ConfirmThem

made by Neil Stevens in this diary over at RedState

the court today holds the rights confered to persons by the constitution to be applicable to couples. This seemed off to me, so I'm glad to see someone else was thinking along the same lines.

Well, one will search the Fourteenth Amendment in vain for the words "strict scrutiny," "intermediate scrutiny" or "rational basis," but those are none-the-less the basic components of Federal Equal Protection Analysis. I don't know enough about New Jersey's constitutional jurisprudence to say whether the court is correct in its assertion that “[w]hen a statute is challenged on the ground that it does not apply evenhandedly to similarly situated people … [the New Jersey test is] that the legislation … distinguishing between two classes of people, bear a substantial relationship to a legitimate governmental purpose.”

Also, as the court notes, while the language dates back to the nineteenth century, it was most recently ratifed in 1947, p.22 n.9. Just as the appropriate originalist inquiry into the meaning of the 8th amendment might take into account the long lineage of the phrase "cruel or unusual", it does so in order to ascertain what the meaning of that term was when the Constitution was adopted, notwithstanding what it might have originally meant in the context of the English Bill of Rights. Likewise, while we can draw guidance from the history of the language, we do so in the service of determining what the language meant in 1947 (assuming that it has not subsequently been re-ratified).

~Simon

"Our Constitution was not written in the sands to be washed away by each wave of new judges blown in by each successive political wind." - Turner v. United States, 396 U.S. 398, 426 (1970) (Black, dissenting)

In a good passage from CJ Marshall on interpretation, he wrote in Ogden v Saunders:

Much, too, has been said concerning the principles of construction which ought to be applied to the constitution of the United States. On this subject, also, the Court has taken such frequent occasion to declare its opinion, as to make it unnecessary, at least, to enter again into an elaborate discussion of it. To say that the intention of the instrument must prevail; that this intention must be collected from its words; that its words are to be understood in that sense in which they are generally used by those for whom the instrument was intended; that its provisions are neither to be restricted into insignificance, nor extended to objects not comprehended in them, nor contemplated by its framers;-is to repeat what has been already said more at large, and is all that can be necessary.

While there's certainly room for debate on many issues, to say that a)gay marriage was an object comprehended in the words of the provision or b)contemplated by its framers is, I think, far beyond any plausible argument.

One can discuss things such as aff action, school segregation, interracial marriage in that context with equal protection, but I think it's fairly clear(as clear as can be)that gay marriage was not within its orbit.

When you combine the above with Hamilton's "Irreconcilable Variance" test of Federalist 78, most questions can be answered.

Again, while this case involved a state constitution, I think the same principles apply.

Simon, I've taken a bit of time to dig a little deeper into the meaning of Article I, Paragraph 1 of the present New Jersey Constitution, which I have blockquoted in the blog post. As you know, Article I, Paragraph I explicitly says nothing about "equality." It is almost verbatim the same as Article I, Paragraph 1 of the 1844 Constitution. The 1844 draft Constitution initially said, "all men are born equally free and independent," Journal of Convention, 43. The word "equally" was struck out. This seems to suggest that equal protection should not be read into Article I, Paragraph I of the present New Jersey Constitution.

This conclusion is fortified by Article I, Paragraph 5 of the present New Jersey Constitution, which contains express equality language:

5. No person shall be denied the enjoyment of any civil or military right, nor be discriminated against in the exercise of any civil or military right, nor be segregated in the militia or in the public schools, because of religious principles, race, color, ancestry or national origin.

This Paragraph 5 supplements the federal Equal Protection Clause, which is applicable to New Jersey of course. However, the New Jersey Supreme Court apparently wasn’t satisfied with this Paragraph 5 in combination with the federal Equal Protection Clause. Instead, the New Jersey Supreme Court felt it necessary to jam equal protection into Article I, Paragraph 1.

You're correct that it's important to consider when the New Jersey Supreme Court initially made this leap. If they did so prior to the adoption of the present Constitution in 1947, then you might say that the people of New Jersey acquiesced to this new interpretation of Article I, Paragraph 1. But, actually, it appears that the New Jersey Supreme Court made this leap AFTER adoption of the present state constitution.

The court yesterday cited Greenberg v. Kimmelman, 99 N.J. 552 (1985) for the equal protection principle in Article I, Paragraph 1. Greenberg in turn cited Robinson v. Cahill, 62 N.J. 473 (1973) which in turn cited Bailey v. Engelman, 56 N.J. 54 (1970) which in turn cited Washington National Ins. Co. v. Board of Review, 1 N.J. 545 (1949). This 1949 opinion stated:

The Legislature may, without running afoul of the Fourteenth Amendment or the due process and equality clauses of the State Constitution, N.J.S.A.Const. art. 1, pars. 1, 5, make distinctions of degree having a rational basis; and they will be presumed to rest on that basis if there be any conceivable state of facts which would afford reasonable ground for its action.... While the due process and equal protection guaranties are not coterminous in their spheres of protection, equality of right is fundamental in both. Each forbids class legislation arbitrarily discriminatory against some and favoring others in like circumstances…. These principles of equality in the main were also of the essence of Article I, paragraph 1 and Article IV, section VII, paragraphs 9 and 11 of the State Constitution of 1844. See State Board of Milk Control v. Newark Milk Co., Err. & App.1935, 118 N.J.Eq. 504, 179 A. 116.

That 1949 opinion kind of renders Paragraph 5 superfluous, don’t you think? It kind of ignores the list of forbidden types of discrimination in Paragraph 5, don’t you think? And, when you look at the cited case of State Board of Milk Control v. Newark Milk, 118 N.J. Eq. 504 (1935) which predates the present New Jersey Constitution, the word "equal" is not mentioned once, except in the following sentence which has nothing to do with equal protection: "A mandatory injunction should be phrased in equally specific and positive terms; there should be no vagueness or uncertainty as to the things required to be done." The 1935 case was only about due process, and not about equal protection. The court in the 1935 case also stressed the following point:

A legislative enactment should not be set aside unless its unconstitutionality indisputably appears. If there be a permissible doubt as to the existence of the constitutional limitation invoked against the validity of an act, the courts will not declare the act to be contrary to the Constitution. Attorney-General v. McGuinness, 78 N. J. Law, 346, 75 A. 455. The court cannot substitute its conception of sound public policy for that entertained by the Legislature, if there be no disregard of a constitutional mandate.

The New Jersey Supreme Court would do well today to abide by those principles upon which it purports to rely.

Note: I've added most of this comment as an update to the blog post.

Is anybody aware of any scholarship on the whole issue of courts ordering legislative bodies to enact certain laws? Since Vermont's legislature just acquiesced to their Supreme Court's same-sex decision by enacting a civil unions statute and Massachusetts' legislature did nothing in response to Goodridge, the issue keeps popping up. I know Kansas has been dealing with its Supreme Court ordering the Legislature to spend a certain amount of dollars (decided by the court) on education, but I don't know what other states have dealth with this subject or how the constitutional academic types have treated the subject. But I'm real curious. Can anybody direct me?

Maybe this would help:

"The Legislative Injunction: A Remedy for Unconstitutional Legislative Inaction" by Robert A. Schapiro, Yale Law Journal, Vol. 99, No. 1 (Oct., 1989), pp. 231-250.

for the law journal cite. Much appreciated.