PROCEDURE MASKING SUBSTANCE. Tom Maguire objects to my suggestion that objections to the Supreme Court of New Jersey 's recent decision from (nominal) supporters of civil unions are, at bottom, substantive rather than procedural:

My personal opinion is that gay marriage or civil unions is fine if enacted by the state legislature but wrong if crammed down by judicial fiat. How would pollsters, or Mr. Lemieux, score that? Surely I am not alone in believing that process counts.

Maguire is, of course, correct that the fact that a majority of New Jersey's citizens support civil unions goes only to the questions of whether the decision is "countermajoritarian," and neither here not there in terms of the merits of the opinion. But he doesn't quote the passage where I actually address his point:

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.

The problem is that I don't see any evidence that, as a general rule, Reynolds or Volokh believe that exercises of judicial review based on ambiguous constitutional provisions represent cramming policy judgments down the throats of the public. (This may not be applicable to Maguire, although the stray references to Kelo I found on his blog suggest that he believes that the federal courts should, to use his purported vision of the democratic process, "cram" a judicially-determined conception of public use "down the throats" of the public against the will of elected officials.) And it's not just Kelo; Reynolds and Volokh also seem to support more aggressive Supreme Court policing of federal powers, for example. Moreover, given that Reynolds, Volokh and Maguire pre-empitvely oppose any judicial decision expanding marriage benefits irrespective of the text, history and precedents of an individual state's constitutional order, it's implausible that this is simply about the fine points of legal doctrine. "Process" matters here only in the trite sense that of course the courts shouldn't strike down laws without a constitutional basis, but given that there's surely at least a plausible argument that the denial of marriage benefits to same-sex couples is inconsistent with broad guarantees of equal protection, that doesn't do any real work in this case. What's going on here is that Reynolds et al. place a higher substantive value on the rights of property owners than on the rights of gay people. That's their privilege, but they should defend that rather than hiding behind banalties about judicial restraint that are clearly intertwined with substantive judgments about the merits of rights claims.

--Scott Lemieux

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