Paul Mulshine, in the Star-Ledger, notes, as we did ourselves, that if you try to find the reference to “equal protection” in the Article 1, Paragraph 1 of the New Jersey State Constitution (mentioned as the basis of its ruling requiring Gay Marriage by the New Jersey Supreme Court), you will seek in vain. And he adds:

You will note that the words “equal protection” do not appear in it. They couldn’t have. That article first appeared in the New Jersey Constitution of 1844. But it wasn’t until 1868 that the concept of equal protection came into being, and that was in the 14th amendment to the U.S. Constitution. The 14th amendment doesn’t apply here, but if it did, the state Supreme Court would almost certainly be re versed in the federal courts. That was the case with the court’s last ruling on the question of gay rights. The U.S. Supreme Court reversed a New Jersey ruling in which our high court ordered the Boy Scouts to accept a gay scoutmaster. That decision was also based on the nonexistent “equal protection” clause in Article 1, Paragraph 1 of the state constitution.

The seven justices of the New Jersey Supreme Court have a habit of putting words into the Constitution — and of taking them out.

If a court made up of liberals was working on the basis of a Constitution whose only text was the Second Amendment’s provision That the Right to Keep and Bear Arms Shall Not Be Infringed, I have no doubt they could find Equal Protection, a Right to Abortion, Gay Marriage, Affirmation Action, Forced Busing to Achieve Racial Integration, and Confiscation of Private Firearms all mandated by the same text.

The first paragraph of the first article of the 1947 Constitution of New Jersey reads:

1. All persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness.

The Supreme Court of the over-developed, mosquito-infested, and chemical-polluted wasteland of New Jersey ruled today that

Denying committed same-sex couples the financial and social benefits and privileges given to their married heterosexual counterparts bears no substantial relationship to a legitimate governmental purpose. The Court holds that under the equal protection guarantee of Article I, Paragraph 1 of the New Jersey Constitution, committed samesex couples must be afforded on equal terms the same rights and benefits enjoyed by opposite-sex couples under the civil marriage statutes. The name to be given to the statutory scheme that provides full rights and benefits to samesex couples, whether marriage or some other term, is a matter left to the democratic process.

Samesex? Interesting neologism.

When exactly did state constitutions start conferring rights on “couples” as opposed to individuals?

Individuals in (godforsaken) New Jersey obviously enjoy currently, each and every one, precisely the same right to matrimonial alliance as anyone else. True, the citizens of the armpit of the universe, like other Americans (residing outside the most lawless and demented communities of fashion) are restricted to marrying (one) only (of) persons of the opposite sex, of mature age, and of appropriate genetic remove, as is traditional. Victims of supposed oppression throughout America are not permitted to marry plurally, to marry inside conventional boundaries of consaguinity, to marry juveniles, nor to marry their labrador retriever Ralph, or the elm tree growing in their front yard.

As far as I can see, the only argument persons on the opposing side can reasonably make would be based upon the “pursuit of happiness” provision. But, if we do not grant polygamists, pedophiles, and other exotic seekers of happiness free pursuit of their objectives, why are we not entitled to deny complete equality with normalcy to one particular variation of perversity?

I feel obliged to note that I am a libertarian. I have always been a keen advocate of the abolition of laws penalizing private voluntary conduct among consenting adults. I have numerous Gay friends, and I do not think that I am overly censorious. I would defend the rights of Gays to do as they please privately to the death.

I think I was a relatively early supporter of civil union legislation, aimed at relieving various practical difficulties attendant upon unconventional domestic arrangements.

Still, even without religion, I do basically agree with the text of the older version of the Anglican Book of Common Prayer, under whose phraseology my wife and I were married, which says:

Dearly beloved, we are gathered together here in the sight of God, and in the face of this congregation, to join together this Man and this Woman in holy Matrimony; which is an honourable estate, instituted of God in the time of man’s innocency, signifying unto us the mystical union that is betwixt Christ and his Church; which holy estate Christ adorned and beautified with his presence, and first miracle that he wrought, in Cana of Galilee; and is commended of Saint Paul to be honourable among all men: and therefore is not by any to be enterprised, nor taken in hand, unadvisedly, lightly, or wantonly, to satisfy men’s carnal lusts and appetites, like brute beasts that have no understanding; but reverently, discreetly, advisedly, soberly, and in the fear of God; duly considering the causes for which Matrimony was ordained.

Ann Althouse this morning, quotes a colleague asking rhetorically (and disingenously): What is the rational basis for banning same-sex marriage?

