his equal protection wand.
    But his whimsies have not yet been exhausted. Justice Albin's soul is tormented over whether to compel the legislature to call a same-sex union "marriage" or some other name. A rose by any other name might smell as sweet, but marriage is different. He thus passes the naming issue to the legislature by rediscovering his ode to the legislature that he lost during his equal protection ruminations: "Whether an issue of such far-reaching social implications as to how to define marriage falls within the judicial or the democratic realm, to many, is debatable. Some may think that this Court should settle the matter, insulating it from public discussion and the political process. Nevertheless, a court must discern not only the limits of its own authority, but also when to exercise forbearance, recognizing that the legitimacy of its decisions rests on reason, not power. We will not short-circuit the democratic process from running its course."
    Whenever the arbitrary forces prevail over the deliberative, as in Lewis and Winslow, the rule of law is wounded.
    
    Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and The Lichfield Group.