Who Has the Right To Define What Marriage Is?
And Who Has the Right To Define What Marriage Means?

Two totally different questions.

The Court didn’t “allow the legislature to fix” the error…the Court “ORDERED” (the preverbal “gun to the head”) one of two options. Once a law is ruled unconstitutional, it is unusual – very unique, for the Court to order the legislature to pass a COURT ORDERED Law.
There are many options that the legislature could have used to satisfy the equal protection violation that the Court claimed existed here.

The plaintiffs* in the case sought two things:

1. “A declaration that laws denying same-sex marriage violated the liberty and equal protection guarantees of Article I of the NJ Constitution” ;
2. “Injunctive relief compelling the defendant State officials to grant them marriage licenses”

The Superior Court judge on my side too: he ruled for the State (which was appealed to the NJSC) stating “only the legislature could authorize same-sex marriages”. My point exactly.

The plaintiffs didn’t realize it but an important distinction has to be made in that what they are actually seeking is more than they know in terms of the difference between the right FOR marry and the rights OF marriage. Two different things indeed.
These terms and definitions therein are the sole mandate of the Legislature, not nine judges of any particular court.
Even the NJSC seems to understand that it doesn’t have the authority to define marriage – after all they stated “..whether marriage or some other term, is a matter left to the democratic process”*. Glad to see the Founders of this Republic had some influence even on the NJSC!

There is a law on the books that addresses this: Domestic Partnership Act, as the NJSC states “explicitly acknowledges that same-sex couple cannot marry. “
The NJSC then goes on to say, infamously I might add, “Time and attitudes have changed”. How arrogant!
The NJSC finally states: “..the Court cannot find that the right to same-sex marriage is a fundamental right under our Constitution” Given this Court's history - which even the liberal professor from Harvard, Laurence Tribe stated in refering their ability to leave out words of laws and make things up, "irresponsible", one wonders why the NJSC just didn't miraculously "find" this right in NJ Law!

The NJSC finally ruled that the marriage laws themselves are NOT unconstitutional as they exist but rather equal benefits are being denied to same-sex couples and thus the legislature must address this “within 180” by doing one of two things:

1. Amend the marriage statues;
2. Enact an appropriate statutory structure …i.e. pass another law (which is what they did, hence “civil union”)


*Mark Lewis and Dennis Winslow, et al. v. Gwendolyn L. Harris, etc., et al (A-68-05)
Argued Feb 15, 2006 -Decided Oct 25, 2006

NJ Supreme Court's ruling: http://msnbcmedia.msn.com/i/msnbc/sections/news/njruling.pdf