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from Parenting & Family
Same-Sex Marriage Decision Issued
By New Jersey Supreme Court
By William C. Duncan, NARTH Legal Advisory Committee Chairman
LEWIS V. HARRIS
A-68-05
New Jersey Supreme Court
October 25, 2006
http://www.judiciary.state.nj.us/opinions/supreme/a-68-05.pdf
Both the trial and appellate courts rejected a constitutional challenge to New Jersey's marriage law.
On appeal, the New Jersey Supreme Court announced that "denying rights and benefits to committed same-sex couples that are statutorily given to their heterosexual counterparts violates the equal protection guarantee" of the state constitution. So, "the Legislature must either amend the marriage statutes to include same-sex couples or create a parallel statutory structure, which will provide for, on equal terms, the rights and benefits enjoyed and burdens and obligations borne by married couples." The "democratic process" is left with the decision as to what to call the status.
The court noted the state's concession that New Jersey law does not "support the argument that limiting marriage to heterosexual couples is necessary for either procreative purposes of providing the optimal environment for raising children." (In a footnote, the court said it would not consider arguments to the contrary made by amici.) The court rejected the plaintiff's argument for a broad right of marriage that would encompass same-sex marriage relying on the fact that such a right is not rooted in the history and tradition of New Jersey. The court rejected plaintiffs' reliance on previous right to marry cases since each of these involves opposite-sex couples.
In its equal protection analysis, the court distinguished between the statutory incidents of marriage and the name "marriage." The court relied heavily on state sexual orientation discrimination and domestic partnership laws to decide that same-sex couples have a "strong interest" in treatment equal to that given to opposite sex couples. The court noted the difference between marriage and domestic partnership in terms of benefits provided and ease of entrance. Since the state had not offered any justifications for the marriage law other than "sustaining the traditional definition of marriage," the court found that there was no justification for the differentiation in benefits between married couples and domestic partners. The court rejected the state's proffered interest in preserving unity with the marriage laws of other states.
The court believed, however, that "our democratically elected representatives should be given a change to address the issue under the constitutional mandate set forth in this opinion." The court thus orders the legislature to either (1) redefine marriage to include same-sex couples or (2) create a "parallel" institution to marriage that provides the incidents of marriage to same-sex couples within 180 days.
Three justices concurred in the opinion that the denial of benefits was unconstitutional but rejected the differentiation between the name and incidents of marriage. These judges felt that the label of "marriage" is itself of constitutional significance. They would have found a fundamental right to marry that included same-sex marriage.
Additional Reading: Parenting & Family.
Updated: 3 September 2008
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