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Didn't someone say earlier that just because the Bible doesn't particularly name an situation, it doesn't mean the Bible doesn't have a position on it? How is this different from the Constitution? Both were written before some modern issues. Are we never to adapt or move forward, or is this just a convenient excuse to try to prevent something some find offensive?

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I am not comparing the Bible to the Constitution. We can certainly adapt and move forward. It is just that not everything is a Constitutional right.

There is no Constitutional right to privacy. That doesn't mean a right to privacy doesn't exist.

Gay marriage may be an advancement, a great idea, the wave of the future. That doesn't mean there is a US Constitutional right to marry (under the equal protection clause).

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That wasn't my point. Gay marriage is not a Constitutional right. Equal treatment is. Just because the forefathers didn't document a laundry list of each possible situation for inequality doesn't mean the situations aren't covered.

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And equal treatment for what is the issue? There are many things in life where individuals are not treated equally.

What if we found that blondes earn more money than brunettes on average?

Should we sue and should the Courts decide that brunettes have had their Constitutional rights violated?

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Point taken, but I do think there are certain rights that each citizen is Constitutionally entitled to enjoy. Marriage to a partner of their choosing is one.

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Didn't someone say earlier that just because the Bible doesn't particularly name an situation, it doesn't mean the Bible doesn't have a position on it? How is this different from the Constitution? Both were written before some modern issues. Are we never to adapt or move forward, or is this just a convenient excuse to try to prevent something some find offensive?

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I am not comparing the Bible to the Constitution. We can certainly adapt and move forward. It is just that not everything is a Constitutional right.

There is no Constitutional right to privacy. That doesn't mean a right to privacy doesn't exist.

Gay marriage may be an advancement, a great idea, the wave of the future. That doesn't mean there is a US Constitutional right to marry (under the equal protection clause).

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That wasn't my point. Gay marriage is not a Constitutional right. Equal treatment is. Just because the forefathers didn't document a laundry list of each possible situation for inequality doesn't mean the situations aren't covered.

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And equal treatment for what is the issue? There are many things in life where individuals are not treated equally.

What if we found that blondes earn more money than brunettes on average?

Should we sue and should the Courts decide that brunettes have had their Constitutional rights violated?

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Point taken, but I do think there are certain rights that each citizen is Constitutionally entitled to enjoy. Marriage to a partner of their choosing is one.

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I understand and agree; I believe gay marriage should be legal. I don't agree that it is a Constitutional issue.

And don't forget, this was decided under NJ's Constitution, not the US Constitution. For US courts to get involved, they would have to cite a federal law or US Constitutional issue.

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Where is the enumerated right to privacy?

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i believe roe v wade did the leg-work there.

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Constitutional interpretation also means keeping in mind the system the Constitution created.

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who said that anybody didn't?

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under your construct, the states are nothing more than administrative entitites.

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explain

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Remember, the state governments predate the federal government, and if you count the colonial period, predate by over 100 years.

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and...?

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Incest, I can buy. What's the compelling interest in preventing polygamy?

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Confusion of inheritance rights, child custody, spousal support, spousal rights to legal benefits like Social Security, just to name a few. The system deals with the rights of one spouse at a time, the same for everyone.

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But all these things are happening right now with same sex marriage. Why stop at allowing gay marriages and "fixing" the system? Why not say anyone can marry anything, which, while absurd, is where this is all heading.

If you allow for same sex marriages, it is inevitable that you will eventually be forced to allow for polygamous marriages, incestual marriages, etc. because you are saying it doesn't matter what you marry.

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Roe cited an enumerate right to privacy? I have read and re-read the Constitution and I can't find one.

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If there are these unenumerated rights that the federal government can enforce, what stops the federal government from finding any state law unconstitutional by saying the law violates some unenumerated federal right?

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And if these federal rights are unenumerated, how can a legislare draft a law without having an inkling what these rights are and where the boundary is?

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In our system, states ceded specific rights and powers to the federal government. Rights and powers that made sense for a central, national government to do and have.

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I know this happened already, long ago, but I submit it was incorrect.

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now you are coming around, strawman!

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whim of judges

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(sorry i skimmed this from something SP quoted)

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I'm sorry - I'm not sure I understand; am I supposed to take that to mean that you aren't reading my posts? Am I being ignored?

