Gay Marriage in the State Courts: New Jersey

Gay marriage litigation continues to occur in several states. On October 25, 2006 the Supreme Court of New Jersey decided Lewis v. Harris.¹ This article, the third in a series, will overview and summarize this case. 

The New Jersey Supreme Court, Justice Barry Albin writing for the 4-3 majority, held that “[a]lthough 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.”² The court then gave the New Jersey Legislature 180 days to either amend the civil marriage statutes to include same-sex couples or come up with a parallel statutory structure which would give same-sex couples the same rights and benefits as marriage.

Background and Procedural History

The plaintiffs were seven same-sex couples to whom their respective municipalities denied marriage licenses. In June 2002 they sued in state court, challenging the constitutionality of New Jersey’s marriage statutes under the New Jersey constitution. They did not make a federal claim. 

The plaintiffs sought a declaration that the laws denying same-sex marriage violated Article I, Paragraph 1 of the current New Jersey Constitution, adopted in 1947, which states: “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, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness.” The plaintiffs also sought injunctive relief compelling New Jersey’s state officials to grant them marriage licenses.³

The trial court entered summary judgment in the state’s favor and dismissed the complaint. It concluded in an unpublished opinion that marriage is restricted to the union of a man and a woman under New Jersey law, stating that the notion of “same-sex marriage was so foreign” to the legislature which passed the 1912 marriage statute that, for them, specifically banning same-sex marriage “hardly needed mention.”

The appellate division affirmed, 2-1.⁴ Notably, Judge Anthony Parrillo’s concurrence stated that the plaintiff’s requested relief was twofold: the right to marry and the rights of marriage. Interestingly, the New Jersey Attorney General did not rely on promotion of procreation and creating the optimal environment for raising children as a justification for limiting marriage to heterosexual couples as other state Attorneys General had done; New Jersey law specifically permits same-sex couples to adopt and raise foster children. Judge Donald Collester dissented, stating that in his view the majority’s argument was circular: the plaintiffs have no constitutional right to marry because New Jersey’s laws by definition do not permit same-sex couples to marry. Because there was a dissent, the case went before the New Jersey Supreme Court as an appeal as of right.

The questions before the New Jersey Supreme Court were (1) “whether persons of the same sex have a fundamental right to marry that is encompassed within the concept of liberty guaranteed by Article I, Paragraph 1 of the New Jersey Constitution,” and (2) “whether Article I, Paragraph 1’s equal protection guarantee requires that committed same-sex couples be given on equal terms the legal benefits and privileges awarded to married heterosexual couples, and, if so, whether that guarantee also requires that the title of marriage, as opposed to some other term, define [sic] the committed same-sex legal relationship.”

No Fundamental Right To Same-Sex Marriage

The court, in assessing the plaintiffs’ liberty claim, stated that it “must determine whether the right of a person to marry someone of the same sex is so deeply rooted in the traditions and collective conscience of our people that it must be deemed fundamental under Article I, Paragraph 1.” 

New Jersey courts, when attempting to discern whether a claimed right is fundamental, adopted the U.S. Supreme Court’s general standard for construing the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution. The New Jersey analysis involves a two-step inquiry: (1) the asserted fundamental liberty interest must be clearly identified; and (2) that liberty interest must be objectively and deeply rooted in the traditions, history, and conscience of the people of New Jersey.

The court carefully framed and defined the right in question as the right to same-sex marriage, citing Washington v. Glucksberg, a case which involved a challenge to the State of Washington’s law prohibiting and criminalizing assisted suicide.⁵ The Glucksberg Court defined the liberty interest at issue as the “right to commit suicide with another’s assistance,” not the “liberty to choose how to die.” Thus, the Court concluded that the right to assisted suicide was not deeply rooted in the nation’s history and traditions and therefore not a fundamental liberty interest under substantive due process.

The New Jersey Supreme Court chose to be careful, noting that Glucksberg (citing Moore v. East Cleveland)⁶ advised caution when dealing with fundamental rights, “lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the members of this Court.”

