Great speculation is sure to erupt in coming days about the impact yesterday’s marriage ruling in New Jersey will have on the course of the upcoming elections. New Jersey’s highest court held, four to three, that gay couples have a right to the same benefits that obtain for couples in heterosexual marriages but that an institution conferring those benefits need not be called “marriage.” Republicans will point to the ruling as evidence of their need to retain control of the Senate so that they can confirm jurists to the federal bench that will not stray into the judicial terrain trod by New Jersey’s state judges. Democrats will suggest that the ruling means that marriage isn’t under threat from judges at all, because the court has left “marriage” per se untouched.

By our lights, the Republicans have the better of that argument. The issue of marriage elicits strong emotions on both sides, and many people are genuinely torn. In that environment, it seems premature for judges to try to step in and settle the issue before legislatures have a chance to act. Especially so when a host of other restrictions on marriage, such as prohibitions on incest, belie the claim that marriage is a fundamental right with which the state shouldn’t interfere. Our sense has been that some, even if not all, opponents of court-imposed gay marriage have been more concerned that courts would settle the issue too hastily than that something resembling gay marriage might ultimately materialize. This ruling will exacerbate those fears.

Nor are they the only ones with reason to rue the ruling. Advocates of traditional marriage have long feared the courts, but yesterday’s ruling should also give pause to proponents of gay marriage. They haven’t won an outright endorsement of gay marriage, but there’s an even bigger problem for them. This ruling instead will send the message to legislatures that no good deed goes unpunished. For, as the court noted, the legislators in Trenton have been at the forefront of the gay rights cause, outlawing discrimination on the basis of sexual orientation and creating a domestic partnership law, even though the partnerships fell short of marriage or Vermont-style civil unions. Yet the legislature hadn’t been willing or ready to expand that legislation into marriage or civil unions.

That didn’t stop the court from citing that legislation as evidence that social mores in New Jersey have changed to the point where limiting marriage to heterosexual couples should be viewed as discriminatory. Never mind that mores had not evolved to the point where the legislature itself felt comfortable creating the “rights” the state’s supreme court has just discerned. Perhaps that was inevitable once the court decided to step into the marriage fray. Marriage, as with many social policies, does involve a certain amount of arbitrariness, even if one believes marriage should remain rooted in procreation. That, however, is precisely why marriage should be left to the legislatures, which, as The Great Scalia has taught, are better suited than the courts to finding the consensus by drawing lines a logician might find somewhat arbitrary.

New Jersey’s court has made a hash of the entire issue. Advocates for traditional marriage and the public will be able to see through the court’s semantic claim that one can preserve marriage by calling it something else in some instances. Proponents of gay marriage, instead of worrying that the court didn’t call it marriage, will worry that the ruling will freeze attempts in other legislatures to pass anti-discrimination laws for fear that such laws might goad a court into stepping further than the legislature is willing to go. It adds up to a case in point of how everyone ends up losing when courts decide these issues instead of deferring to elected lawmakers, and a reminder of how fortunate New Yorkers are that their highest court didn’t make the same mistake.