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But all these things are happening right now with same sex marriage. Why stop at allowing gay marriages and "fixing" the system? Why not say anyone can marry anything, which, while absurd, is where this is all heading.

If you allow for same sex marriages, it is inevitable that you will eventually be forced to allow for polygamous marriages, incestual marriages, etc. because you are saying it doesn't matter what you marry.

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pedophilia- easy. kids can't marry because they cannot legally assent to any contract
besitiality- easy. everyone is treated the same. NO ONE may marry an animal
polygamy- easy. NO ONE may marry more than one other person.

somebody must've salted the road of that slippery slope.

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Roe cited an enumerate right to privacy? I have read and re-read the Constitution and I can't find one.

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no, it said that, as a whole, the constitution created the right even though it wasn't specifically enumerated.

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If there are these unenumerated rights that the federal government can enforce, what stops the federal government from finding any state law unconstitutional by saying the law violates some unenumerated federal right?


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cynical? (btw, i was satisfied this decision was only for NJ but if somehow SCOTUS got it, it would stick because the state had grounds and even if a federal right were to allow it to be heard, the basis for such a decision being upheld already exists) so you think judges, put their finger in the air, too, counselor

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And if these federal rights are unenumerated, how can a legislare draft a law without having an inkling what these rights are and where the boundary is?


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they can read precedent like you and i. i didn't realize that something happened that made laws now no longer require future interpretation.

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In our system, states ceded specific rights and powers to the federal government. Rights and powers that made sense for a central, national government to do and have.


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indeed they did. much has changed since that time.

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I know this happened already, long ago, but I submit it was incorrect.


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now you are coming around, strawman!

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One of the first things they taught us in my law school was that judges are not infallable. Too bad your law school did not take the time to do the same.

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If there are these unenumerated rights that the federal government can enforce, what stops the federal government from finding any state law unconstitutional by saying the law violates some unenumerated federal right?

And if these federal rights are unenumerated, how can a legislare draft a law without having an inkling what these rights are and where the boundary is?

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rainier, i was just getting the slippery slope out of the way. it was hindering the thought processes of some.

(btw, my examples were of laws that states CAN make that will pass constitutional muster. same sex marriage is not easy because what is the thing that allows laws to be made prohibiting it? morals/religion?)

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Sounds less like [method of divining the] law and more like alchemy[from the perspective of literalists]

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Naive?

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can be very much so

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The right to privacy is the latest example. Stretching interstate commerce to include a dairy farm that only sells milk within a few miles of the farm was another example of justices sticking their finger in the air to reach a conclusion they wanted to reach.

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What precedent?

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Prior to the Supremes stating there is an unenumerated right, how would someone know? How do the Supremes know? Does something happen when they are sworn in? Are they given a special crystal ball? Some secret handshake that imparts these unnumerated rights?

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Ah, but not the Constitution and through your approach, there is never a need to change it. I wonder why the framers spent so much time haggling over the amendment process?

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Too bad your law school did not take the time to do the same.

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What is it that permits states to make laws prohibiting gambling? polygamy? indecent exposure?

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easy ( )- the legislature can decide whether it wants allow certain conduct or not.

(of course the rub as it applies to this discussion is that they may NOT pass an unconstitutional law)

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If there are these unenumerated rights that the federal government can enforce, what stops the federal government from finding any state law unconstitutional by saying the law violates some unenumerated federal right?

And if these federal rights are unenumerated, how can a legislare draft a law without having an inkling what these rights are and where the boundary is?

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You keep making it sound as though the federal government can expand its powers. It can't.

The Ninth Amendment only allows for unenumerated rights if they are retained by the people . You do acknowledge that the right to privacy (as it currently stands) is a right of the people that limits both state and federal powers, don't you?

This doesn't have anything to do with shifting power to Washington at the expense of the states - it just gives greater rights to individual citizens.

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The federal government overruled a state law

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shall we burn the constitution and start over from scratch? nobody said the process was perfect for everybody. but many are intimating that SCOTUS does not approach their duties with integrity

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if a legislature wants to press an obviously tenuous position

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why not? the constitution, as a whole, already give broad parameters for things that were known at the time and for things such as rights that are incapable of being defined/capable of changing meaning to reflect the times.

