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.
–Scott Lemieux