Earlier this week the New Jersey Supreme Court ruled that there was no governmental purpose in denying same-sex couples the benefits of marriage, and that the state had six months to remedy this. Gay marriage, per se, did not have to be one of the remedies, civil unions would also do.
In passing I'll note that this ruling has attracted much less public attention than previous rulings in Massachusetts and Vermont, which might suggest that American politics is heading towards some kind of compromise on this.
While there has been less debate about the decision you don't have to look hard to find [mostly Republican and right-leaning] people criticizing the courts for making this decision. It's telling that the conservative response is to criticize the venue of the decision—the courts— and not (entirely) the decision itself. It's fair to say that until very recently conservative parties in Anglo-American democracies saw the courts as the bulwark of tradition and order against populist change.
It's striking that in America there is a populist right that sees the judiciary and the common law as anti-democratic and revolutionary. Historically conservatives saw the courts as a bulwark against populist democratic change. There are traces of this attitude in Australasia, Canada and Britain, but it's less pronounced because social movements have not used the courts to try and achieve social change quite as much. Perhaps that is for the better, since changes are achieved with democratic support, but I suspect that it reflects rationally different choices in political strategy contingent on legislative and judicial structure.
Now, I'm no lawyer, but one of the defining characteristics of Anglo-American government is that laws are made both by the legislative/executive branches (statue law), and by judges interpreting the law in cases (common law). In almost every setting groups seeking social change use both mechanisms to try and affect change. This is such an established, bipartisan part of our broad political heritage that current critiques of it by people opposed to gay marriage are, I suspect, largely disengenuous.
For the sake of argument, wandering away from the issue at hand, look at the movement for the 8 hour day. Unions campaigned for this at three levels
Venue shopping by political and social movements is an inherent part of the Anglo-American political and legal structure. If some groups really do feel those rules of the "game" are unfair and should be changed, that's a problem, but I'm inclined to guess that for now they're being disengenuous and will happily shop their own ideas round whatever sympathetic legislature or court they feel will take them.
Posted by eroberts at October 30, 2006 03:45 PM | TrackBack