Bloodless Coup

well, i hope you're right. about the relative hopelessness of the R's i mean, not the NJ sitch as snafu. i'm feeling a bit Lucy-with-the-football wrt "no really! we've got 'em licked this time! REALLY!" from the D's, sad to say. especially since i've been enraged with the general lack of spine and wrt habeas corpus RIP in particular just now. anyway they may do it, but the shan't be doing it with any more help from me except for the obligatory lever-pull on the day. and if it doesn't come off i'm not gonna feel the slightest bit guilty about it either. i donated more of my time and energy and money in '04. this time, 1) i don't have much of the latter two to spare and 2) as i wrote after the habeas corpus business, dudes, i can't buy you a spine. not even if i had Bill Gates' money. sorry.

SHIT!!!! This is being released tomorrow (Wed.) afternoon. A pro-gay marriage ruling could be just about the only thing that might save the GOP this election cycle. In any event this, bears watching and could have huge implications on how election night turns out.

Take a deep breath. I don't think this is on many people's radar. In any event, isn't a pro-gay rights decision a good thing?

Well I can be happy with it on that front, sure. And it'll be especially nice for gays who care about marriage in that I think New Jersey law is such that people can go in from out of state and get married (not the case in MA, I believe).

However, this could be really, really bad in 2 ways. First, from the polls I've seen it looks like a key reason the Dems are doing so well is that the Republican base is disaffected. This is the kind of thing that could convince some who weren't going to go to the polls that actually they have to. Secondly, where are the competitive House races? Lots of 'em are in PA, OH, KY, Indiana and the like - places were "social conservatives" are a key voting bloc. So if something like this is going to have an impact, you'd think it would drag social conservatives out to vote - and they'll often be voting the districts that this election really rides on.

Well, the news is out:

The State Supreme Court in New Jersey said today that under equal protection guarantees of the state constitution, same-sex couples “must be afforded on equal terms the same rights and benefits enjoyed by opposite-sex couples under the civil marriage statutes.”

But it said that whether that status is called marriage or something else “is a matter left to the democratic process.”

In a 4-3 vote, the court found that an arrangement similar to that of Vermont, which authorizes civil unions between same-sex couples but does not call them marriages, would be consitutional in New Jersey.

How much you wanna bet we're going to hear a lot about that 4/3 vote.

I wouldn't be surprised - but those 3 dissenters argued for full-on marriage. And if THAT part of the dissents gets discussed, well, that could certainly make the majority opinion look less than revolutionary.

Glenn Greenwald has a post at Crooks and Liars:

The New Jersey Supreme Court today ruled (.pdf) that its State Constitution requires that same-sex couples be given exactly the same set of marital rights and privileges which are granted to opposite-sex married couples. But the Court rejected the claim that same-sex couples have a constitutional right to have their relationships recognized as "marriages," ruling instead that it is the right of the legislature to decide whether the institution of marriage should include same-sex couples.

The court's "compromise" decision came in the case of Lewis v. Harris, in which seven same-sex New Jersey couples argued that the state's marriage laws violate the State Constitution's guarantee of equal protection and basic liberties by granting certain marital rights only to opposite-sex couples and by excluding gay couples from the institution of marriage. Already, Bush followers desperate for some issue to cling to are attempting to seize upon this ruling and exploit it for political gain.

Even worse, other Bush followers who are law professors � namely, Ann Althouse ï¿½ are either outright lying about the decision or are incapable of reading (which is worse?), since she is telling her readers today that the "New Jersey Supreme Court finds right to same-sex marriage," even though the court did exactly the opposite: namely, it refused to find a same-sex marriage right and said it was up to the legislature to decide that issue. 

Based on her patently false description of the court's ruling, Althouse excitedly announces that today's court decision "helps the Republicans" and "lights a fire under social conservatives and those who worry about overactive judges."  But that is a total distortion of what the court actually did. What kind of law professor reads about a judicial opinion and then writes on her blog that it says the exact opposite of what it actually says?

Ah, law professors named Ann... what would we do without them?

So I read the concurrence/dissent and breezed over the majority - and yeah, Althouse couldn't be more wrong if she was saying night is day or Everybody Loves Raymond is a laugh riot.

