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Guest Blog

Here is the latest thinking from Bosque Boys friend, Tocqueville:

The New Jersey Supreme Court has unanimously ordered the state to grant all of the privileges and rights of marriage -- but not necessarily the word "marriage" -- to same-sex couples. The legislature has 180 days to act. The court leaves open the possibility that gay-marriage litigants can come back to the state courts at a future date and request full marriage.

Three justices concurred, saying that the state should have been required to grant full marriage under state law. Litigants thus fell one vote short of a majority for same-sex marriage.

This is similar to an earlier Vermont Supreme Court decision. Essentially, this requires (at a bare minimum) a kind of "separate but equal" regime between traditional marriage and gay "whatever you call it." The operative quote appears to be:

"Although we cannot find that a fundamental right to same-sex marriage exists in this State, the unequal dispensation of rights and benefits to committed same-sex partners can no longer be tolerated under our State Constitution. With this State’s legislative and judicial commitment to eradicating sexual orientation discrimination as our backdrop, we now hold that denying rights and benefits to committed same-sex couples that are statutorily given to their heterosexual counterparts violates the equal protection guarantee of Article I, Paragraph 1. To comply with this constitutional mandate, the Legislature must either amend the marriage statutes to include same-sex couples or create a parallel statutory structure, which will provide for, on equal terms, the rights and benefits enjoyed and burdens and obligations borne by married couples. We will not presume that a separate statutory scheme, which uses a title other than marriage, contravenes equal protection principles, so long as the rights and benefits of civil marriage are made equally available to same-sex couples. The name to be given to the statutory scheme that provides full rights and benefits to same-sex couples, whether marriage or some other term, is a matter left to the democratic process."

The decision repeatedly relies on "the substantive due process and equal protection guarantees of Article I, Paragraph 1 of the State Constitution." But Article I, Paragraph 1 of the New Jersey Constitution reads in full:

"All persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness."

The words "due process" or "equal protection" appear nowhere. Although this portion of the NJ Constitution (relied on by the court) has been in place for over 200 years, only today do we finally learn what it has apparently required all along. Here, then, is the revelation of that requirement (with marching orders and a hard deadline to the state's legislative body to boot). A most unusual (and politically calculated) decision (mandating to the legislature), which is backwards from a democratic system that usually percolates from the bottom up, not the top down. As appalling as slavery was, it was resolved by a Civil War and the 13th Amendment. As appalling as segregation was, it was primarily addressed by the 14th Amendment and the Civil Rights Act of 1964 - laws that Congress was not told they "must" pass.

Political Impact

As far as political fallout, I think people can basically tell when judges are legislating policy matters or substituting their own policy preferences for that of the elected branch, and this perception isn't necessarily tied to whether one agrees with the result or not.

If it really is in the constitution, it shouldn't be all that hard to explain where it is and why the basis is found there, and it shouldn't take 90 pages and analogies to things that glow around the sun to say so. If the issue is such a winner, debate it in the open legislature. Otherwise we have surrendered our republic to an unelected elite in black robes who are unaccountable for their decisions. Just once, I'd love to see a legislature respond with the same thing Andrew Jackson did - "John Marshall made his decision, now let him enforce it."

Guest Blog Flash

This just in from Bosque Boys friend, "Tocqueville."

New Jersey marriage decision tomorrow:
So says the state supreme court's media notices page. Expect a decision at 3 p.m. Eastern.

Prediction: New Jersey's Supreme Court will "discover" that the state's constitution guarantees a right to gay marriage.

The deicision will send shockwaves across the country and influence the outcome of various elections in favor of the Republicans.

Guest Blog

The college atop a hill overlooking the Bosque River recently added two luminaries to its galaxy of stars. One of whom, "Jerry Vorhees," at my request, offers this insightful analysis of the US dilemma in re the Korean peninsula. Let's make him feel welcome. Hopefully, we can prevail on him to provide more on this subject and other IR matters in the future:

North Korea has become a "covert province" of the People's Republic of China. We now have evidence of a connection between the AQ Kahn's nuclear network, China, North Korea, and of course Iran. China is playing a delicate game with the United States via their North Korean proxies.

The trick for China is to push the United States to the point of desperation in our desire for Chinese cooperation without actually triggering a war in the region and losing access to lucrative American markets.

What am I getting at? Taiwan. From the first announcement by North Korea that they indeed possessed nuclear weapons, I had my eye on Taiwan. The main obstacle standing in the way of the mainland's desire to intimidate the Taiwanese into a more conciliatory position toward reconciliation is the wide spread belief that if China attacks Taiwan as its government recently voted to authorize, the Americans would feel obligated to intervene.

Indeed the China lobby in Congress would be hysterical if the United States allowed an attack on the Taiwanese to go unchecked. The ultimate objective of this latest Chinese-North Korean gambit could be a softening of the American stance on Taiwan in exchange for real Chinese cooperation on the North Korean issue, an issue they are themselves behind.