Gay Marriage Timing in New Jersey

Suppose that a multimember court has decided (a) that a state must allow same-sex marriage, (b) that a state may not continue affirmative action programs, or (c) that a popular environmental statute is unconstitutional. Suppose too that the opinion is written -- and that a national election will be held in two weeks. Suppose finally that the court is aware that the ruling will have at least some degree of relevance to voters. Should the court refuse to issue the opinion until after the election?

It is worth raising this conclusion because the New Jersey ruling (not requiring the state to allow same-sex "marriage," but requiring same-sex couples to be provided with the material equivalents of marriage) was issued within two weeks of the national election, and some people believe that it will have electoral salience. As far as I am aware, there is no serious scholarship on the question whether and when it is appropriate to wait to issue a controversial ruling until after an election.

Consider two possible positions:

1. The court should issue an opinion whenever it is ready to do so. It does not matter whether an election is imminent. It is no more neutral to hold the opinion than to issue it immediately. If the court's decision is controversial, the voters deserve to know about it before they vote, not after.  "Holding" an opinion is too strategic; it smacks of opportunistic behavior on the court's part, an effort to avoid electoral reprisal.

2. It is appropriate and possibly the better practice for the court not to issue a controversial opinion in the period immediately preceding an election, simply because of the risk that the timing will give the opinion undue salience, in a way that will distort the process. Of course any particular event might have such a distorting effect, if it occurs immediately before an election. But if judges can control the timing of their intervention to avoid the risk of that distorting effect, they should do so.

I tend to think that under certain circumstances, (2) is correct; but it is a reasonable objection that voters deserve to hear about the ruling when they are deciding how to vote. Whether the objection is reasonable, as opposed to right, may depend on whether the timing will improve voters' information, or instead distort the whole process by making one development especially salient.

Comments

[LAK]

"simply because of the risk that the timing will give the opinion undue salience, in a way that will distort the process."

Uh, you're going to have to explain this a little better. If the timing is natural, that is, if the decision is not being published when it is for the purpose of influencing an election one way or another I don't understand what would be "undue" about any extra salience the opinion might have.

And after you explain what would be "undue" about such added salience (as if the all of the law, including case law, might not be appropriate to consider onelection day), you then need to explain why even undue salience would "distort the process." I'm not even sure what you mean by that phrase. Which process? The election process? What would be distortive about the "undue salience" of recently published opinions in an election, especially compared to any number of other potentially "distortive" factors, like congressional page sex scandels?

Insofar as Art. III exists and makes the courts separate from Congress and its nasty politics, then wouldn't #1 make more sense? The stink of the political branches down in the valley shouldn't even reach the noses of our judges atop their mountain.

[Geoffrey R. Stone]

I agree with LAK. A court should issue its opinion when it is ready. It should not manipulate the timing of the release for what are essentially political reasons. If courts followed approach #2, they would be tempted to act on the basis of partisan considerations. That, in my view, would be the worst of all possible outcomes. When I was a law clerk to Justice Brennan, a somewhat analogous situation arose. Roe v. Wade was scheduled to be handed down the Monday before Richard Nixon's inauguaration in 1972. Chief Justice Burger manipulated the timing to postpone release of the decision for a week, so as not to embarrass Nixon. The other justices were furious. (I'm not revealing any secrets here, by the way, because this story is well known.) That was a different situation, but the lesson was made clear to me then.

Geoffrey R. Stone

[Erasmussimo]

A fascinating problem, this one!

I could support a "blackout period" prior to an election if it were codified and universal. Congress could pass a law requiring all appellate courts to refrain from issuing decisions in the four weeks prior to the election. If it were regarded as a "Caesar's wife" matter, then it would make some sense. But I would oppose any informal restrictions, or anything not applied to all such courts. This still raises the problem of state courts, which cannot be regulated by Congress. Thus, such an arrangement would not have had any effect on the instance at hand.

At the same time, I find much merit in the argument that the courts should be blind to the electoral process. Justice is well depicted with a blindfold, and it seems to me that taking elections into account is peeking out from the blindfold.

Given the impossibility of actually establishing a universal blackout period, I lean towards the second argument. Keep the courts as far away from politics as possible.

[Richard Fields]

It seems like Professor Stone and LAK are right insofar as such a delay would be inappropriate political behavior. But I have to imagine this sort of thing happens all the time (in fact, the NJ opinion may have been rushed to be released so that the now manditorily-retired Chief Judge of the NJ Supreme Court could have a crowning opinion). Is anyone aware of research of release of "politically charged" opinions around elections?

[Professor Sunstein Should Read His Own Books]

It is generally good when an informed citizenry communicates with its legislators over the course of their terms and gives feedback through the form of referenda, ballot initiatives, letters, protests, hearings, and midterm elections.