I didn't read the majority closely enough to comment on it deeply, but Chief Justice Poritz's dissent/concurrence is both moving, and to my untrained eye, pretty damn reasonable. And all the Constructivists will appreciate her focus on the power of language.

Chief Justice Poritz' dissent is "moving" and "pretty damn reasonable," and it would make a charismatic presentation on the floor of the New Jersey senate, or whatever they call it there. Furthermore, it's an eloquent presentation of the best argument for a substantive due process-driven ruling. But I think Albin has the best of the SDP discussion, and more generally, the more a judicial opinion sounds like a floor speech, the more likely it is to get ahead of itself and exceed proper judicial prerogatives.

One thing that frustrates me about commentary on state action in this context, be it legislative or judicial, is laypersons' apparent inability -- often abetted by pundits -- to refrain from conflating state and federal law. Although the Court in this case doesn't hesitate to acknowledge parallels between its interpretations of its own due process and equal protection jurisprudence and those of the federal government, they are not the same. Particularly in the context of equal protection of laws, the key here is "of laws," and equal protection of New Jersey laws is a discrete, state-specific inquiry that has nothing to do with Joe Blow in Nebraska. If he liked New Jersey, he'd live there; and there's no risk of Nebraska following New Jersey anytime soon, which is probably why Blow likes it there. Simply put, anyone outside of New Jersey who objects to this ruling is doing so on irrelevant grounds, assuming they aren't sitting down, poring over New Jersey law and precedent, and providing a jurisprudential account of the opinion's infirmity or error.

The Majority relies heavily on New Jersey's persistent, wholly non-ephemeral history, in the past few decades, of protecting people from all manner of discrimination based on sexual orientation. These are the laws in question in the Majority's equal protection analysis, not federal law. And based on those laws, relegating homosexual couples to second-class citizenship creates a huge conceptual rift in New Jersey law -- your employer cannot deny you any privilege due to your sexual orientation, but your state can? Right, exactly -- that's what equal protection is all about, and that's all that this ruling is about. These same four jurists, based on their opinion, might well have denied the equal protection argument in virtually any other state in the union for precisely the converse reason -- the absence of any unequal treatment based on a prohibited classification. New Jersey, with a few other states, is at the spearhead of making sexual orientation a prohibited classification on which to discriminate in various arenas.

I agree with the Majority, at least upon a first review, that the C.J.'s CO/DO overreaches judicial prerogatives particularly in getting into the naming business and to a lesser extent in getting into the substantive due process issue (and my caveat about SDP is that the state clearly has a long line of precedent regarding its state-specific SDP I can't even pretend to know anything about, especially since I only skimmed the parentheticals and read virtually none of the footnotes).

All of this is animated by my long-held position that the whole debate is garbled beyond recognition because of the stupid word "marriage." As noted by the Majority, the word "dates" back to Genesis. It is a quintissentially religious concept that has been co-opted, in name and in fact, into the social contract by virtually every government in history, in one sense or another. But not every government in history -- indeed, very few -- has made it a founding percept that matters of religion and matters of policy should be distinct. To meddle with the word "marriage" to begin with is a violation of the Establishment Clause, in my view, and this whole discussion would be a lot easier if "marriage" were a matter of lexicon and religious fiat and government worried itself only with civil unions in both word and fact.

Ironically, Althouse illustrates perfectly why I have no issue with the Majority Opinion in this case. So the government may choose not to call it marriage at least until the constituents grow restless. So be it. What's going to happen when gay couples introduce themselves in polite society as husbands and wives? What's going to happen when they call themselves married? Is someone going to say, "Oh ho, you mean civilly united, you little imps." Hardly ever. And the people that would do something like that won't buy the institution by whatever name. Althouse, in her hostility, provides evidence in support of my point: marriage by any other name is, well, marriage, however it smells.

The New Jersey ruling, in light of its history of statutory law protecting individuals against sexual orientation discrimination, not only ruled correctly under its equal protection clause. Indeed, and this is borne out by the unanimity on the equal protection issue, the ruling is one of tremendous restraint. The activism at work here, such as it is, has been activism at the democratic level spanning three decades.

