Try thinking about it this way: this decision is genius. Here's why.
1. It's essentially unanimous. All seven justices agreed that depriving gays of rights associated with marriage is unconstitutional per the equal protection clause. Let there be no doubt: seven of the brightest legal minds in New Jersey agree that this is unequivocally the case.
2. So let's say that you're among the seven bright legal minds, and you heard the case last February and sat down to deliberate. It quickly becomes clear that all seven of you agree. All seven of you even agree on the legal framework underscoring the argument, which is nearly miraculous (as you know if you're a frequent reader of Supreme Court opinions). So since it's immediately apparent that you're going to be issuing a major, culturally significant, socially virulent policy change ...
3. You start talking about the right way to do it. None of them are immune to the "activist judges, legislating from the bench, jamming decisions down our throat" criticism. They may even agree with it, to some degree. They're also fully aware that while the argument associating equal protection with the rights associated with marriage is constitutionally sound, any argument about the word "marriage" - and its religious and social implications - is far grayer. It's extremely difficult to defend, constitutionally.
4. This is important: at least three of the seven justices feel that "marriage" is defensible from a legal perspective. In all likelihood, most of the other four personally feel that marriage *should be* the term that is used. That's the tacit agreement in the intellectual circles to which these people belong, and we tend to agree with our friends, yes/no?
They just don't feel that the semantics around the word form an easily defensible point, constitutionally. Besides, they realize the obvious and they see an incredible opportunity.
5. The obvious: if their decision enforces marital rights AND the use of the term "marriage" to describe them, the conservatives, especially those in the New Jersey Assembly, will have a field day. From a PR perspective, this would be a gigantic win for them. They'd be licking their chops. This could literally become a presidential issue in '08. "Those activist judges are forcing you to accept a biblical sin ... this is not the America you want for your children ... galvanize! and vote to help us reduce the power of the judiciary ... show those hyperintellectual liberal snobs in robes that they can't touch the moral righteousness of Joe Bob, the working man ..."
6. The opportunity: if the decision enforces the marital rights BUT passes the semantic question of their name back to the Assembly, the following happens:
- The win is there. The rights must be granted. The assembly has to eat that.
- The sense that the legislature got to weigh in is there. It's a lot more difficult for the media to freak out about the activist judges.
- Every New Jersey assemblyman will have to go on record with a vote. "Are you pro or are you against?" It forces the legislature to play their cards. And in this state of a slight majority in favor of gay rights, it becomes very difficult to play politics.
- It'll keep the gay rights groups from exploding with joy over a major win and likely hurting their chances in other states with the resulting social backlash.
- It keeps the debate alive. It pours more fuel into public dialogue around "what is equal." Read the decision to see where the justices tell the Plaintiffs that 'their fight has just begun.' These justices want evolving social attitudes to eventually pull the trigger to call gay marriage what it is - marriage. It's OK if it takes 10 years, even 20 years, for the word to enter the common vocabulary, so long as the rights associated with marriage are there much sooner - within 6 months.
7. So here's the solution, they decide. We will write two essentially concurring opinions. The first will set forth the rights without the name. Four of us will sign that one, and our decision is in stone. The second will go further. It will expressly say that marriage by any other name is still marriage, that a rose by any other name is still a rose and eventually will be called for what it simply is - a rose. It will close with a powerful quote, and as telling will be the power of the three justices who will sign it: the Chief, who will retire two hours after the decision is announced and regards this decision as her kiss goodbye. The new Chief, a man of both compassion and religion, a graduate of one Catholic law school who then taught at another. And the best friend of the departing chief, female and fresh, the one who had the guts to ask the core question at the February hearing: "How is that a harm, a change in its meaning [marriage]?" Even better, all three were named to the court by a Republican governor.
The NJ Assembly is going to spend the next two months whipping itself up in a mighty frenzy over one simple word - marriage. By separating the rights from the term, the NJ Supreme Court has pulled the reason and the logic out of the moralistic morass and demanded that they become law. So the only fight that's left is about emotions and feelings surrounding a word, and the important debates that will ensue will help us identify which legislators are truly worthwhile.
It's genius.
They couldn't have done it better. If the gay rights groups are truly smart, they'll simply start calling it gay marriage. TODAY. Because the rose by any other name ---
I felt proud today to be born, raised, educated and employed in New Jersey.
P.S. Assemblyman Richard Merkt will lead the charge against the term "marriage." His daughter was my high school classmate. We all thought she was a lesbian, and fully supported her in that. This truly astounds us. It's sad.
P.P.S. This decision comes from the state capital, Trenton, also known as the birthplace of Antonin Scalia. HAAAAAAAAAAA
So happy to be from NJ right now! What a great day.
Even if they do just end up calling it "civil unions" instead of the correct term--marriage--it's still awesome!
Maybe his LCIC cult would be happier if they started another country with a new Constitution that puts the bible first.
