The NJ Supreme Court made a ruling that is sure to have opponents of Gay Marriage in disarray, but at its heart was probably the best ruling that could be expected, when it is analyzed.

The ruling essentially said that gays were entitled to equal protection and the Legislature had to do one of two things:  Either open a path for gay marriage, or make some manner of equivalent civil unions available.

So why is this good?  First of all for what the court did not do.  It did not declare them legal on their face, an act that is commonly denounced as judicial activism.  Instead it deferred to the Legislature to deal with the issue, as it should be.   However the state legislature chooses to do so, it is better then a 7 person court making a ruling in its place.  This is another in a string of recent rulings in which the Court’s have clearly determined that the Legislature is the proper place for these decisions, and deferred.

The other reason I like the substance of the ruling is that it identifies the validity of what I have long believed, and that is that the real answer here is civil unions.

As I have detailed several times (here and here), the issue could easily be solved fairly and equally by making the states offer civil unions to all couples, regardless of gender.  Take the government out of the endorsement of marriage altogether.

Let the churches bestow marriages on any couple they choose, according to their dogma and doctrine.  Those marriages would have no force of law, they would only be recognition within the community.

This makes sense when you consider that the primary issue at stake in the debate is not social recognition, it is state and federal benefits that are bestowed upon married couples, and not (generally) on gays.

The bad news is that none of this offers any help at the Federal level where the most benefits available are still locked out to same sex marriages, and by all predictions will continue to be.

Note, this is an analysis of the Majority opinion, I take no particular position on gay marriage.

My interest is in the larger issue of judicial activism. 

Via Stop the ACLU

I’m listening as I post to Matt Staver of Liberty Counsel speaking to my local radio station (540 WFLA) about breaking news on a California same-sex marriage case. Staver is an attorney who argued the case on the side of upholding a same-sex marriage ban.

According to news posted just minutes ago:

A state appeals court ruled Thursday that California’s marriage laws do not violate the constitutional rights of gays and lesbians, a critical defeat to a movement hungry for a win after high courts in New York and Washington upheld similar bans in those states.

The complete ruling is a whopping 128 pages long, and can be seen here.  I won’t post it all, but it’s summary is interesting.

The majority opinion, written by Justice McGuiness is an amazing one, not solely for the nature of the ruling itself, but for the stance it takes on judicial activism.

He slaps the dissenting Justice right in the first paragraph:

Our dissenting colleague advances theories and arguments not made by the parties or relied on by the trial court and concludes a constitutionally protected privacy interest compels expanding the definition of marriage to include same sex couples.

He acknowledges the severity of the issue nationally and defines the nature of the debate:

Obviously, the question is one of great significance, and it requires us to venture into the storm of a fierce national debate. Both sides believe passionately in their positions.  Both sides believe passionately in their positions. One side argues the time has come for lesbian and gay relationships to enjoy full social equality, and it is fundamentally unfair for the state to continue to reserve marriage as an institution for heterosexual couples only. The other side stresses the need for judicial restraint and the importance of preserving the traditional understanding of marriage—which is very important to many Californians, who fear such a fundamental change will destroy or seriously weaken the institution at the heart of family life.