Now, that being said, on the SDP issue, I concede that both sides make good points. Poritz is right to point out that SCOTUS framed the issue in Loving as concerning the right of marriage generally. And of course the Dworkin passage, like Poritz' own writing, is an evocative appeal to attitudes I seek in legislators on election day. But Albin is not at all wrong to observe that, outside of those things the state can constitutionally work to prevent -- in particular, procreation by incestuous couples -- the Loving formulation, as Poritz would use it, brooks virtually no restriction on marriage, and certainly envisages polygamy at a minimum. The libertarian in me says, So what?, but the bottom line is polygamy is neither a fundamental right rooted in the traditions of this country or of New Jersey, nor is banning it a violation of equal protection because it does not sound in a suspect or prohibited category -- race, sex, alienage, nationality, and, in New Jersey, sexual orientation.

And that's precisely the point -- that question is bigger than the Court needs to take on to effectuate substantial justice in this case. Candidly, I'm pretty floored by the Majority Opinion just as a specimen of brilliantly clear and methodical legal reasoning and writing. Rarely does an opinion so clearly state its terms, so clearly reason from them, and so clearly defend its approach and holding. I haven't read an opinion that long that fast and felt like I grasped it in full in who knows how long. And I read lots of opinions. For that reason alone, I applaud everyone who worked on that opinion.

Ultimately, I'm quite pleased with the outcome. I don't really care about terminology, I suppose, and I know more than a few straights who are as likely to refer to their opposite-sex husbands or wifes as partner. Ultimately, that was the more artistic aspect of the Majority -- its recognition that terminology changes, and is surely doing so presently at an astonishingly, if insufficiently, rapid pace, but that it's not the place of courts to force that issue. Like it or not, the notion of gay marriage does reflect a social upheaval, and courts by and large try to get out of the way when that happens. At the end of the day, I think that's what the Majority did here, and for wholly respectable reasons.

when the judiciary gets involved like it has here there's really no principled distinction b/t gay marriage and polygamy, or gay marriage and incestious marriages, or gay marriage and marriages between 40 year olds and 10 year olds.
And moon, don't be naive, polygamists are only not a suspect class until the judiciary says they are. and we're well on the way to that (see "bare desire to harm" or "animus" towards a particular group). or, alternatively, and perhaps as likely if the Supreme Court keeps going in the direction its been going, its liberals those who can't handle the democratic process who will rue the day that the spirit of Lochner was revived and allowed to infect other parts of 14th Amendment jurisprudence.

Hi!.

hey, blank, not only didn't you read the opinion (or read the opinion with any interest in what it said instead of merely reading for soundbites that vindicate your preset judiciary-bashing soundbites), but evidently you didn't read what i wrote either.

if you don't live in new jersey, the ambit of its equal protection clause is a) none of your business, and b) almost certainly something you know nothing about. why are people so boneheaded about state law? this is what the _real_ by-gone small government liberty-minded GOP was all about -- states as labaratories. thus, new jersey's a lab. maybe it will make toxic fumes, everyone will catch Teh Gay, and the rest of the country will learn that it was right to be terrified of people based on what holes they like and why. ooooor maybe people will learn that judging people fairly is hard enough without trying to bring into the question what they do with consenting adults under cover of night and behind close doors (exercising private prerogatives on the private property the GOP also used to hold dear).

but the bottom line is, this ruling is really what the old conservative agenda's all about. new jersey has been passing laws for decades leading up to this ruling, and without those laws, as i carefully noted, the court almost surely would have ruled differently. that means that the people of new jersey have spoken as to the meaning of their constitution through their democratic process, the process the contemporary GOP claims it wants more of just until it leads to a result of which it disapproves, in which case, the court stating what is, under the relevant law (N.J. Law) what was so obvious that the court unanimously agreed with regard to the equal protection aspect of the ruling. do you suppose you know more about new jersey law than seven justices whose job it is to know that law, whose ages, party affiliations, and jurisprudential inclinations vary?

until DOMA, marriage was a matter for the states, and so it remains even in DOMA's wake (DOMA only reduced the full faith & credit obligation of the states to recognize each other's marriages). that is, in light of the history and tradition the GOP loves to cite in support of its if-it-was-okay-to-hate-them-then-it's-okay-to-hate-them-now approach to notions of liberty, it's none of the federal government's business how the states define marriage. so explain to me exactly how it is a matter of your concern how vermont, or massachusetts, or hawaii, or new jersey sets up its civil marriage statutes. seriously. and if you live in any of those states, please explain to me why you're unable to wrangle an electoral majority -- as hawaii did -- to overturn any distasteful judicial rulings either by statute or by constitutional amendment, and why you want the courts to intervene on your behalf to hold back modernity for a few more years. after all, it's all about democracy, right?

