By now, everyone has seen yesterday’s decision in the New Jersey Supreme Court regarding same-sex marriage. Coverage in the local and online MSM has been interesting, as it seems each writer has a different spin on what this means.
For me, it means that the people of New Jersey will have to deal with this issue. Not the people of California, New York or North Carolina, and, certainly, not the people of Virginia. Unless someone has figured out how Virginia can be annexed by New Jersey, the effect of that ruling here is zilch.
Now, a whole lot of folks out there are using this ruling as a reason for supporting the so-called Marriage Amendment here in Virginia, saying that the same thing – those activist judges again – could happen here. Well, before you get your panties in a knot, I urge you to head over to the SW Virginia Law Blog and have a look at the analysis provided by Steve Minor. Since one of Mr. Minor’s areas of practice is Constitutional Law, I think he might just be on to something here:
The opinion is written in such a way that it could never be followed in Virginia. The Court cites all the protections against discrimination based on sexual orientation written into the law of New Jersey. None of this background exists in Virginia law. I doubt that the analysis in this case would make it any more likely that some day the Virginia Supreme Court will find that the statutory ban on same-sex marriage violates the Virginia Constitution.
[…]
The opinion distinguishes New Jersey from other states that “have expressed open hostility toward legally recognizing committed same-sex relationships,” and includes Virginia in that list, along with Alaska, Georgia, Kansas, Kentucky, Louisiana, Michigan, Nebraska, North Dakota, Ohio, Oklahoma, Texas, and Utah.
So there you have it.
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I tend to agree with Steve in his analysis of how the NJ Supreme Court reached their opinion, and how it can be distinguished from other states (like Virginia) who have same-sex bans. But just because the same argument could not be made here doesn’t mean that it would not be made. The truth of the matter is, I found the argument of the NJ Court to be faulty because they didn’t have the power to do what they did in the first place. And when it comes to that issue, faulty reasoning and judicial abuses can come in any form, on any issue, and it can happen here in Virginia. So I think the activist judge argument is a little more real than one might think. Personally, I believe this is an issue for the people, whether it be the people of New Jersey, or the people of Virginia in a couple of weeks, and not for a select few on a court to decide. It’s too big of an issue to allow the will of the people to be by-passed. Come visit my site soon, as I hope to elaborate on this a little more.
Show me an activist judge in Virginia and I’ll show you a judge who is no longer on the bench. That dog just doesn’t hunt in Virginia, where the judges are appointed by the legislature. The General Assembly has removed judges for a lot less – ask Verbena Askew or Katherine Howe Jones.
Yeah, and we thought we’d never have another King George, either. I never say what can’t happen in politics.
I wish our Congresscritters were as diligent about removing bad judges.
Jack has pointed out the difference: federal judges versus state judges. You cannot compare the two.