The NJ Marriage Decision
The case is Lewis v. Harris, 2006 Westlaw 3019750 (NJ Sup. Ct., Oct. 25, 2006).
New Jersey Court Says Same-Sex Couples Are Constitutionally Entitled to Rights of Marriage but Not to Marriage Itself; Dissenters argue for full marriage rights
BY ARTHUR S. LEONARD
In a long-awaited ruling, the New Jersey Supreme Court announced by unanimous vote that the failure of the state to provide same-sex couples with the same rights that opposite-sex couples can obtain under state law by marrying violates the equal protection requirements of the state constitution. However, by a vote of 4-3, the court’s October 25 ruling rejected the argument that same-sex couples have a "fundamental right" to marry, and said that if the legislature passes a civil union law to comply with the court’s decision, that law would be "presumptively" constitutional. The court gave the legislature 180 days to take action, but did not specify what would happen if the legislature did not act.
The opinion for the court, written by Justice Barry T. Albin, pointed out that even in Massachusetts, where same-sex couples have a constitutional right to marry, the state’s highest court had not found that same-sex couples had a "fundamental" right to marry, but had instead premised its decision on equal protection principles. On the other hand, Justice Albin concluded that the state had provided no rational justification for depriving same-sex couples of the same tangible rights and benefits that are available to their heterosexual counterparts simply by marrying.
In a dissenting opinion for herself and two other members of the court, Chief Justice Deborah T. Poritz, aligning herself with views that had been expressed by the Massachusetts Supreme Judicial Court, argued that the distinction between the status of marriage and the rights provided by marriage was not supportable. However, Justice Poritz and her colleagues went a step further than the Massachusetts court, arguing that same-sex couples have the same fundamental right to marry that interracial couples have.
The lawsuit was filed by Lambda Legal in 2002 on behalf of seven same-sex long-term couples, several of whom are raising children. The trial court granted judgment to the state, and by a 2-1 majority the appellate division did the same. The case came to the state Supreme Court "as of right" because of the dissenting opinion in the appellate division.
New Jersey had been targeted as an ideal jurisdiction to bring such a lawsuit precisely because it has been in the forefront of recognizing gay rights, having outlawed anti-gay discrimination, provided enhanced penalties for anti-gay bias crimes, and taken significant steps in recognizing gay families in the context of adoption, foster care, custody and visitation. After the lawsuit was filed, the state passed a domestic partnership law that extended a limited number of rights to registered partners while adding to the anti-discrimination law a ban on discrimination against same-sex domestic partners. However, the domestic partnership law, for the first time, specifically stated that same-sex couples may not marry.
Having gone this far, it was hard for the state to come up with any rational justification for denying rights to same-sex couples, so it was easy for the court to conclude unanimously that excluding same-sex couples from all the rights of marriage under state law was impermissibly discriminatory.
The big divide between the justices came over the question of the name and status marriage itself, and the key point was how to characterize the right at stake, because in this area of constitutional argumentation, characterizing the claimed right is a major part of the battle. The plaintiffs said they were seeking the right to marry, plain and simple, and pointed out that both the U.S. and N.J. Supreme Courts have identified the right to marry as a "fundamental right."
But the majority of the court insisted that it was not that simple. Taking a backwards-oriented view of "fundamental rights" that looks to "history and tradition" to determine whether a right is fundamental, the majority focused on the lack of any history or tradition in support of same-sex marriage. The dissent criticized this as circular reasoning, and pointed out that if the U.S. Supreme Court had used the same reasoning, it would not have struck down the Virginia law against interracial marriage that was invalidated in the leading case of Loving v. Virginia in 1967, since there was no history or tradition of respect for interracial marriages in Virginia or America as a whole. Chief Justice Poritz pointed out that in Lawrence v. Texas, the U.S. Supreme Court had rejected the idea that history and tradition were the sole determinants of whether a right is constitutionally protected when it struck down the Texas sodomy law.
Writing for the majority in rejecting the fundamental rights claim, Justice Albin stated, "Despite the rich diversity of this State, the tolerance and goodness of its people, and the many recent advances made by gays and lesbians toward achieving social acceptance and equality under the law, we cannot find that a right to same-sex marriage is so deeply rooted in the traditions, history, and conscience of the people of this State that it ranks as a fundamental right."
Turning to the equal protection argument, the majority divided up the analysis, first addressing whether denying equal benefits to same-sex couples violated the constitution, and only later taking up the question of whether denying actual marriage was also a violation.
Albin said that "the test the we have applied to such equal protection claims involves the weighing of three factors: the nature of the right at stake, the extent to which the challenged statutory scheme restricts that right, and the public need for the statutory restriction. . . . Unless the public need justifies statutorily limiting the exercise of a claimed right, the State’s action is deemed arbitrary."
After a lengthy review of the ways in which New Jersey has acted against anti-gay discrimination, and an enumeration of the many ways in which current law disadvantages same-sex couples and their children, Albin concluded that "under our current laws, committed same-sex couples and their children are not afforded the benefits and protections available to similar heterosexual households," leaving the question of what "public need" was served by continuing to allow this discrimination?
