THE MAJORITARIAN DIFFICULTY. Glenn Greenwald makes a very important point about yesterday's judicial decision in New Jersey:
The decision today is entirely consistent with the democratic will of New Jersey residents. The New Jersey legislature already enacted a domestic partnership bill two years ago which recognizes, and grants a whole array of marital rights to, same-sex couples. But the way the laws were written, some rights were still assigned only to "married" couples. The court decision today simply requires that those same-sex partnerships have all of the rights which are given to married couples. But New Jersey voters, through their representatives, already approved of recognition of same-sex relationships two years ago.
Those who see a major backlash from the judicial ruling seem to assume that such decisions are counter-majoritarian. But civil unions have majority support in the country, and in New Jersey civil unions are supported by an almost two-to-one margin. Whether the decision is right or wrong, it cannot be wrong because it's inconsistent with majority opinion in the state.
Speaking of which, I would be interested in a more robust explanation of why nominal supporters of gay marriage such as Eugene Volokh and Glenn Reynolds oppose these judicial decisions, which are based on a perfectly plausible (although contestable, and opposed by precedent) reading of equal protection clauses. It certainly can't be a general commitment to judicial deference to the legislatures in cases where the constitutional text is ambiguous--when the Supreme Court deferred to state legislatures in Kelo, for example, Reynolds and Volokh strongly disagreed, arguing that the Supreme Court should adopt a plausible (but contestable, and opposed by precedent) reading of the takings clause that would have the federal courts use a broad conception of "public use" to trump the judgments of elected officials. And there's certainly no evidence that this decision will be unpopular among the citizens of New Jersey. Somehow, I suspect that if the marriage rights of heterosexual law professors rather than gay people were being arbitrarily denied, this concern with procedures would suddenly vanish.