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Judicial Mandate

Dan Blatt ’85 has mixed thoughts on New Jersey Marriage decision.

As most of you by now know, the Garden State’s Supreme Court has given state lawmakers “180 days to rewrite” state laws to give gay people “marriage or something like it, such as civil unions.”

I am delighted that the New Jersey legislature will be addressing state recognition of same-sex unions. I would rather that this had come about as it had in Connecticut rather than by judicial mandate.

On the one hand, I’m pleased that the legislature will be dealing with the issue. On the other hand, I don’t think courts should mandate which issues state legislatures put on their calendars. It seems a clear violation of the separation of powers.

Finally, because a court has mandated this, it strengthens the hand of those supporting state referenda defining marriage as the union of one man and one woman. Whenever one state court mandates gay marriage, it leads to a backlash against gay marriage in other states. While this ruling may be good for same-sex couples in the Garden State, I fear this may hurt same-sex couples in other states.

This analysis seems about right to me. The more active judges are in this dispute, the more likely voters are to fight back via referendum. This will be a big issue, I think, in 2008 in Massachusetts. I predict that every single Williams professor who takes a public position on this debate will be on one side. Anyone care to bet against me?

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#1 Comment By Jeff Z. On October 28, 2006 @ 8:31 am

Nope, and I’m glad for it. Basically, the more people are actually exposed to gay friends and colleagues (as any northeastern college professor has been) the less likely they are to object to gay rights initiatives. I bet 30 years ago every Williams professor would be against laws prohibiting interracial marriage too. But lots of folks defended those laws in the exact same way — as protecting traditional marriage, etc. But George Bush and friends have a pretty good point … as someone who recently lived in Massachusetts, I can sadly comment that the entire fabric of society as we know it fell apart after gay marriage became legal. Suddenly, formerly straight guys were listening to house music, shopping at Barney’s, and soon enough, leaving their wives and kids after realizing they had, all along, actually been gay. Thank god we have the GOP (and many cowardly democrats) to mandate who we can form a committed partnership with and monitor (from 1000 miles away) when our relatives are, in fact, brain dead … so much for the party of limited government.

But I gotta say, New Jersey really screwed up. I swear Karl Rove has a plant at the NJ Supreme Court responsible for the timing of this opinion. I just hope folks in middle america care more about their kids dying in Iraq than gay couples choosing to marry in New Jersey … alas, I’m skeptical. I guess we’ll find out soon enough.

#2 Comment By Jeff Z. On October 28, 2006 @ 8:58 am

Speaking of Republican dirty tricks, here is another Eph candidate who has been a victim of them:


#3 Comment By frank uible On October 28, 2006 @ 10:20 pm

Yeh, all them yahoos in middle America are too stupid and corrupt to believe in the right things. They ought to take their intellectual and ethical leads from Massachusetts and New Jersey.

#4 Comment By hwc On October 28, 2006 @ 10:45 pm

Speaking of blogging and diversity and professors and Williams, this one should should be right up David K’s alley: a professor blogging against Williams’ recently approved curriculum “Diversity Requirement”.

In this interesting read, Professor Burke argues not only against diversity requirements, but against curriculum requirements in general.

One of his objections is that curricular requirements may serve simply as a way for the faculty to pat themselves on the back for implementing a desireable institutional objective. He proposes more direct ways of giving this positive reinforcement:

These kinds of rationales are also a problem because increasingly they lead to requirements as a kind of prestige object, very distant from achieving particular or focused learning objectives. Having a requirement in this case becomes a symbolic and gestural communication of the seriousness with which an institution regards an idea, concept or discipline. There are cheaper ways to do that: give people little gold stars or medals or hearty handshakes from the president, if that kind of symbolic affirmation is what they’re seeking.

More to the point, Burke argues that, at a college like Williams with students like Williams students, there is no need for a “diversity requirement” because the students would be naturally interested in learning about different cultures and the curriculum would provide ample, and attractive, opportunity. In short, the students would “buy” without being forced to because the product is something they want anyway.

