In response, a letter titled Gay marriage isn't the court's issue was published in the NJ Star-Ledger in which Daniel Wicks asserted that "Same-sex marriage, without question, is a political question and therefore beyond the jurisdiction of the courts." The question of whether gays should be allowed to marry belongs, he said, "in the political arena."
He went on to cite one of the Founding Fathers to support his position. "Courts do not have the authority to create rights," said Wicks, adding:
This was made clear at our country’s founding when Alexander Hamilton, in Federalist No. 78, observed: “The legislature not only commands the purse but prescribes the rules in which the duties and rights of every citizen are to be regulated.”
So, is gay marriage a court or legislative (political) matter? I left these comments:
[I]t's easy to cite quotes out of context to advance one's position. Wicks does just that. In Federalist #78, Hamilton is saying the exact opposite of what Wicks contends, and what Hamilton's quote appears to say. In #78, Hamilton goes on to say:
The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.
Hamilton viewed the courts as guardians of the constitutional protections of individual rights, not as the source of rights. Rights "would amount to nothing," he says, without the courts to strike down "all acts contrary to the manifest tenor of the Constitution." What is the "manifest tenor of the constitution?" To protect the inalienable rights of individuals.
There's more, as Hamilton drives home the point:
There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.
It's also clear that Hamilton, like all of the Founders, did not view legislatures as the source of rights. The legislators' job is to make laws consistent with the constitution; which means, consistent with the protection of individual rights. "No legislative act, therefore, contrary to the Constitution, can be valid," says Hamilton. This is unequivocal. The courts not only may but are duty-bound to strike down laws that are "contrary to the constitution."
Clearly, laws forbidding gay marriage are contrary to the constitution. A marriage of a same sex couple is a voluntary contract between two consenting adults, which does not in any way violate the rights of others. The manifest tenor of the constitution and its philosophic blueprint, the Declaration of Independence, in no way sanctions legislatures to inhibit marriage contracts. As the Ninth amendment makes clear, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
No, "Courts do not have the authority to create rights." Neither do legislatures. No governmental institution does. And no governmental institution has the power to rescind rights. The government, as Hamilton and the Founders believed, is the servant. The people are the masters. What Judge Jacobson did was uphold the constitutional protection of an individual right. The court did its job.
New Jersey Court rightly Overturns Ban on Gay Marriage
Message to Gov. Christie and His Critics: Gay Marriage is Moral Right
Should a 'homosexual contract' be called something other than marriage?
Gay Marriage: The Right to Voluntary Contract, Not Coercive 'Contract'