President, some Republican candidates resume use of “‘activist judges’ in campaign rhetoric
The New Jersey Supreme Court’s Oct. 25 marriage ruling appeared to follow a cautious route, ducking the core question of whether or not to authorize same-sex marriage and sending that matter to the state legislature. While all seven justices agreed that gay men and women must receive the same rights and benefits available to married heterosexuals, four members of the court withheld the keys to wedlock, writing that the future of the institution was a decision for the democratically elected representatives.
At first glance, it appeared that the justices had found a politically popular middle ground. By passing the ball to the lawmakers, they could hardly be accused of judicial activism. The determination that same-sex couples deserved equal rights, in turn, was right in line with state anti-discrimination policies and popular sentiment.
Polls indicate that New Jersey residents are slightly in favor of same-sex marriage, and even more supportive of civil unions.
But the careful balance made no difference to the White House spin machine, which wasted no time in incorporating the decision into the campaign message almost as if the Garden State justices had ordered immediate licenses for gay men and lesbians.
By the following day, President George W. Bush had added a marriage component to his standard stump speech, in what the Associated Press reported was the first major addition to the president’s routine in the run up to the election.
“For decades, activist judges have tried to redefine America by court order,” Bush told a crowd in Georgia on Monday. “Just this last week in New Jersey, another activist court issued a ruling that raises doubt about the institution of marriage. We believe marriage is between a man and a woman and should be defended.”
The passage reportedly earned the president a standing ovation of nearly 30 seconds.
Two years ago, Bush said he would not be opposed to civil unions, as long as the definition of marriage was reserved for heterosexuals.
And the New Jersey majority themselves expressed a degree of respect for the institution that would probably have earned them a cheer or two in Georgia as well:
“We cannot escape the reality that the shared societal meaning of marriage passed down through the common law into our statutory law has always been the union of a man and a woman,” wrote the majority. “To alter that meaning would render a profound change in the public consciousness of a social institution of ancient origin.”
In other words, the campaign rhetoric ignored the substance of the decision, and counted on the fact that the vast majority of Americans had no idea what exactly the New Jersey court had actually ordered. The opinion called for equal rights, and that was close enough to justify a full-blown “save marriage” sound bite.
The release of the New Jersey decision had long been expected for late October. Since many observers expected a marriage victory, it’s a given that both Republican and Democratic strategists prepared reactions in advance. When the justices instead delivered a more complicated verdict, Republicans simply glossed over the inconvenient details.
In Virginia, Republican Sen. George Allen issued no less than five press releases condemning New Jersey and painting his opponent, James Webb, as a pawn of the liberal gay rights machine. Virginia, where the outcome of the close Senate race will help decide whether Republicans maintain control of the upper house, is one of eight states considering an amendment to outlaw same-sex marriage next week.
According to the Richmond Times Dispatch, three polls conducted over the weekend showed Webb had gained the lead over the former front runner by three or four points, but that can likely be attributed, at least in part, to allegations that Allen, when he was a college student, regularly referred to African-Americans with a pejorative.
The Tennessee Senate race, another hard fought battle between Congressman Harold Ford and Chattanooga Mayor Bob Corker, could also be affected by a marriage vote, although both Ford and Corker are against same-sex marriage and the Tennessee measure is expected to sail through. Nonetheless, if voters decide to make a special effort based on a perceived threat to marriage, the extra support could give Corker a lift.
Writing on his Crystal Ball Web site, political analyst Larry Sabato called the ruling “a Republican gift of yet to be determined value.”
Sabato agrees with other observers that the gay marriage card has lost some of its power over the electorate since 2004. Nonetheless, New Jersey’s ruling, he says, “holds the potential to revive dormant conservative hostility towards judicial liberals at a time when many conservatives, disheartened by the Foley scandal and other Washington improprieties, may have considered sitting this midterm out.”
There is also, however, a sense that the electorate is weary of the subject of same-sex marriage. Far right conservatives will no doubt never tire of the so-called social issues, but the vast majority of voters place Iraq, terrorism and economic concerns at the top of their lists, leaving gay marriage at the bottom.
Although pre-election polls suggest that all eight of the marriage amendments will pass, there is an indication that support is much lower than the 70 percent or so we have come to expect in the states of Arizona, Virginia, Wisconsin and Colorado. Idaho, Tennessee, South Dakota and South Carolina seem headed to larger amendment victories. Whether or not New Jersey’s ruling will effect the amendment votes is debatable.
Marriage amendments have earned their sizable majorities in part because many voters who don’t care much about the issue, nonetheless lean towards “traditional marriage.”In the last two years, however, there has been significant coverage of the hidden language in many of these measures that may threaten unmarried couples in general and preempt partner rights.
Finally, as the New York Times reports, the decision may have little or no impact in gay-friendly New Jersey itself, where Republican Senate candidate Thomas H. Kean’s spokeswoman, Jill Hazelbaker, says he will “stick with the issues that we’ve been winning on this entire campaign.”
Kean is running against incumbent Democrat Robert Martinez, who is clinging to a small lead.
This article appeared in the Dallas Voice print edition, November 3, 2006.