N.J. court rules that gay couples have‘same rights’

Volume Number 1 Issue Number 4 | October 20 - 26, 2006

BY ARTHUR S. LEONARD

In a long-awaited ruling, the New Jersey Supreme Court on Wednesday announced by a 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 Oct. 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 it failed to 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.

But significantly, Albin also concluded that New Jersey 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 virtue of being married.

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.

Poritz and her colleagues, however, 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,” which means that the dissenting opinion in the Appellate Division compelled that it be heard by New Jersey’s highest court.

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 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 bias protections for same-sex domestic partners. However, the domestic partnership law, for the first time in New Jersey statute, specifically stated that same-sex couples may not marry.

Having gone this far in terms of recognizing gay and lesbian couples, it was hard for the state to come up with any rational justification for denying them rights, 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 on the question of the name and status of marriage itself, and the key point was how to characterize the right at stake, because in this area of constitutional argumentation, characterizing the right that is being claimed 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 New Jersey 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 what right is fundamental, the majority focused on the lack of any history or tradition in support of same-sex marriage. The chief justice’s dissent criticized this as circular reasoning, and pointed out that if the U.S. Supreme Court had used the same logic, it would not have struck down the Virginia law against interracial marriage invalidated by 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.”

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 there, it is clear that the ball is also in Democratic 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. It should be noted, though, that more than six years ago, it was unlikely, at the very best, that the Vermont Legislature would opt for a same-sex marriage law — as it was, the Civil Union Act only passed after impassioned legislative struggle.

In 2000, 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, Corzine’s reaction will be as important as the reaction of the legislative leaders. Corzine has said he is opposed to same-sex marriage but supports civil unions.