By David Caddell
As voters in several states prepare to decide on November 7th whether their respective state constitutions will define marriage as a union between one man and one woman, the Supreme Court of New Jersey has issued an opinion that is almost sure to influence that vote--one way or the other.
On October 25, 2006, the Supreme Court of New Jersey made national headlines by ruling that under the New Jersey Constitution same-sex couples must be afforded on equal terms the same rights and benefits enjoyed by heterosexual couples under the state's civil marriage statutes. While their ruling stopped short of declaring that same-sex couples have the right to claim the legal title "marriage,"--a determination the court said would be better left to the democratic process--the state's highest court made clear that no matter the title given to same-sex relationships, it must be on equal terms with heterosexual couples' right to marry.
The legal standoff began on June 26, 2002, when a group of same-sex couples brought a legal challenge in the New Jersey courts claiming the state was denying them liberty and equal protection under the law by rejecting their requests for a marriage license based on their sexual orientation. The group included seven same-sex couples, each differing in time of commitment. One couple, for example, had been in a committed relationship for 32 years and shared the responsibility of raising a son, while another couple had been together for 14 years with no children. Collectively, though, each couple had been in a committed relationship for at least ten years and each person considered their partner a spouse despite not having the legal title of "marriage."
Importantly, the same-sex couples brought their challenge under the New Jersey Constitution rather than the U.S. Constitution. They relied on the state constitution's guarantee that "All persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty...and of pursuing and obtaining safety and happiness." This language, they insisted, provided them a right to get married or at the very least the right to receive equal rights and benefits as opposite-sex couples. In response, the state simply rested its argument on the "age-old traditions, beliefs, and laws, which have defined the essential nature of marriage to be the union of a man and a woman." In essence, the state argued the traditional view of marriage had been so well established that the court should not find a different view of marriage in the constitution. The only way the legal relationship of same-sex couples could be changed, the state submitted, was through the democratic process.
The trial court agreed with the state, finding that "same-sex marriage was so foreign" to those who passed the state's marriage statute in 1912 that "a ban on same-sex marriage hardly needed mention." The trial court then went on to conclude that the state's marriage laws did not deny same-sex couples the equal protection of the law guaranteed by the New Jersey Constitution. The judge determined that "limiting marriage to mixed-gender couples is a valid and reasonable exercise of government authority" and the rights of same-sex couples could "be protected in ways other than alteration of the traditional understanding of marriage."
A divided three-judge panel of the New Jersey Appeals Court agreed with the trial court. Writing for the majority of the appellate panel, Judge Skillman wrote, "Our leading religions view marriage as a union of men and women recognized by God," and that "our society considers marriage between a man and woman to play a vital role in propagating the species and in providing the ideal environment for raising children." The lone dissenting judge, Judge Collester, however, saw the case differently. After charting the evolving nature of the institution of marriage and protections afforded to same-sex couples, Judge Collester concluded that traditional notions of marriage "cannot justify contemporary violations of constitutional guarantees." In other words, Judge Collester felt that no matter the longstanding history and tradition of marriage in New Jersey as between a man and a woman, such views must give way to today's notions of fairness and equality in the New Jersey Constitution--notions Judge Collester believed demanded equality for same-sex couples. Judge Collester also attacked the majority's suggestion that maintaining traditional marriages is important to society's need for healthy families. He believed that if marriage is "the optimal environment for child rearing," then children would be better served by living with married same-sex couples rather than unmarried same-sex couples. In the end, this splintered decision would ultimately be resolved by the Supreme Court of New Jersey.
Upon deciding to review the case, the task before the Supreme Court of New Jersey was two-fold. As before, the first task for the court was to determine whether the New Jersey Constitution provided same-sex couples a "fundamental right" to get married. And in the alternative, the court was asked to determine whether the New Jersey Constitution's guarantee of equal protection required the government to at least afford same-sex couples the same rights and benefits as those afforded to heterosexual couples--namely, benefits for health insurance, family leave time from employers and benefits of the inheritance tax.
Writing for the majority of the state's Supreme Court, Justice Albin began the court's opinion by discussing how ordinary the day-to-day routines the same-sex couples' lives are, particularly as compared to those of the traditional family. Justice Albin explained, "In terms of the value they place on family, career, and community service, plaintiffs lead lives that are remarkably similar to those of opposite-sex couples." He observed how one of the couples had lived together for 17 years and had children and grandchildren. He noted how one of the plaintiffs was an ordained minister in a church while another plaintiff was a nurse. He discussed how one plaintiff cared for her partner's parents and how another plaintiff served on her community's planning board.
Justice Albin , however, then turned to the frustrations and difficulties these couples face due to their sexual orientation. Justice Albin stated, "The seeming ordinariness of plaintiffs' lives is belied by the social indignities and economic difficulties that they daily face due to the inferior legal standing of their relationships compared to that of married couples." He explained how same-sex couples have to endure expensive and time-consuming adoption procedures, pay excessive health insurance premiums not required of married couples, and their inability to get "family leave" time from employers when their partner is sick. Justice Albin continued by pointing out how hospitals deny privileges to same-sex couples typically available to married couples and how children of same-sex couples face embarrassment and anguish when they attempt to explain their family status to others.