It is generally good if legislatures and courts enter into dialogue over political issues through adjudication and legislative amending or proposing of constitutional amendments.

It is generally good if legislatures and executives dialogue through the process of legislation and veto, allocation and impounding of funds.

So I wonder if we are not overlooking a third option, which is that to the extent reasonably possible, in the interest of democracy, courts ensure that the most politically relevant opinions on its docket are produced as soon as possible prior to an upcoming election, so that voters may register their approval or disapproval.

The effects that Professor Sunstein refers to as "distorting" could also be described as "deliberative democracy".

It seems Professor Sunstein is on the one hand arguing in favor of aristocratic partisan tinkering and on the other arguing in favor of depriving the citizenry of informational material to deliberative democracy.

Either Professor Sunstein has lost his mind or he's playing Devil's Advocate.

[Josh]

It seems to me that holding release has the exact same political effect as issuing it before an election. The only difference is which side it helps/hinders.

[curtisstrong]

Interesting.

Looking at Eras´ suggestion of a blackout period is fairly advantageous, given that no judicial opinion would be given within a month of a major election. This would allow the electorate to focus on what it should be focusing on, that is, the legislature.

However, I see a couple of problems. First, postponing handing down decisions for a month is going to deprive parties (lest we forget, actual people are anxiously awaiting the judgement), of their relief for more than a month. Given that judicial relief is now a long, grueling, drawn-out process, it seems counter-intuitive to tell the parties that their decision is ready, but that they have to wait yet another month to receive it, simply because there is an election coming up. This may, in a few sparse cases, give the judges an undesirable incentive to rush through a decision to get it done and out before the blackout period.

The second problem that I see is that, as LAK states, the judiciary is seperate from the legislature, and really shouldn´t care what´s going on there, apart from what they need to know in order to interpret the law. The idea that the judges need to worry about an upcoming election puts them in a position that their behavior is effected (if ever so slightly) by the political atmosphere in the country. That´s not really what we envision the judiciary to be, and any attempts to push it closer to a political body should be avoided.

Third and finally, if the people are not satisfied with the ruling, they should have all the information necessary BEFORE an election, and not after. This way, they can elect representatives that could amend the law in accordance with what the people want. That´s what the political process should do. If people don´t like a certain law (and its corresponding interpretation), then they should be able to change it.

All in all, it seems that the judiciary should hand down the opinions it has, as soon as they´re finished. This way the judiciary doesn´t have to worry about political crap. Let the panhandler legislatures sort all of that out.

[BobRasmussen]

It seems to me that this discussion starts in the middle. It treats the opinion being ready as an exogenous event. Yet it strikes that, at least on some courts, individual members have the ability to control when a decision is in fact ready to be issued. It is one thing to say that, once all the opinions are finished they should be handed down. But are there any obligations on the judges to work hard to finish opinions in time for elections? Conversely, along the lines that Cass originally stated, should a judge be able to tarry a bit with her opinion so that the case is not ready to be released until after the election. This strikes me as a more plausible (and at perhaps palatable) way for judges to take account of the interaction between the cases that they are deciding and upcoming elections.

[Frederick Hamilton]

The moment courts start to issue opinions with timing based on political or electoral considerations then the courts should allow the legislators and people more leeway on them. i.e. term limits, easier rules for removing them from the bench (popular voting, et al). Should justices want to invade the space of politics or electoral timing, then they should also be made much more subject to political or electoral decision making themselves. If they tread there, they do so at there own peril.

[Joan A. Conway]

I prefer option 1, because I can draw an argument similar to the staging of campaign contribution(s) made immediately before and accountable 6 months after the election.

Hedging the outcome of an election is now in the favor of the Bush administration's dismissal of the American Bar Association's selection of federal judges for a judiciary with conservative credentials, like abortion. Any damaging opinions to the civil liberties of suspected groups is also now automatically political, because of the court's inherent bias. A 4 to 3 ruling is usually considered a political decision, where ex post facto laws have changed the outcome for full enfranchisement.

If the state's unreasonable action is supported by its equal protection laws in its bill of rights, the challenger would need to prove executive tyranny and the right to be left alone under the Fifth Amendment, U. S. Constitution in a federal jurdisdiction, 28 U.S.C. Section(s) 1331 and 1332, and perhaps "honest services."

This is perhaps a seizure of property that belongs to heterosexuals and not homosexuals, that the Fourteenth Amendment's
Equal Protection Clause cannot shield from the First Amendment "right of association" and the Interstate Commerce Clause and the Full Faith and Credit of the United States Clause, and Article 6 "Supremacy Clause."