you hate all the pinko liberals in and from new jersey, i'm sure, so wouldn't they have disappointed you if they'd ruled any other way? who would you bitch about then? the pedophiles, adulterers, liars, thieves, and cheats in your own party's eye? can't have that, can we. don't worry; we're happy to oblige.

wow, moon, take a step back from insanity's edge. you're arguing with an imaginary person. i'm not a republican, nor am i a conservative (maybe you want to re-read what i said about conservatives taking whats got your underware in bunches? not only are you wrong that i don't know anything about NJ's equal protection clause, but the problem (i can't believe I have to make this clearer) is judges (state or federal) who take it upon themselves to decide whats traditionally accepted/recognized by soceity. all it takes is 10, maybe 15 seconds of thinkning to realze this can just as easily be used to make the judiciary a preserver of backwards laws as securer of new freedoms. THAT is my problem and it started with the natural law bablings of Lochner. people (mostly liberals these days) who don't understand what I am talking about will find out soon enough when different judges than those on the bench now with different ideaological bents apply contrary views of what freedoms are traditionally reconized by society. Yes its true, the same natural law musings that legalized abortion can be used to strike down minimum wage laws. Or, in the alternative, the judiciary will continue on its idealogical path and we'll have polygamist marriages and brothers marrying sisters and statutory rape protected behind the veil of the traditional freedom to decide ones intimate relations. Is that what YOU want? And if not HOW do you make distinctions? go ahead, i'd like to hear you try to make a principled argument.

first, i apologize for the assumptions, but your judiciary baiting walks like a duck, talks like a duck, and quacks like a duck.

"whats traditionally accepted/recognized by soceity"

in light of this sentence, however, i don't apologize for accusing you of not knowing what the equal protection clause is about in NJ, or understanding the difference between equal protection and substantive due process jurisprudence. equal protection, state or federal, is not applied only to those fundamental rights enshrined in our histories and traditions, as due process caselaw frames it. the question is simply this: whether the law discriminates against someone based on a forbidden classification. because new jersey has 30 years of statute's on the books barring the same array of de jure discrimination that has been barred for race, sex, etc., by federal courts, the new jersey supreme court, interpreting its own equal protection clause in light of its own statutory law, said that to deny gays the incidents of marriage would, as i paraphrased, "create[] a huge conceptual rift in New Jersey law [whereby] your employer cannot deny you any privilege due to your sexual orientation, but your state can." that's it. fundamental rights has nothing to do with it, and you can't find me one new jersey case that says equal protection extends only to those rights that are fundamental. the importance of the right may modify the standard of review, but that's it. once again, i remind you that seven very different jurists ALL AGREED ON THIS ISSUE!

"people (mostly liberals these days) who don't understand what I am talking about will find out soon enough when different judges than those on the bench now with different ideaological bents apply contrary views of what freedoms are traditionally reconized by society."

you mean, when like better than 60% of the federal bench is appointed by republican presidents? oh wait, that's what we already have. i don't need to wait; jurists whose ideologies i find repugnant are pervasive in the federal court system. and you know what? i think most of them do a bang-up job just the same, because i have a more robust, "coequal" understanding of separation of powers and judicial review, and i don't believe enslaving our law to the tyranny of the majority is in the country's best interest or reflects the constitutional vision of the constitution's Framers.

