Thursday, October 26, 2006


Having now read the New Jersey Supreme Court's gay marriage decision -- Lewis v. Harris -- we have a few observations on the decision:

First, we were wrong on our prediction that the decision would not be unanimous. Although there was a 4-3 split, at the end of the day the 7 justices agreed that marriage or the equivalent must be afforded to gay couples. We did think there would be an actual dissent, somewhat in line with the New York Court of Appeals decision a few months ago in which the court left decisions on defining marriage to the legislature.

Second, the split was interesting. The 3 justices who would have ordered full marriage for gay couples are all, essentially, tenured and will never face the appointment and confirmation process again. Under New Jersey's constitution, members of the judiciary are appointed by the governor and confirmed by the state senate for an initial 7-year term. At the end of that term, the governor must reappoint the judge or justice (if he or she so chooses). If reappointed and then confirmed by the senate again, that judge has tenure until the mandatory retirement age of 70. Chief Justice Poritz, who turned 70 today, retired yesterday after the opinion was issued. Justice Zazzalli, who was confirmed by the senate as chief justice just two days before this decision was issue, will be 70 this coming July and will not face another confirmation hearing before then. Justice Long was recently reappointed and reconfirmed and now has her job until she turns 70 in 2012.

The four justices in the majority will all face reappointment over the next several years. Justice LaVecchia, who was sworn in to a term beginning on February 1, 2000, is up for reappointment in a few short months. Then comes Justice Albin, who will face reappointment in September 2009, Justice Wallace in September 2010 and Justice Rivera-Soto in September 2011.Was there a reason for the tenure v. non-tenure split, given the outcome? Who knows, but we thought it was interesting that the four members of the court who will face questioning from the state senate during their reconfirmations over the next few years didn't find that gay marriage was a fundamental right, something that the tenured justices would have found.

Third, the Democrat leaders in the legislature weren't too happy with the 180-day time period given by the court. Considering that New Jersey can't do a damn thing in 6-months, changing the state's entire marriage regime in that time seems a little ambitious. Snaps to Senate President Richard J. Codey and Assembly Speaker Joseph J. Roberts Jr. for telling the court what they thought about the timeframe:
"Given the fact that it took the judicial system nearly four years to come up with a 4-3 split decision, we think the determination by only four justices that the entire Legislature is obligated to respond within 180 days is unreasonable."
So there, justices!

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