Only the Supreme Court can make the issue clear according to how the argument is pleaded at any given time. Time of course increases or decreases any understanding on the United States Constitution. The Constitution is what the justices say it is! It can always be challenged under a new light or a false light if politics plays an important part of their decisions.

[John Atkins]

Whether tragic events touch your family personally or are brought into your home via newspapers and television, you can help children cope with the anxiety that violence, death, and disasters can cause.

Listening and talking to children about their concerns can reassure them that they will be safe. Start by encouraging them to discuss how they have been affected by what is happening around them. Even young children may have specific questions about tragedies. Children react to stress at their own developmental level.

The Caring for Every Child's Mental Health Campaign offers these pointers for parents and other caregivers:

* Encourage children to ask questions. Listen to what they say. Provide comfort and assurance that address their specific fears. It's okay to admit you can't answer all of their questions.
* Talk on their level. Communicate with your children in a way they can understand. Don't get too technical or complicated.
* Find out what frightens them. Encourage your children to talk about fears they may have. They may worry that someone will harm them at school or that someone will try to hurt you.
* Focus on the positive. Reinforce the fact that most people are kind and caring. Remind your child of the heroic actions taken by ordinary people to help victims of tragedy.
* Pay attention. Your children's play and drawings may give you a glimpse into their questions or concerns. Ask them to tell you what is going on in the game or the picture. It's an opportunity to clarify any misconceptions, answer questions, and give reassurance.
* Develop a plan. Establish a family emergency plan for the future, such as a meeting place where everyone should gather if something unexpected happens in your family or neighborhood. It can help you and your children feel safer.

If you are concerned about your child's reaction to stress or trauma, call your physician or a community mental health center.

[Roach]

Too bad the democrats can't find some way to prevent their politicians from accidentally expressing how patronizing their feelings are about the military.

What would the Kerry military's recruiting slogan be: sign up and fight for America, if you're dumb enough.

Kerry may have seen combat, but he walked away from the Navy embittered, alienated, and anti-American. Sadly, most of the liberal wing of the Baby Boomer generation shares his anti-social and immature views about patriotism, military service, and the like.

[Erasmussimo]

Mr. Roach, your comment is every bit as appropriate as Mr. Atkin's.

[LAK]

And you Roach?

many a hand has scaled the grand old face of the plateau
some belong to strangers, some to folks you know
holy ghosts and talk show hosts are planted in the sand
beautify the foothills, shake the many hands
there's nothing on the top but a bucket and a mop
and an illustrated book about birds
seen a lot out there but don't be scared
who needs actions when you've got words?

[Roach]

My point on Kerry was clearly saracastic, a bit of levity for you solemn and reverant liberals.

But it does stand for a serious point: liberals being elected mean liberal judges who will occasionally issue subversive and revolutionary rulings that aim to move along the opinions of the general public about some contentious social issue or, worse, take the laws regarding such issues out of their hands altogether.

This is not a Republican/Democrat issue, as some of the more banal commenters have suggested by adding up the percentage of Republican judges. (After all, what percentage of these wack-job rulings come from Democrats, which is the real question.) And a significant percentage of judges, Republican and Democrat, are legal realists with liberal social views that they feel morally empowered to advance on account of the intersection of legal realism, the lack of public understanding of judicial processes, the residual respect retained by the judiciary from the pre-ralist era, and their own sense of moral rectitude and superiority. Incidentally, it is the liberal quarters of this country, which have even more liberal judges than their populations--Massachusetts, New Jersey--from which these odious rulings on gay marriage have issued.

A leopard can't conceal its spots forever. The issuance of rulings like this should not be delayed because voters should know and be reminded what liberals being elected means: an ever-moving goal post until all of our moral and social commitments and laws are eviscerated in the name of rationalism, consistency, equal protection, etc. etc. The only possible reason Sunstein or anyone else could defend delaying a controversial ruling like this is in the vain hope that the public will be too forgetful come the next election to rememeber what damage and what insults came from the liberal activist judiciary. Their sense of expectdation will change; they will have become used to the new order, even though they opposed it initially and never would have voted to change it. So we sit in a kettle, with the water gradually boiling, our opinions, our habits, and our laws engineered by the wise black-robed rulers, who are even wise enough to conceal their actions underneath a heap of legalese and clever timing.

This Enron strategy won't fly. It will lead, I fear, to a thorough-going discrediting of the judiciary in time when people realize: hey, we've got all these crazy laws, none of us asked for or voted for them, and now our country is unrecognizable.

So years ago it was contraception. Then abortion. Then sodomy laws. Then the rights of parents to decide upon their children's education. Then these judges mandated gay marraige. Soon they will destroy barriers to polygamy. Rights of landlords not to have Muslims, homosexuals, pagans, polygamous Manson cults, pot-heads, unmarried couples, and any other group of people to whom they object living in their guest-houses or working in their stores will be eliminated. And who knows what other innovations and perversions will be imposed that I've not even considered.