"the judiciary will continue on its idealogical path and we'll have polygamist marriages and brothers marrying sisters and statutory rape protected behind the veil of the traditional freedom to decide ones intimate relations. Is that what YOU want? And if not HOW do you make distinctions?"

incest: not an equal protection problem under any state or federal law because, unlike race, gender, nationality, or alienage, and in new jersey sexual orientation (based on the democratic mandate reflected in 30 years of statutory law), it's not predicated on a suspect classification subject to strict judicial scrutiny. rather, at most, it's subject to rational basis review, under which courts will uphold the law if ANY RATIONAL BASIS is even conceivable (regardless of what the legislature intended). the reproductive issues alone are a rational basis slam dunk.

not due process because the right to incest is not a fundamental right rooted in our nation's history and traditions.

polygamy: also not equal protection for the same reasons (not predicated on a suspect classification; issues of oppression and reproduction in excess of what the family can afford, etc., rational basis slam dunks), and not due process for the same reasons (not a fundamental right rooted in our nation's history and traditions).

statutory rape: i'm not going to waste the keystrokes. the answer lies in my response to the above two categories.

that's my principled argument. if you want to try to tell me something i don't know about EP and DP, substantive or procedural, knock yourself out. lots of people can, to be sure; based on the above, though, i don't think you're one of them.

"based on the above, thought, i don't think you're one of them"

well, i'm wondering what you can tell me, since your post reads like a black letter commercial outline for a law school student who slept through the semester. You know, plessy was once black letter law too. I'm talking about where the law is going, although I don't blame you for avoiding the questions because its a scary question.

First off, you fail to realize that substantive due process and equal protection have become inexorably tangled together. There are many concurences and dissents from the last 30 years that say exactly that. You're telling me Due Process and EP are distinct when fundamental interests trigger strict scrutiny?(see Boddie v. Conn.) And, of course, Lawrence v. Texas was decided on Due Process grounds, not EP.

And those last three or four paragraphs tell us nothing more than how Justice Moon would analyze incest laws, statutory rape laws and polygamy laws. But its not much help in this debate unless you're going to be a swing vote on the Supreme Court one day.

you know as well as I do that suspect classifications are not the only thing that could trigger strict scrutiny here. Bare desire to harm a group or animus towards a group is all you need. If there is enough animus in laws denying food stamps to hippies to trigger strict scrutiny, then denying people who wish to engage in a polygamist lifestyle could trigger it too.

Not to mention there is no reason to think people wishing to engage in a polygamist lifestyle wont someday become a suspect classification. i mean whats really the difference between discriminating against someone b/c they want to have an intimate relationship with someone of the same sex and discrimination against someone b/c they want to have multiple wives or husbands? Why do you think it wont become a suspect class? please give us something more than "the supreme court hasnt found it to be a suspect class".

you're Due Process argument is equally stale and unresponsive to the real debate that I raised.

of course, it doesnt matter under Due Process whether or not the prohbitied act IS fundamental as traditionally recognized by society, otherwise WE WOULDNT NEED THE DUE PROCESS CLAUSE TO PROTECT IT!

your argument is based on a specified definition of the relevant tradition (a quintessentially conservative approach). But a generalized definition of the tradition, which has been generally embraced by liberals--and was employed in Casey and used to strike down the homosexual sodomoy laws in Lawrence--would make polygamy a question of the fundamental right to decide one's own family and intimate relationships. And with such a generalized definition applied, polyagmy laws would probaby be struck down. Its not a matter of it, its a matter of when under the current jurisprudence of the supreme court.

and though im sure you're time is valuable, don't be so narrow minded to think that society couldnt one day favor statutory rape more than homosexual sodomy which is protected by the Due Process clause (after all it wasnt that long ago that this was the case, and still is in some places in the country)

and there is simply no such thing as "banned classifications" anymore. any use of that phrase is simply short hand for the "law doesnt pass strict scrutiny" used by lazy judges.

"your argument is based on a specified definition of the relevant tradition (a quintessentially conservative approach)."

and as i noted, even those judges with whom i disagree generally do a very good, very restrained job of (little-c) conservatively analyzing and applying the law. as i have now said several times, the basis of the majority opinion in the new jersey case was an inescapable analysis of the law of new jersey, which, through the democratic process, has chosen by implication to define sexual orientation as a suspect class, a fundamentally restrained approach to the issue based on hornbook equal protection law.

you still haven't explained to me how the ruling is activist in the context of the democratic will as expressed through the new jersey law, or how the decision, in the proper context of state law, is in any way unrestrained or cavalier. nor have you explained to me what right a non-new jersey resident has to bitch about the doings of its supreme court, especially when those doings reflect the clear will of the new jersey electorate as manifest in its legislature's conduct not over one or two terms but over thirty years.

