Demagogue

The intermediate appellate court in New Jersey turned down a challenge to the state's straights-only marriage law yesterday (pdf). I'm not a New Jersey lawyer, but, as I read the state's jurisdictional rules, the fact that there was a dissent means that the case is automatically appealable to the New Jersey Supreme Court. At the appellate level, a huge number of organizations both for and against marriage equality participated as friends of the court, and the case will only get more attention when it goes up to the state's highest court. Expect a dramatic moment, one way or another, about a year from now, perhaps followed by frantic attempts to amend the New Jersey Constitution or cook up some frivolous federal litigation claim, as we have seen in Massachusetts.

The plaintiffs have based their claim solely on the New Jersey Constitution and have expressly disclaimed any contention that the state law violates the U.S. Constitution. I assume this was a strategic decision to prevent the defendants from removing the case to federal court or appealing the N.J. Supreme Court's ultimate decision to the U.S. Supreme Court. The Massachusetts plaintiffs took the same tack. Strategic or not, it doesn't appear to me that the case would be eligible for U.S. Supreme Court review, no matter which side wins, so the N.J. Supreme Court will have the last word.

As you know, I was skeptical about the Massachusetts SJC's decision in Goodridge, even though as a policy matter I support marriage equality. The article of the New Jersey Constitution at issue has a different text and history from the many Massachusetts constitutional provisions at issue in Goodridge, but, having read in the majority, concurring, and dissenting opinions the interpretive gloss that has previously been placed on the N.J. Constitution, I again find the plaintiffs' arguments of doubtful validity. Unlike in Goodridge, however, I think the pro-equality opinion (the dissent in this instance) is much better written than the pro-status quo opinions. I'm just not quite persuaded that the dissenter's arguments are correct, but they are very well stated. Consider this passage, putting aside for a moment whether you agree or not and focusing on the surgical dissection of the opposing argument and the style of the text:

Moreover, the majority mentions the conventional wisdom of "the role that marriage plays in procreation and providing the optimal environment for child rearing," but no authority is given to justify this "optimal" status. This presents simply as an article of faith and one which ignores the reality of present family life....Further, the argument that opposite-sex persons provide a more suitable environment for raising children because they are married simply underscores that plaintiffs and their children are unjustly treated by denying them a right to marry their committed partners. Finally, there is nothing in the record to indicate that the eight plaintiffs in this case currently raising or having raised children as natural parents, adoptive parents or step-parents, are providing an environment for growth and happiness of the children that is anything less than optimal.

I also enjoyed the dissent's rather snippy discussion of Justice Scalia's dissent in Lawrence (the sodomy case). It's not the most persuasive part of the opinion--the judge never takes on the substance of the gay-marriage-implies-polygamy argument or explains why it's wrong--but I have a professional admiration for the quality of the rhetoric and the stylishness of the writing. Here's Judge Donald Collester of the New Jersey Appellate Division on Scalia:

Which leads me to polygamy. My colleagues view the nature of the right to marry asserted by plaintiffs as equally applicable to polygamy. The spectre of polygamy was raised by Justice Scalia in his Lawrence dissent in which he expanded a slippery slope analysis into a loop-de-loop by arguing that decriminalizing acts of homosexual intimacy would lead to the downfall of moral legislation of society by implicitly authorizing same-sex marriage and polygamy as well as "adult incest, prostitution, masturbation, adultery, fornication, bestiality and obscenity."

It is just as unnecessary for us to consider here the question of the constitutional rights of polygamists to marry persons of their choosing as it would be to join Justice Scalia's wild ride. Plaintiffs do not question the binary aspect of marriage; they embrace it. Moreover, despite the number of amicus curiae [friend of the court] briefs filed in this appeal and the myriad of views presented, no polygamists have applied. One issue of fundamental constitutional rights is enough for now.

In a footnote, Collester refers to "Justice Scalia's tirade." I'd say that's a fair characterization of the tone of many of Scalia's dissents, particularly those involving gay rights.

Unlike Scalia, Collester can show respect to his colleagues (if not to Scalia himself) when writing a dissent. His closing:

With great admiration for the wisdom, logic and eloquence of my colleagues, I must dissent.

I must with the greatest regret dissent from Judge Collester's conclusion, but I admire his display of judicial craftsmanship.