Yesterday’s Lewis v. Harris ruling by the New Jersey State Supreme Court is truly unfortunate. In a 4-3 split decision, all seven justices cited the state’s efforts to end discrimination based upon sexual orientation against individuals to defend their decision to extend the equal protection article of the state constitution to homosexual couples . The justices unanimously agreed that the New Jersey legislature must create a legal framework for same-sex unions on par with opposite-sex unions (i.e., marriage). The dissent was over only whether these had to be called marriages. The majority said no: "The name to be given to the statutory scheme that provides full rights and benefits to same sex couples, whether marriage or some other term, is a matter left to the democratic process." In other words, the people cannot decide whether same-sex unions serve the public interest, only what to name them. Make no mistake about it: This is same-sex "marriage," just in sheepskin. All entities in the State of New Jersey will be forced to treat same-sex unions as the equivalent of marriage.
The seven judges ignored a wellspring of evidence and reasoning in support of marriage as we have known it for millennia¯and as New Jersey citizens have codified it in law ¯ in replacing the decided judgment of the people with their own opinions. This is a major blow to democratic self-government and sound judicial review. Beyond this procedural injustice, however, lies a substantive error: The justices failed to understand the authentic nature of marriage. For that error the institution of marriage and the people of New Jersey¯particularly children¯will suffer the consequences.
That New Jersey marriage law should be left to democratic deliberation isn’t an ad hoc decision or a partisan proposal: The very nature of man¯human dignity and equality¯requires it. The people rightly claim the prerogative to deliberate about how to order their common life not only because sound decisions are thus more likely but because there are no natural superiors or inferiors. There isn’t a ruling class and a ruled class. All citizens stand on equal footing with regards to participation in the shaping of the state’s laws, laws that are binding on all citizens.
But the court in Lewis v. Harris has flouted these principles in a clear instance of judicial aristocracy. Seven unelected and electorally unaccountable justices have not only ignored but flatly rejected the judgments of the people. For the constitution itself leaves questions regarding marriage to the legislature, not the courts. In the absence of any basis that gives it to the court, the judiciary should not override the decisions made by the people through their elected representatives. If same-sex "marriage" is to be legally sanctioned in New Jersey, the people affected by such a decision should make it¯by debate and deliberation, research and reasoning, honest engagement with fellow citizens, and then a vote. This is how a democratic polity that respects the freedom and equality of all citizens functions.
One might argue, however, that the justices’ ruling is consistent with democratic self-governance, for the anti-discrimination legislation and the state constitution are products of the democratic process: Weren’t the justices only ratifying the inherent logic of the people’s manifest will? But this is mistaken, for the original understanding of the anti-discrimination law was precisely that it did not entail same-sex marriage. The people’s will was that homosexuals should not face discrimination, but that marriage understood as the conjugal union of sexually complementary spouses was not a form of discrimination. In short, the New Jersey court has abolished the people’s understanding of marriage and replaced it with their own. Regardless of your views on the legislative policy of same-sex "marriage," this type of judicial activism and supremacy is unacceptable.
Considering a parallel case might help. Many have concluded that capital punishment is in most cases unnecessary and hence immoral, particularly in the United States. Thus far, those of us who are opposed to capital punishment have failed to persuade our fellow citizens of the soundness of our views. Yet even if the majority of the members on the Supreme Court were to believe that our arguments were right, this wouldn’t allow them to function in their roles as justices to impose it upon the nation, for the decision does not fall to them. The decision falls to the people. Even good ends do not justify judicial usurpation of the people’s self-governance. This leads to the conclusion that those of us opposed to capital punishment simply need to work harder to persuade our fellow citizens and then put the issue to a vote. This is the only way to treat fellow citizens as political equals and to respect their judgments on the issue.
Same-sex "marriage" advocates should likewise proceed by attempting to persuade the majority of their fellow citizens of the soundness of their view. To ignore their fellow citizens’ judgments and exclude them from the deliberative process by seeking the judicial imposition of same-sex "marriage" is a travesty. But the damage extends well beyond principles of democratic rule. For the substantive issue of whether legally to enshrine marriage as the exclusive and permanent union of sexually complementary spouses (what marriage truly is) or as something else (in this case doing away with sexual complementarity) has profound ramifications.
Readers of First Things do not need another detailed presentation of the case for marriage. They know that marriage isn’t the creation of the state or even of "religion" (as construed as a syncretistic sectarian entity). Rather, marriage is a pre-political institution with its own nature and contours; people are free to enter into a marital relationship, but people are not free to redefine and reconfigure marriage (for that is simply impossible). That religions have norms protecting marriage or elevating its status doesn’t undermine but further demonstrates its natural, primary status. The task of the state, then, isn’t to create marriage but to enshrine its nature in law accurately, and to support and promote it in policy. Attempts to redefine the contours of marriage inevitably preclude any principled argument against polygamy, polyamory, and other diverse expressions. If marriage can be between two people of the same sex, why not among three or four people? In fact, a group of prominent scholars have made just these claims, in a document titled " Beyond Gay Marriage ."
But there is a deeper, cultural problem. Marriage exists to bring a man and a woman together as a husband and a wife to become a father and a mother for any children their union may yield. The legal imposition of same-sex "marriage" intentionally deprives children of a mother or a father. It sends a cultural message that mothers and fathers are interchangeable or unnecessary. And just as "no-fault divorce" and widespread premarital and extramarital sex removed the cultural norms and expectations for adult sexual and reproductive lives, so too same-sex "marriage" continues this retreat from the marital ideal. And as the social evidence presented in the Princeton Principles reminded us, this will hurt the nation’s poor and our most vulnerable children first.
Lastly, the creation of a constitutional right to same-sex "marriage" (by whatever name) found in Lewis v. Harris logically provides legal grounds for condemning as hate speech anyone who teaches that marriage is only between a man and a woman. This has serious ramifications for the freedom of speech. But other First Amendment implications¯on the free exercise of religion¯are even more worrisome. Will churches be allowed to preach the truth about marriage? Will religious organizations be forced to forgo their principles and recognize same-sex "marriages," provide benefits to same-sex "spouses," and place children in adoptive same-sex households? Will citizens be forced to violate their consciences by what they consider formal or material cooperation with evil, fostering what they deem to be the inappropriate same-sex relationships of others?
The fact that the New Jersey court would usurp the citizenry’s power by creating same-sex "marriage" should give us all pause. It seems possible and likely that out-of-town same-sex couples will go to New Jersey, get "married," and return to their home state to force the issue of "full faith and credit" and the status of the Defense of Marriage Act (DOMA). We will have to wait and see. But it is evident that a federal marriage amendment is the only way to ensure that our nation will get marriage right. Furthermore, the amendment process will involve all citizens in the deliberative process, fortifying our constitutional order together with authentic marriage, religious freedom, and the well-being of children.