and as for your DP and EP analyses, and i use the term loosely,

a) while the occasional concurrence or dissent anticipates later evolution in the law, it's still a concurrence or dissent for a reason, and has no binding effect whatsoever in subsequent cases and on inferior courts,

b) what might happen under those clauses isn't what has, and if you want to scare me you'll have to do better than threatening me with the paranoic visions of a prospectively active judiciary, since courts don't change that much over time, and typically they track the democratic preferences of the people over time (q.v., the supermajority of american citizens who favor access to abortion in early term pregnancies, the majority of american citizens who don't think it's any business of the law which consenting adult sleeps with which consenting adult), and

c) my thumbnail analyses of what would happen to each of your parade of horribles reflects today's law, hidebound law, the sort of stuff that doesn't change. are there places where EP and DP overlap? sure. but the critical factor in strict scrutiny in either context is discrimination predicated on immutable characteristics which are, in effect, accidents of birth. some believe homosexuality is one of those things. the federal government, as yet, does not. the new jersey government, however, differs. in any case, elevated scrutiny still may require upholding a given law if the government has a demonstrable compelling interest and the law in question is narrowly tailored (i know, more boring law school stuff; i'm an idiot and pale beside your mastery of the relevant doctrines, but when you drop delusions of a cabal, fyi, you find that a lot of these legal principles _are_ pretty simple), and it takes quite a reach to imagine that, given huge societal norms against polygamy, incest, and statutory rape, as well as a clear and quantifiable connection between those practices and widespread harm to individuals and the social fabric generally, that anyone's going to succeed, anytime soon, in convincing any court anywhere that laws against these practices don't survive whatever level of scrutiny is brought to bear.

i also noticed that i'm no longer hearing about a stacked, leftist federal bench, which means, i take it, that you concede the veracity of the point that it's a conservative federal bench, both in the aggregate and in most circuits (even the ninth, i believe, has more GOP appointees than dems), you have to blame for such activism as you can find at the federal level. and of course a gop court issued lawrence, a decision consistent with the impulses of a majority of americans -- and high time. it's also worth noting that romer was an aberration even in its time; it was never cited favorably in any majority decision of the Court thereafter.

moon

im beyond the NJ law (is that allowed?). I'll even concede on every argument you made above that touches solely on NJ law.

Although I see you can't get beyond today's precedents to consider the possible ramifications of their underlying reasoning. Mr. Binding effect over here leads one to believe that American Constitutional law has been static as per individual rights for the last 200 years.

Concurrences and dissents are often useful in un-covering the true reasoning behind the majority's holding (Who in their right mind thinks the majority in Griswold is going to cite to Lochner?) and the implications of that reasoning going forward.

Since it rests almost exclusively on seemingly "controlling" precedents, you're argument is probably quite similar to arguments most people would have made after Griswold if they were told its substantive due process undercurrent would lead to the a constitutional right for abortion and the right to engage in homosexual sodomy. I submit that when Griswold was decided neither abortion nor engaging in homosexual sosdomy was generally accepted by American soceity, let alone seen as a fundamental right. The Court was several steps ahead of American society on those decisions, what leads you to believe it wouldnt be several steps ahead on polygamy, incest and statutory rape? after all, the only objective manifestations that pointed to whether society had accepted or rejected the prohibitied conduct were the challanged laws that prohibitied it. (nice try on citing to current public opinion on right to an abortion rather than public opinion on the right to abortion when Roe was decided--hint, hint, there might be a slight difference).

You vastly underestimate or fail to realize the 1th A. nalytical drift the Court has been on over the last few decades, how malleable the "tests" they have been set up in the process are, the extent to which judges(regardless of their ideaological bent) can and--under the relevant provisions of the 14th--do refuse to follow seemingly controlling precedent by distinguishing cases. Maybe they are just a litte more creative than you. Which I guess would make you the perfect jurist to solve this problem.

