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    October 27, 2006

    There he goes again…

    Posted by: Chris

    Georgebush It took about 24 hours before Karl Rove had President Bush distorting Wednesday's New Jersey Supreme Court ruling, which ordered the state to provide gay couples all the rights and benefits of marriage but left to the Legislature whether to open up "traditional marriage" to same-sex couples.  In a half-hour speech in Des Moines that mostly focused on Iraq and taxes, Bush briefly addressed the decision, according to this Radio Iowa report:

    Bush told the crowd in Des Moines that traditional marriage is a "fundamental institution" of civilization. "We had another activist court issue a ruling that raises doubts about the institution of marriage. I believe that marriage is a union between a man and a woman," Bush said.

    Bush in the past has said he believes states have the authory to enact laws creating so-called "civil unions" which extend some legal rights to gay couples, but Bush supports passage of an amendment to the U.S. Constitution which would declare the only legal marriages in America are those between a man and a woman. "I believe it's a sacred institution that is critical to the health of our society and the well-being of families and it must be defended," Bush said. The crowd applauded, and then Bush moved on to another topic.

    It's easy to see how the New Jersey opinion is a weak substitute for the landmark Massachusetts decision when it comes to riling up evangelical conservatives; more like a bland chicken marsala than the red meat they were thrown during the 2004 campaign.  The New Jersey ruling "raises doubts about the institution of marriage"? Not particularly effective, as fear-mongering goes, especially considering the court refused to order the state to marry gay couples, instead leaving the issue to the democratically elected Legislature.

    It's also ironic that Bush would call marriage a "fundamental institution," since it was the three dissenters in the New Jersey case who agreed, arguing that all Americans (yes, including gay and lesbian Americans) have a "fundamental right to marry," making any limitations on marriage subject to higher scrutiny than ordinary rights and freedoms. They went on to conclude that they would have ordered the state to begin marrying gay couples.

    It was the New Jersey court majority, on the other hand, that argued — rather circularly — that the right sought by the seven gay couples who sued there was the "right to same-sex marriage," effectively concluding at the beginning what they decided at the end: that "gay marriage"  is an entirely different institution from heterosexual marriage.  Since "only rights that are deeply rooted in the traditions, history, and conscience of the people are deemed to be fundamental," it was easy work for the 4-3 court majority to conclude the "right to same-sex marriage" is not fundamental.

    That's one of the ways the court majority was wrong on the law: by concluding there is somehow a fundamental right to heterosexual marry but no fundamental right to gay marry.

    Follow the jump for what how the U.S. Supreme Court feels about this:

    Remember what the U.S. Supreme Court said in the Lawrence vs. Texas sodomy decision.  Back in 1996, the court majority in Bowers vs. Hardwick had said the right at stake was "the right to engage in homosexual sodomy," which they made quick work of, since there was no deeply rooted American tradition of protecting gay sex.

    That conclusion, Justice Anthony Kennedy wrote for the majority in Lawrence in 2003, "discloses the court's own failure to appreciate the extent of the liberty at stake."  Wrote Kennedy:


    To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse.

    It was similarly demeaning for the New Jersey court majority to claim the seven gay couples who sued wanted to the right to gay marry. They wanted to right to marry, like any other loving, committed couple.

    Nonetheless, the result reached by the court — however wrong on the law — will be a weak boogeyman for Republicans staring down a very scary Election Day.



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    1. Hunter on Oct 29, 2006 7:22:33 AM:

      It's nice to see someone else who recognizes that the politicians, and all too often the judges, involved in this issue are asking the wrong question. It's not about what rights constitutions grant, it's about how far governments may go in limiting those rights.

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