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what's that all about, straw? my comment was meant to reflect that reality happened and whether you like how 200+ years of precedent went down or not, we are stuck with it.

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The federal government overruled a state law

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No, what happened was that federal courts struck down a state law as a violation of the rights of individual plaintiffs. There is a huge difference between that and an action of the federal government against the law.

Whether you agree with it or not, you don't want to admit that the right to privacy as it stands is a right that belongs to individuals, as opposed to government, do you?

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How would they know the position was tenuous. Prior to Roe, abortion laws were not in a tenuous position because there was no federal right of privacy the laws were abutting against.

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And the changing meaning is informed by whom? The Supremes? And if the meanings can change, no real need to amend the document.

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WHich begs the quesiton why the mechanism exists.

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Just taking umbrage with your deferrence and reverence to judges generally and the Supremes in particular. It is important to remember they are fallable. It makes you a more critical thinker.

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Mark Lewis and Dennis Winslow, et al. v. Gwendolyn L. Harris, etc., et al. (A-68-05)
Argued February 15, 2006 -- Decided October 25, 2006
ALBIN, J., writing for a majority of the Court.
Plaintiffs are seven same-sex couples who have been in permanent committed relationships for more than
ten years. Each seeks to marry his or her partner and to enjoy the legal, financial, and social benefits that marriage affords. After being denied marriage licenses in their respective municipalities, plaintiffs sued challenging the constitutionality of the State's marriage statutes.
In a complaint filed in the Superior Court, Law Division, plaintiffs sought a declaration that laws denying same-sex marriage violated the liberty and equal protection guarantees of Article I, Paragraph 1 of the New Jersey
Constitution. They also sought injunctive relief compelling the defendant State officials to grant them marriage
licenses. (The named defendants are Gwendolyn L. Harris, former Commissioner of the Department of Human
Services, Clifton R. Lacy, former Commissioner of the Department of Health and Senior Services, and Joseph
Komosinski, former Acting State Registrar of Vital Statistics. For the purpose of this decision, they are being
referred to collectively as the "State.")
Both parties moved for summary judgment. The trial court, Superior Court Judge Linda Feinberg, entered summary judgment in the State's favor and dismissed the complaint. Plaintiffs appealed. In a split decision, the Appellate Division affirmed. Judge Stephen Skillman wrote the majority opinion in which he concluded that New Jersey's marriage statutes do not contravene the substantive due process and equal protection guarantees of Article I,
Paragraph 1 of the State Constitution. He determined that only the Legislature could authorize same-sex marriages.
Appellate Division Judge Anthony Parrillo filed a concurring opinion. Although joining Judge Skillman's
opinion, Judge Parrillo added his view of the twofold nature of the relief sought by plaintiffs -- the right to marry and the rights of marriage. He submitted that it was the Legislature's role to weigh the benefits and costs flowing from a profound change in the meaning of marriage.
Appellate Division Judge Donald Collester, Jr., dissented. He concluded that the substantive due process and equal protection guarantees of Article I, Paragraph 1 obligate the State to afford same-sex couples the right to marry on terms equal to those afforded opposite-sex couples.
The matter came before the Court as an appeal as of right by virtue of the dissent in the Appellate Division.

HELD: Denying committed same-sex couples the financial and social benefits and privileges given to their married
heterosexual counterparts bears no substantial relationship to a legitimate governmental purpose. The Court holds that under the equal protection guarantee of Article I, Paragraph 1 of the New Jersey Constitution, committed amesex
couples must be afforded on equal terms the same rights and benefits enjoyed by opposite-sex couples under the civil marriage statutes. The name to be given to the statutory scheme that provides full rights and benefits to samesex
couples, whether marriage or some other term, is a matter left to the democratic process.

