On Gay Rights and the New Jersey Supreme Court

The timing could have been better -- prepare for ample Republican demagoguery in the next two weeks -- but the New Jersey Supreme Court is the latest to establish that gay couples have a fundamental right to the legal protection of their unions. Wisely, the court sent the issue to the legislature, giving them 180 days to craft a suitable law.

By sending the case to the legislature with explicit instructions, it may have somewhat undercut the inevitable lambasting of them as "unelected judges" who are avoiding the popular will. Such critics sortof miss the whole point of the elected judiciary -- the point is that judges are not elected because some rights transcend the will of the majority. There are some rights that the masses, however overwhelming, do not have the right to supplant.

Were it not for unelected judges we quite literally might still have Jim Crow laws. Very, very few advances for minority rights have emerged without the courts intervening at some stage, even if the process never begins or ends with court decisions. And yet the fundamental triumphs of the Civil Rights Movement are among the most significant in allowing America to achieve some of its promise as a city on a hill. If like me you see gay equality as a fundamental issue of civil rights, you understand that at some point the courts were inevitably going to intervene and that these unelected judges are there to protect not only rights for someone not like you, but also rights that you hold dear. Unelected judges today protect what elected bodies too often will not. This is right and just and is why America's judicial system, for all of its flaws, is still a model for the rest of the world.

Update: The New Republic online has an article that explains "Why New Jersey's gay Marriage Ruling Won't Cause a Backlash" that addresses some of the issues I raise.