If a student can get through Williams without taking a course that could plausibly get an “asterix” for meeting one of those criteria, then that student is working very hard to avoid those courses. It might have been fair to think that in the early 1960s, your average white male student at Williams (or Swarthmore or Amherst or Princeton or Duke, etcetera) would have been largely disinterested in any or all of the possible meanings of diversity that Williams has designated as learning objectives. Today, I really think that a student with active antipathy towards those objectives would be unusual. In this case, the marketplace of courses at your average liberal arts college is more than adequate to ensure that most students will encounter questions of diversity in some fashion.

As usual, Burke’s blog is an interesting read.

#5 Comment By rory On October 29, 2006 @ 1:59 am

interestingly, kane has seen the article that burke links to (he makes a comment on the page) but does not put it on ephblog.

changing the people’s and culture requirement isn’t a worthy topic for ephblog?

#6 Comment By David On October 29, 2006 @ 7:36 am

1) Strange but true, but I do have a life outside of EphBlog.

2) Join us as an author, Rory! Than you can decide what is and is not a “worthy topic for EphBlog.”

3) I e-mailed one of the quoted professors with a question. The professor hasn’t written back. Do you think the professor will write back? Do you think that the professor should, even if just to say something like time constraints don’t allow for a full reply?

4) Full Disclosure: I actually worked with Ed Burger on this topic.

#7 Comment By Loweeel On October 29, 2006 @ 4:17 pm

I agree 100% with the MERITS of the result reached by the 7 Mental Dwarfs on the NJSC; had the legislature implemented on its own the exact same procedure that the majority mandated, I would have no problem with it. However, there are many, many problems with the NJSC decision, not the least of which being that the court is not just taking a highly contentious political issue out of the hands of the legislature by ruling on Constitutional grounds, but actively ordering around the legislature and specifically directing legislation.

Just a few include:
– The court ordering the legislature to implement legislation, as opposed to merely striking down bad legislation
– The fact that, unlike NY and WA, which did not apply strict scrutiny to their clear textual equal protection clauses, the NJSC somehow managed to apply strict scrutiny to a right that does not exist in the NJ Constitution.
– The court relied on incremental steps towards full parity for gays in reaching its result, citing NJ’s 2004 civil unions law, hate crime laws, and anti-discrimination law that protected gays, despite contemporaneous claims that such protections were not full equal treatment nor intended to be the same as marriage. Thus, the NJSC sharply increased the cost of similar incremental legislation in other places. The naysayers were, in fact correct — these did turn out to be part of the slippery slope to gay marriage in fact, whether or not in name.

#8 Comment By Jeff Z. On November 3, 2006 @ 3:25 pm

By the way, at least one Amherst professor takes the con side in this debate … and in a big way. Apparently, Hadley Arkes was the brainchild behind Rick “only two weeks until his affair with a gay drug-addicted dog is uncovered” Santorum’s insightful gay relationships = beastiality analogy. I’m sure the rest of the Amherst faculty is very proud:


Man, Arkes must have been pretty steamed when Amherst students protested about Scalia’s presence on campus a few years back because of his views on gay issues. I wonder if Arkes also supplied Santorum with his brilliant war in Iraq = Lord of the Rings analogy (and funny that the “liberal” media spends five days discussing Kerry’s flub but no time at all on the usual nutso comments made by Santorum, a Senator who is actually running for office this election cycle).

Meanwhile, the search continues for the first “family values” republican / evangelist who has not (a) choked his mistress, (b) beat his wife, (c) had multiple divorces, (d) had a gay meth-fueled affair, (e) enabled a child molester, (f) left his cancer-ridden wife for another woman while she was in the hospital, (g) sexually harassed an underling via bizarre phone messages, or (g) all of the above …

OK, I’m sorry for yet another off-topic rant (it’s just so easy this year), Tuesday needs to come and go, and quickly … I’ll just have to wait and see if Gandalf (Obama) can lead the Hobbits to victory.