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Thursday, October 26, 2006

Separation of Powers? Not in New Jersey

"Three separate and coequal branches." Even if you slept through most of your high school civics classes, your subconscious probably remembers that phrase. It captures one of the defining characteristics of America's experiment in self-government, where three distinct branches of government — executive, legislative, judicial — check and balance each other. Works in theory, but not always in practice. Witness yesterday's peremptory ruling that New Jersey's highest court issued to the state's legislature, in effect: "We have decided homosexual partnerships deserve the same substantive rights as heterosexual partnerships. We command the New Jersey legislature to implement our ruling." This is frightening stuff. And I'm not even referring to the content of the court's ruling. It's the process that bothers me. By what authority does an independent judiciary tell an independent legislature how to conduct its business? I would think that even the most fervent supporter of same-sex marriage would find the court's overbearing manner disturbing, because there is no reason to suppose the court will not try to tell the legislature how to resolve other legislative matters in the future. Here's the irony. Remember when the United States Congress passed a bill that merely urged the federal courts to take a second look at the Terri Schiavo case? The courts declined to do so, which was their prerogative. But the outcry from editorial writers and liberal activists was deafening: How dare Congress presume to give operating instructions to an independent judiciary! Let's note the key difference. The legislation signed by President Bush in the Schiavo case simply asked the federal courts to review the actions of the lower courts. By contrast, New Jersey's court of last resort has taken a very different tack: "You will do what we tell you to do, and you've got six months to act." Regardless of their feelings about same-sex marriage, I'd love to see the legislators of Tony Soprano's state legislature respond: "You want to try to make us act? You and who else?"