[LAK]

Jesus do you need to get laid.

[Erasmussimo]

Mr. Roach, you eschew serious engagement of the issues being discussed here and offer instead a scattershot collection of wild and unsubstantiated accusations. I'll be happy to discuss issues with you, but in this comment you offer nothing to discuss.

[Roach]

"I strongly disagree with Erasmussimo" equals "I am not offering a serious argument."

What's not serious in what I wrote, oh, Keeper of the Tablets.

[A_____---ric]

LAK, there you go again. [Sighs.]

[LAK]

are you telling me that someone who bemoans:

"So years ago it was contraception. Then abortion. Then sodomy laws. Then the rights of parents to decide upon their children's education. Then these judges mandated gay marraige. Soon they will destroy barriers to polygamy. Rights of landlords not to have Muslims, homosexuals, pagans, polygamous Manson cults, pot-heads, unmarried couples, and any other group of people to whom they object living in their guest-houses or working in their stores will be eliminated. And who knows what other innovations and perversions will be imposed"

Isn't in obvious need of some nookie? The repression and alienation is palpable.

[Anon]

LAK, now that I have taken the time to read more of this blog (to which I am now addicted), including older posts, I have found at least 3 instances in which you resorted to telling someone with whom you disagreed--who, in each case, had posted a well-written, non-attack-based comment--that they "obviously need to get laid." See, e.g., the post about China killing 50,000 dogs and your debate with someone about scientism.

That is weak and beyond childish. Then you respond to folks like Roach with comments accusing *them* of resorting to non-arguments.

Hmmm.

[LAK]

Who the cap fit, let them wear it.

I am a child! I'll last a while. You can't conceive of the pleasure in my smile!

Shall we make it 4? Clearly anon, you need to get jiggy with it soas you don't get all bottled up again and start researching my awful childish posts more!

Things that make you go Hmmm.

[Cynic]

"So years ago it was contraception."

Wait... you mean legal contraception is a bad thing? Do you truly and seriously think condoms and birth control pills should be outlawed?

"Then these judges mandated gay marraige."

"Mandated", hmm? And when are you and your new male partner having your legally-mandated wedding ceremony? I do hope I'm invited!

[Roach]

The cases I had in mind were:

Griswold--finding a right to privacy in the 14th Amendment made a Connecticut law outlawing contraception unconstitutional to the extent it affected married persons. This is the root of the "penumbras and emanations" view of the 14th Amendment, i.e., these rights have hidden in them, until revealed by judges, certain implied rights that led judges decide what state laws should be.

Roe--Same principle applied to an unmarried women's right to have an abortion.

Lawrence--this same principle applied to find a constitutional right to commit sodomy.

Goodridge and Lewis v. Harris--Mass and NJ decisions finding a right under respective state constitutions and equal protection principles that gays have right to civil unions

I had some other decisions in mind with the other references--application of Title VII to small mom and pop businesses and religious employers for example.

Here's a conundrum, why shouldn't an anti-discrimination law that protects gays not be applied against the Catholic Church that will never marry gays? Why should its religious status allow it to flout the law? Why should it be allowed to do something generally prohibited because of its supposed religious scruples; isn't this was Oregon v. Smith resolved? Why should the state recognize as a legal civil marriage a "marriage" that does not include the right of gays to access it? Why should we not require everyone to be civilly married in the eyes of the law and just treat religious marriages as silly ceremonies, if not outright insults to the uniform marriage principled based along the cold, rational lines outlined above?

I don't bring up Griswold because I think a law against contraception is particularly wise, but to show that this open-ended reading of equal protection and privacy puts judges in the driver's seat, constantly second-guessing elected legislatures and their duly ratified laws in the name of principles that are impossible to apply consistently and predictably and, most important, in a way that is respectful of the republican form of our government. The point of jurisprudence is not to have judges always rule in ways that accord with our prejudices, but to do so in a way that serves the specific and limited purposes for which courts are established.

[LAK]

"in the name of principles that are impossible to apply consistently and predictably and, most important, in a way that is respectful of the republican form of our government"

Roach, meet the constitution. Constitution, Roach. Nobody said constitutional interpretation was going to be easy. There is a reason it was written with broad language. Because all law, not just Con. is impossible to apply consistently and predictably in the absolute sense you so desire. Welcome to the inevitabilty of change. Welcome to realism. Welcome to Marbury country.

There's a reason we have a constitution. So people like you can't get the mob together to tell a woman she can't use birth control, and so you can't tell another person what he can and can't do with his own penis.

PROGRESS! HIP HIP HOOORAY!