Wall Street Journal October 27, 2006; Page A14

This week’s New Jersey Supreme Court’s judicial diktat on same-sex-somethings (name to be determined later) is a remarkable arrogation of power by the judiciary. The court’s belief that it is empowered to embark on social experimentation in the field of marriage is embodied in the words — “We have decided that our State Constitution guarantees that every statutory right and benefit conferred to heterosexual couples through civil marriage must be made available to committed same-sex couples . . .” (our emphasis).

Along its merry way, the decision does strive for a semblance of humility and rigor, perhaps out of a troubled conscience about judicial overreach. “The great engine for social change in this country has always been the democratic process,” the court avers. The justices also quote a lower-court ruling to the effect that “a constitution is not simply an empty receptacle into which judges may pour their own conceptions of evolving social mores.”

That this is disingenuous, however, is made plain by the fact that the justices are willing to trust “the democratic process” only with the semantic question of what to call these unions: “The name to be given to the statutory scheme that provides full rights and benefits to same-sex couples, whether marriage or some other term, is a matter left to the democratic process.” Apparently New Jersey voters are supposed to be grateful that their judicial overlords have delegated this policy ornamentation.

Ironically, however, the court held that the decision of the state legislature to pass a law in 2004 recognizing “domestic partnerships,” and specifically distinguishing them from marriages, weighs in favor of same-sex-somethings. It seems that a political compromise arrived at democratically does not satisfy the justices’ desire for the legislature to act as a “great engine of social change.” So the justices gave the engine orders from their headquarters.

And while declining to identify a “fundamental right” to same-sex marriage, the court simultaneously declared that “the unequal dispensation of rights and benefits to committed same-sex partners can no longer be tolerated under our State Constitution.” All in all, the ruling reveals judges writing law entirely on their own but trying to cover their political tracks.

If many on the judicial and political left get their way, those tracks will soon extend to the rest of the country as well. We’ve opposed an amendment to the U.S. Constitution banning same-sex marriage on grounds that this is an issue best settled by state legislators. However, most liberals would be only too happy to impose the New Jersey standard on every other state through the Constitution’s “full faith and credit” clause.

The Defense of Marriage Act, signed by Bill Clinton in 1996, is supposed to protect against this sort of cross-state social imperialism. But watch as activists and many Democrats now seek to use the New Jersey ruling to coax the U.S. Supreme Court to overrule that legislation. When cultural revolutions are in the liberal saddle, democratic formalities always seem to get stomped by “We have decided.”