Representing a majority of the New Jersey Supreme Court, Justice Albin applied these daily realities to the legal issues at hand to conclude, "Although we cannot find that a fundamental right to same-sex marriage exists in this State, the unequal dispensation of rights and benefits to committed same-sex partners can no longer be tolerated under our State Constitution."
Addressing the issue of whether a fundamental right exists for same-sex marriage, the court failed to find one. Justice Albin declared, "In searching for the meaning of 'liberty'...we must resist the temptation of seeing in the majesty of that word only a mirror image of our own strongly felt opinions and beliefs. Under the guise of newly found rights, we must be careful not to impose our personal value system on eight-and-one-half million people, thus bypassing the democratic process as the primary means of effecting social change in this State." Concluding the issue, Justice Albin explained, "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 it ranks as a fundamental right."
From there, however, the court concluded that New Jersey's unequal treatment of same-sex couples and heterosexual couples violated the equal protection rights guaranteed in the New Jersey Constitution. According to the court, although New Jersey had come a long way in affording protections to same-sex couples, it had also significantly failed them in important respects.
The court first took note of New Jersey's legislative and judicial advancement in the area of same-sex couples' rights. For example, the state legislature passed a law guaranteeing that gays and lesbians, as well as same-sex partners, will not be subject to discrimination in pursuing employment opportunities, gaining access to public accommodations such as stores and restaurants, obtaining housing, seeking credit and loans from financial institutions, and engaging in business transactions. The justice continued by pointing out how the New Jersey courts continued the path marked by the legislature by being the first state in the nation to judicially recognize the right of an individual to adopt a same-sex partner's biological child. More importantly, however, Justice Albin noted that the New Jersey legislature adopted the state's Domestic Partnership Act which remedied some of the economic and social disparities between committed same-sex couples and married heterosexual couples. In passing this law, Albin observed, the legislature found for same-sex couples "to have access to these rights and benefits is paramount in view of their essential relationship of any reasonable conception of basic human dignity and autonomy, and the extent to which they will play an integral role in enabling these persons to enjoy their familial relationships as domestic partners."
The Domestic Partnership Act, however, did not go far enough for the majority of the New Jersey Supreme Court. Despite these advancements toward gay rights Justice Albin went on to focus on the disparities that still exist for same-sex couples in New Jersey. Justice Albin opined, "the Act has failed to bridge the inequality gap between committed same-sex couples and married opposite-sex couples." For example, Albin noted, same-sex couples could not change their surname without petitioning the court, own property jointly by operation of law, receive survivor's benefits under various state laws, or enjoy the testimonial privilege given to the spouse of an accused in a criminal trial. Furthermore, "domestic partners" received fewer protections in the workplace than married couples and the state's laws regulating wills were different for "domestic partners" than married couples. And perhaps most importantly to the majority of the court was that the Domestic Partnership Act did not provide committed same-sex couples the family law protections available to married couples, noting "the Act is silent on critical issues relating to custody, visitation, and partner and child support in the event a domestic partnership terminates."
Focusing on the family, the court also concluded that denying equal rights to same-sex couples harmed children and the family unit. Justice Albin wrote, "There is something distinctly unfair about the State recognizing the right of same-sex couples to raise natural and adopted children and placing foster children with those couples, and yet denying those children the financial and social benefits and privileges available to children in heterosexual households." Albin continued, "To the extent that families are strengthened by encouraging monogamous relationships, whether heterosexual or homosexual, we cannot discern any public need that would justify the legal disabilities that now afflict same-sex domestic partnerships."
Based on these disparities, the court agreed with the plaintiffs that the state's marriage laws have relegated them to "second-class citizenship" by denying them the "tangible and intangible" benefits available to married heterosexual couples. Justice Albin declared,
There are more than 16,000 same-sex couples living in committed relationships in towns and cities across this State. Gays and lesbians work in every profession, business, and trade. They are educators, architects, police officers, fire officials, doctors, lawyers, electricians, and constructions workers. They serve on township boards, in civic organizations, and in church groups that minister to the needy. They are mothers and fathers. They are our neighbors, our co-workers, and our friends. In light of the policies reflected in the statutory and decisional laws of this State, we cannot find a legitimate public need for an unequal legal scheme of benefits and privileges that disadvantages committed same-sex couples.
To this end, the majority of the Supreme Court of New Jersey declared, "We now hold that under the equal protection guarantee of Article I, Paragraph I of the New Jersey Constitution, committed same-sex couples must be afforded on equal terms the same rights and benefits enjoyed by married opposite-sex couples." They concluded by providing the New Jersey legislature 180 days to either amend the marriage statutes to include same-sex marriage or create a separate structure such as a civil union that would afford equal rights to same-sex couples.
While the New Jersey Supreme Court's decision is clearly only binding on the Garden State, it brings the total number of states affording same-sex couples the same rights as opposite-sex couples to four. New Jersey joins Vermont, Massachusetts and Connecticut in this respect. In fact, Massachusetts remains the only state to extend the legal title "marriage" to same-sex couples. Now, only time will tell whether same-sex marriage will be a part of New Jersey's law. One thing, however, is clear. This decision will likely have an effect on how voters among the states with same-sex marriage on the ballot will vote this November 7th.
David Caddell is an associate staff attorney at The Rutherford Institute.