It’s perfectly possible to propose a rational debate on this kind of question, but when one finds that the debate’s proposer has already engineered the grammar of the proposition around so as to make the ordinary status quo appear in the guise of some intended innovation and aggression against the rights of others, it is apparent that there is a certain effort underway to fix the outcome of the debate before it has begun. “How dare some people suddenly compel the legislature and the courts to ban Gay Marriage!”

Of course, we all know that the precise opposite is the case.

Marriage is a human institution existing immemorially, even from times preceding the organization of the state itself, long prior to the creation of individual American states or the United States. The state never created marriage, but merely recognizes marriage as an estate, i.e., as a recognizable status conferring a number of customary privileges and immunities.

That marriage consists of the union of one man and one woman has been its definition for at least the entirety of the Christian era, some two thousand years. The innovation consists of the revolutionary demand that the definition of this most fundamental of human institutions must be modified to confer equality of status on homosexual relations in accordance with the wishes of a contemporary minority.

The increased popularity of monogamous homosexual relationships over the two decades following the arrival of the AIDS epidemic seems to many of us a positive development, but it is far from clear that the fashion would survive the removal of the health threat. Is two decades of anything a sufficient basis to modify the most fundamental institution of human society?

Liberalism has triumphed in the jurisprudential debate about the law’s treatment of homosexuality since the time of the Wolfenden Report. The consensus of opinion these days holds that Mill was correct. Absent some demonstrable harm to others from private action, the state has no right to interfere with the private conduct of consenting adults. Homosexuals have a right to do as they like in private, and the rest of us are obliged to respect that right. We owe them our tolerance.

We do not, however, owe homosexuals our applause and approval.

Just as it is possible to be a law-abiding and unoffending member of the community, and indulge in homosexual acts with another consenting adult in private, it is also perfectly possible to subscribe to religious or other opinions which take a negative view of homosexuality.

Alteration of the definition of marriage to include homosexual liaisons would, in fact, confer both public recognition and approval upon those liaisons in a form which the majority of American are not voluntarily willing to concede.

There is nothing coercive in declining to consent to the adoption of a new and revolutionary definition of marriage. But the forced participation of an unwilling national majority in the public recognition and celebration of unconventional liaisons would be indubitably coercive.

No one is “banning Gay Marriage” by prohibiting homosexuials from conducting whatever private ceremonies or taking whatever personal and private view of their own relationships they like. It is simply the case that a majority of Americans are declining to share those particular views or to recognize those particular ceremonies as meaningful to themselves in the same way.

I obviously disagree with the proposed “state interest” approach to analysis. But if I were compelled to argue in that form, I would observe that a state constitutional amendment defining marriage as it is traditionally understood, as the union of a man and a woman, should be perfectly constitutional. States obviously have a right to define legal concepts and institutions. They have a particularly good right to do so, when they are making no change whatsoever, but merely identifying what has always been understood to be the case.

The obvious line of attack for the left will be via the Equal Protection Clause. But there is no inequality to it. Everyone has just as much right to marry anybody else as he ever did. Arguing that you want to do something different and call it marriage, and you want everyone else to call it marriage, too, and they won’t, and you don’t like it, does not mean you have been treated unequally.

Legalization of polygamy following legalization of gay marriage already happend in the Netherlands. It could happen here. Stanley Kurtz, in a must read article, identifies the fundamental connections between monogamy and democracy.

Alexis de Tocqueville, that great nineteenth-century student of America, pointed to the abolition of primogeniture (exclusive property inheritance by first-born sons) as the social key to American democracy. Once American children inherited equally, said Tocqueville, landed estates were dispersed, and the ethos of kin unity and hierarchy was replaced by a spirit of democratic equality. Yet America’s abolition of primogeniture was only the culmination of a process begun centuries earlier by the Christian Church. Muslim families arrange marriages to cousins and other kin, thereby reinforcing couples’ identification with family and tribe. But from the fourth century through the Middle Ages, the Church fought to protect individual choice in marriage, while prohibiting marriage between cousins and other relatives. That undercut social forms based on kinship and collective identity, ultimately leading to the triumph of democratic individualism in the West.

Yet the weakening or even disappearance of extended kinship groups from family life in the West poses a problem. If families aren’t going to be held together by collective honor, mutual obligation, and shared economic interest, how will they cohere? The answer is love. Exclusive affection for a unique individual is the structural foundation on which Western families are built. In polygamous societies, where marriages are arranged and wives and children live collectively, too much individualized love (for spouses or children) endangers group solidarity. Yet in a democratic society, individualized love is praised and cultivated as the foundation of family stability. So take your pick. You can have a love-based democratic culture of monogamy, or an authority-based hierarchical culture of polygamy. But–as the Reynolds Court knew–you can’t have both.