You're formalistic treatment of the Court's strict scruiny jurisprudence would make Thurgood Marshall role over in his grave.

basically every other class of people who have been discirminated against (usually supported by sceintific evidence purporting justify the discrimination) in the past have been given at least heightened scrutiny protection, so with the fundamental right of deciding intimate and family relationships thrown in what makes you think polygamists wont become a suspect class? Wait, let me guess, because as of today its not one?

you havent even touched the animus prong of strict scrutiny. Its a legitimate legal doctrine, and I thought "legal doctrines are pretty simple"?

but then again, who needs legal doctrine when you can invoke "natural law" and newly broadened "tradition" through the 14th A.

if you concede my points regarding NJ law, we're basically done here, since notwithstanding your efforts to bait me onto broader questions -- evidently, in hopes that i'll agree with you that what happened in the NJ Supreme Court under state law is somehow indicative of federal trends, a proposition i absolutely reject, albeit with some degree of regret -- i've been careful to emphasize that i'm commending only the probity and restraint of a new jersey court interpreting new jersey law. in case you've forgotten, my original post, which resisted in the first paragraph armand's inclination to adopt poritz's broad due process-driven dissent, began its second paragraph with this inflammatory argument regarding the evil evil evil activist federal judiciary: "One thing that frustrates me about commentary on state action in this context, be it legislative or judicial, is laypersons' apparent inability -- often abetted by pundits -- to refrain from conflating state and federal law." and you illustrate my point perfectly.

regarding concurrences and dissents, sometimes they do reveal underlying aspects of the majority opinion; other times they reveal the tendentious interpretation of an MO by a pissed off jurist with an axe to grind, and the bitch of it is it's all but impossible to know which is the appropriate lens to use in viewing any given dissent. just because the republicans have it that anyone who doesn't think that a iraq is an appropriate situs for the war on terrir is for "cutting and running" and is "soft on terror" doesn't make it so. in contemporary america, that too reflects the axe-grinding dissenting opinion of those whose views reflect a minority view. in dissent, this faction can say whatever it wants about the majority of americans who want out of iraq, but to read it out of context as gospel is merely to reveal that you share their biases, not that you have a corner on the truth about what animates the majority's view about the iraq war. and the fact remains that what controls is the grounds of decision, not the unspoken content underlying the majority opinion, thus it is the words of the majority, not the conjectures of the dissent, that comprise the binding effect (if only the same were true regading the war on terror). and for every case you've got buzzing in your bonnet i've got 250 where stare decisis in its most elementary and uncontroversial form prevailed. since i traffic in the law i worry about those 250 cases, since they're the stuff of the law, and the one outlying case, if that it be, is the stuff of FOX News.

as for roe, i'm not positive of my footing statistically, but the trend toward greater access to abortion absolutely was rolling by the time of the decision. and of course, for everyone who bitches about roe, my response is to ask whether the brown court, the legal reasoning offered in support of which was far shakier than roe's as a matter of legal theory, also should have waited twenty or thirty or more years than have passed since that decision for alabama to decide that it could let its white students study beside its black students? go ahead, be consistent -- i dare you. (to be clear, i'm not equating abortion and civil rights for present purposes -- i'm merely comparing two cases where the court anticipated rather than tracked the electorate, neither of which was decided on an especially strong legal basis; to dislike one for formal electorate-defying purposes ought to entail disliking the other.)

as for the rest of your comments, there are hints of legal reading, but none of legal reasoning, and i see no benefit to responding in depth. if you want to believe that state-sanctioned incest, polygamy, and statutory rape are just around the corner, that's fine. either you're mounting the usual rick santorum obscurantist homophobic bullshit, based on predicates you don't actually believe will obtain, in which case you're arguing in bad faith and i've got better ways to spend my time, or you actually believe that tripe, in which case there's nothing i can do for you except to send you (back?) to first-year con law for a do over.

and for the record, merely invoking lochner does not imbue otherwise hollow legal fear-mongering with legitimacy. and actually, if you want to get into the potential for polymorphousness and mischief in the equal protection clause, i'd suggest that bush v. gore provides far more fodder.

Just for the record - Armand is not necessarily inclined to adopt Poritz's dissent. Armand finds it reasonable. But he'll readily admit to not being schooled enough in the particulars of these debates - or New Jersey law generally - to strongly assert that it's a better opinion than the majority.

and i didn't reject it out of hand, to be fair. i merely observed that it's the stuff of a floor speech, not a dispositive opinion under the peculiar circumstances of that case. which in isolation perhaps even [blank] would agree with. ;-)