In light of New Jersey family law developments, the state could not argue that "encouraging procreation" or channeling it into heterosexual marriages was necessary to create "the optimal living environment for children," an argument that other states have made, sometimes successfully, to their appellate courts. "Other than sustaining the traditional definition of marriage," wrote Albin, "which is not implicated in this discussion, the State has not articulated any legitimate public need for depriving same-sex couples of the host of benefits and privileges catalogued in [the prior section of the opinion]. Perhaps that is because the public policy of this State is to eliminate sexual orientation discrimination and support legally sanctioned domestic partnerships. The Legislature has designated sexual orientation, along with race, national origin, and sex, as a protected category in the Law Against Discrimination. Access to employment, housing, credit, and business opportunities is a civil right possessed by gays and lesbians. Unequal treatment on account of sexual orientation is forbidden by a number of statutes in addition to the Law Against Discrimination."
And, the clincher in the argument was that the legislature had in 2004 passed the Domestic Partnership Act, which outlawed discrimination against domestic partners as well. "There is no rational basis for, on the one hand, giving gays and lesbians full civil rights in their status as individuals, and, on the other, giving them an incomplete set of rights when they follow the inclination of their sexual orientation and enter into committed same-sex relationships," said Albin, going on to point out the special unfairness to children being raised by same-sex couples and not having the same rights and protections as children being raised by married couples.
But in turning to what it was treating as the second half of the equal protection analysis, the majority seemed to lose the point of its discussion of the first half, treating the issue of marriage itself as little more than a labeling matter. "Raised here is the perplexing question – ‘what’s in a name?’ – and is a name itself of constitutional magnitude after the State is required to provide full statutory rights and benefits to same-sex couples? We are mindful that in the cultural clash over same-sex marriage," wrote Albin, "the word marriage itself – independent of the rights and benefits of marriage – has an evocative and important meaning to both parties. Under our equal protection jurisprudence, however, plaintiffs’ claimed right to the name of marriage is surely not the same now that equal rights and benefits must be conferred on committed same-sex couples."
In other words, the majority was taking the position recently articulated by the Connecticut Superior Court, which rejected a marriage claim on the basis that the state’s Civil Union Act had given same-sex couples all the material rights and benefits, and thus the failure to go the last step to grant marriage did not present an equal protection issue of constitutional dimensions. This position essentially misses the point, as Chief Justice Poritz pointed out in her dissent, that this is not just about words, although she also makes the point quite eloquently that words have power, that naming things endows them with meaning, and that withholding the name itself inflicts a social harm as well as a legal one.
Nowhere does Justice Albin mention the important point, recently established by two federal appeals courts, that same-sex couples who have entered into civil unions or domestic partnerships do not have standing to contest the constitutionality of the federal Defense of Marriage Act, since they are not "married" in the eyes of their state and thus could not claim to have been deprived by the federal government of the rights provided to persons who are "married."
"We do not know how the Legislature will proceed to remedy the equal protection disparities that currently exist in our statutory scheme," wrote Albin. "The Legislature is free to break from the historical traditions that have limited the definition of marriage to heterosexual couples or to frame a civil union style structure, as Vermont and Connecticut have done. Whatever path the Legislature takes, our starting point must be to presume the constitutionality of legislation. We will give, as we must, deference to any legislative enactment unless it is unmistakenly shown to run afoul of the Constitution. Because this State has no experience with a civil union construct that provides equal rights and benefits to same-sex couples, we will not speculate that identical schemes called by different names would create a distinction that would offend Article I, Paragraph 1. We will not presume that a difference in name alone is of constitutional magnitude."
Once again, of course, this overlooks the fact that a civil union law that gave same-sex couples access to all the state law rights of married couples would not just be preserving a "difference in name alone." It is a difference in status that disempowers same-sex couples from being able to argue that their union must be recognized in other jurisdictions and by the federal government, and, as Chief Justice Poritz pointed out in her dissent, that preserves an inequality in human dignity by its very separateness.
Now the ball is in the Legislature’s court, and, as happened in Vermont after that state’s Supreme Court threw a similar challenge to the legislature, it is also clear that the ball is in Governor John Corzine’s court as well. In Vermont, then-Governor Howard Dean quickly endorsed the idea of a civil union statute, and the weight of his office helped get that law enacted, basically cutting off the possibility of a same-sex marriage law. (Of course, at the time it seemed unlikely the Vermont legislature would opt for a same-sex marriage law, and as it was the Civil Union Act only passed after impassioned legislature struggle.)
At the time, the Vermont Civil Union Act was a major advance, the first time a state had enacted a comprehensive status for same-sex couples providing almost all the rights made available to married couples. To the extent that a popular governor can exert a leadership role in responding to the court, Governor Corzine’s reaction will be as important as the reaction of the legislative leaders. In the past, Corzine has said he is opposed to same-sex marriage but supports civil unions. Perhaps his careful study of Chief Justice Poritz’s dissenting arguments might persuade him to modify his views and to provide the sort of leadership that could result in New Jersey becoming the first state to legislate affirmatively for same-sex marriage. But don’t hold your breath. . .