N.J. Supreme Court's refusal to hear gay marriage case raises question of Christie's influence | NJ.com

http://www.queerty.com/did-some-of-new-jerseys-supreme-court-justices-refuse-gay...

The New Jersey Supreme Court doesn't give interviews, so no one can ask whether the tribunal balked on the gay marriage issue because it was afraid of the reaction of Gov. Chris Christie.

"There won't be any comment," says Winnie Comfort, a spokeswoman for the court. "Of course, people are free to speculate. There is nothing we can do about that."

Comfort made the comments in response to remarks by legislators who raised the issue of whether the court — or, at least, three members — might have been afraid to touch the gay marriage case because Christie can remove them by appointing other justices. The way he did to Justice John Wallace, the court's only African-American.

Both state Sen. Raymond Lesniak (D-Union) and Assemblyman John D. McKeon (D-Essex) told The Star-Ledger's Matt Friedman the decision raised the question of whether Wallace's ouster led three non-permanent court members to duck the issue.

Those members — Chief Justice Stuart Rabner and Justices Roberto Rivera-Soto and Helen Hoens — voted against a motion to have the court immediately revisit its earlier decision in the Lewis vs. Harris case that, in 2006 ruled the Legislature must provide marriage-like rights to same-sex couples. The court then left the details up to lawmakers and they decided to create "civil unions" rather than extend marriages to gays and lesbians.

The three judges who don't have to worry about reappointment — Justices Virginia Long, Jaynee LaVecchia, and Barry Albin dissented from the order. They wanted arguments on the motion to go forward. Coincidence?

"I think the three justices who voted against the motion looked over their shoulders and saw Chris Christie," says Frank Askin, a Rutgers Law School professor and constitutional scholar in Newark. "There is no question in my mind that fear of what the Governor would do played a part in that decision."

Michael Drewniak, Christie's spokesman, declined to answer questions about the decision.

The state court action contrasts with the robust ruling handed down by federal Judge Vaughn Walker who overturned a California plebiscite — Proposition 8 — banning gay marriages. Forget worrying about a governor, Walker rejected the will of the state's voters because, he ruled, Proposition 8 "violates the due process and equal protection rights" of gays seeking to marry.

Walker's decision chews through the arguments of opponents of gay marriage, refuting contentions gay marriages are unstable and that children raised by gay parents do less well than kids from heterosexual households. He also makes it obvious supporters of Proposition 8 were trying to inject their religious views into law.

"The evidence presented at trial," Walker wrote, "fatally undermines the premises underlying proponents' proffered rationales for Proposition 8."

New Jersey once had a supreme court willing to render significant decisions. Under chiefs like Joseph Weintraub, Richard Hughes, Robert Wilentz, James Zazzali and Deborah Poritz, the state's highest court was a national leader in individual rights.

It is often in state courts that individual rights are most effectively protected. New Jersey's decisions on school funding and fair housing — also now endangered — went far beyond what the federal courts would do.

Even Walker's decision, for all the hype it has generated, could set back the cause. Rutgers Law Professor Carlos Bell, an expert on gay marriage, explains it could lead to an adverse decision by a conservative U.S. Supreme Court:

"That is why most of the other same-sex marriage lawsuits (including New Jersey's Lewis v. Harris) have been brought in state courts alleging violations of state constitutions. When a case is decided on state constitutional grounds, it cannot be appealed to the U.S. Supreme Court.

"It is likely the court will hear the Proposition 8 case. The upside for gay people of a favorable decision is tremendous: It would mean same-sex couples all over the country would have to be afforded the opportunity to marry. But the downside is also great: It would mean a Supreme Court decision, which would likely stay on the books for a long time, holding gay people are not entitled to marry under the federal constitution."

Maybe too much has been read into the state court action. Even Steve Goldstein, the chairman of Garden State Equality, the state's leading proponent of gay rights, says "it's not a dooms-day scenario — we'll get our day in court."

Perhaps. But a lot is at stake, and one has to wonder — do the three judges up for reappointment really think Christie will keep them no matter what they do?

This looks more like an opportunity to make history rather than curry favor.