1. As this case presents no factual dispute, the Court addresses solely questions of law. The Court perceives
plaintiffs' equal protection claim to have two components: whether committed same-sex couples have a constitutional right to the benefits and privileges afforded to married heterosexual couples, and, if so, whether they have a constitutional right to have their relationship recognized by the name of marriage. (pp. 19-21)

2. In attempting to discern the substantive rights that are "fundamental" under Article I, Paragraph 1, of the State
Constitution, the Court has followed the general standard adopted by the United States Supreme Court in construing
the Due Process Clause of the Fourteenth Amendment. First, the asserted fundamental liberty interest must be clearly identified. In this case, the identified right is the right of same-sex couples to marry. Second, the liberty interest in same-sex marriage must be objectively and deeply rooted in the traditions, history, and conscience of the people of this State. (pp. 21-25)

3. New Jersey's marriage laws, which were first enacted in 1912, limit marriage to heterosexual couples. The recently enacted Domestic Partnership Act explicitly acknowledges that same-sex couples cannot marry. Although today there is a national debate over whether same-sex marriages should be authorized by the states, the framers of the 1947 New Jersey Constitution could not have imagined that the iberty right protected by Article I, Paragraph 1 embraced same-sex marriage. (pp. 25-28)

4. Times and attitudes have changed. There has been a developing understanding that discrimination against gays
and lesbians is no longer acceptable in this State. On the federal level, the United States Supreme Court has struck
down laws that have unconstitutionally targeted gays and lesbians for disparate treatment. Although plaintiffs rely
on the federal cases to support the argument that they have a fundamental right to marry under our State Constitution, those cases fall far short of establishing a fundamental right to same-sex marriage "deeply rooted in the traditions, history, and conscience of the people of this State." Despite the rich diversity of this State, the tolerance and goodness of its people, and the many recent advances made by gays and lesbians toward achieving social
acceptance and equality under the law, the Court cannot find that the right to same-sex marriage is a fundamental
right under our constitution. (pp. 28-33)

5. The Court has construed the expansive language of Article I, Paragraph 1 to embrace the fundamental guarantee
of equal protection, thereby requiring the Court to determine whether the State's marriage laws permissibly
distinguish between same-sex and heterosexual couples. The test the Court has applied to equal protection claims is
a flexible one that includes three factors: the nature of the right at stake, the extent to which the challenged statutory scheme restricts that right, and the public need for the statutory restriction. (pp. 34-36)

6. In conducting its equal protection analysis, the Court discerns two distinct issues. The first is whether same-sex
couples have the right to the statutory benefits and privileges conferred on heterosexual married couples. Assuming that right, the next issue is whether committed same-sex partners have a constitutional right to define their relationship by the name of marriage. (p. 37)

7. New Jersey's courts and its Legislature have been at the forefront of combating sexual orientation discrimination
and advancing equality of treatment toward gays and lesbians. In 1992, through an amendment to the Law Against
Discrimination (LAD), New Jersey became the fifth state to prohibit discrimination on the basis of "affectional or
sexual orientation." In making sexual orientation a protected category, the Legislature committed New Jersey to the goal of eradicating discrimination against gays and lesbians. In 2004, the Legislature added "domestic partnership status" to the categories protected by the LAD. (pp. 37-40)

8. Discrimination on the basis of sexual orientation is also outlawed in our criminal law and public contracts law.
The Legislature, moreover, created the New Jersey Human Relations Council to promote educational programs
aimed at reducing bias and bias-related acts, identifying sexual orientation as a protected category. In 2004, the
Legislature passed the Domestic Partnership Act, which confers certain benefits and rights on same-sex partners
who enter into a partnership under the Act. (pp. 40-42)
9. The Domestic Partnership Act has failed to bridge the inequality gap between committed same-sex couples and
married opposite-sex couples. Significantly, the economic and financial inequities that are borne by same-sex
domestic partners are also borne by their children. Further, even though same-sex couples are provided fewer
benefits and rights by the Act, they are subject to more stringent requirements to enter into a domestic partnership
than opposite-sex couples entering a marriage. (pp. 43-48)
10. At this point, the Court does not consider whether committed same-sex couples should be allowed to marry, but
only whether those couples are entitled to the same rights and benefits afforded to married heterosexual couples.
Cast in that light, the issue is not about the transformation of the traditional definition of marriage, but about the unequal dispensation of benefits and privileges to one of two similarly situated classes of people. (p. 48)

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Perhaps you constitutional scholars would care to debate what the New Jersey Supreme Court actually said?

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(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

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