The court stated that marriage is a fundamental right under both the federal and New Jersey constitutions, although subject to reasonable state regulation. The court, however, stated that the “liberty interest at stake [in this case] is not some undifferentiated, abstract right to marriage, but rather the right of the people of the same sex to marry. Thus, we are concerned only with the question of whether the right to same-sex marriage is deeply rooted in this State’s history and collective conscience.” 

The court examined the legal history of marriage in New Jersey. The plaintiffs agreed that the state may regulate marriage, such as prohibiting polygamy and placing restrictions based on consanguinity and age. They also agreed that New Jersey’s civil marriage statutes, first enacted in 1912, limit marriage to heterosexual couples by using gender-specific language in the text. The court stated that “the framers of the 1947 New Jersey Constitution, much less the drafters of our marriage statutes, could not have imagined that the liberty right protected by Article I, Paragraph 1 embraced the right of a person to marry someone of his or her own sex.” Even in the modern day, the state legislature explicitly acknowledged in the 2004 Domestic Partnership Act that same-sex couples cannot marry. The court went on to note that the laws of every state except for Massachusetts either explicitly or implicitly define marriage to mean the union of a man and a woman.

The court also noted, however, that “[t]imes and attitudes have changed” towards homosexuals; New Jersey had several laws and judicial decisions prohibiting discrimination against homosexuals in several different areas. The plaintiffs in contrast relied on Romer v. Evans⁷ and Lawrence v. Texas,⁸ as examples where the U.S. Supreme Court struck down laws that unconstitutionally targeted homosexuals for disparate treatment, and thus as support for their argument that they have a fundamental right to marry. 

The court disagreed. It noted that Justice O’Connor’s Lawrence concurrence strongly suggested that a state’s legitimate interest in “preserving the traditional institution of marriage” would permit distinguishing between heterosexuals and homosexuals without offending equal protection principles. The court further stated that, although “those recent cases openly advance the civil rights of gays and lesbians, they fall far short of establishing a right to same-sex marriage deeply rooted in the traditions, history, and conscience of the people of this State.”

The plaintiffs also cited Loving v. Virginia, where the U.S. Supreme Court struck down Virginia’s antimiscegenation statute as offensive to the Due Process and Equal Protection clauses of the Fourteenth Amendment.⁹ The court distinguished Loving from this case, noting that the heart of the Loving case was “invidious discrimination based on race, the very evil that motivated passage of the Fourth Amendment,” and stated that “[f]rom the fact-specific background of that case, which dealt with intolerable racial distinctions that patently violated the Fourteenth Amendment, we cannot find support for plaintiffs’ claim that there is a fundamental right to samesex marriage under [the New Jersey] Constitution.” The court further noted that all of the U.S. Supreme Court cases which the plaintiffs cited involved heterosexual couples.

Thus, despite the many recent advances homosexuals achieved towards social acceptance and legal equality, the court found that same-sex marriage was not a fundamental right.¹⁰

Equal Protection

Although New Jersey’s constitution does not specifically state that every person shall be entitled to the equal protection of the laws, New Jersey courts construe the expansive language of Article I, Paragraph 1 to include equal protection.

New Jersey courts weigh three factors when analyzing an equal protection claim: 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. The test measures the importance of the right against the need for the governmental restriction and is more flexible than the three-tiered federal equal protection analysis methodology of strict scrutiny, intermediate scrutiny, and rational basis. 

The New Jersey Supreme Court analyzed two questions: (1) whether committed same-sex couples have the right to the statutory benefits and privileges conferred on heterosexual married couples, and (2) if so, whether committed same-sex couples have a constitutional right to define their relationship with the word “marriage,” which historically characterized the union of a man and a woman. 

The court noted New Jersey law protects homosexuals and domestic partners from discrimination in a number of areas such as employment, housing, and adoption. New Jersey law also makes it a “bias crime” for a person to commit certain offenses with the purpose to intimidate an individual on account of sexual orientation and provides a civil cause of action against the offender.

One of those laws was the 2004 Domestic Partnership Act, which made available certain, but not all, rights and benefits that are accorded to married couples. The court stated that “the Act has failed to bridge the inequality gap between committed same-sex couples and married opposite-sex couples” in a number of ways. It also disadvantaged children of same-sex domestic partners in ways that children of married couples are not. Furthermore, same-sex couples were also subject to more stringent requirements to enter into a domestic partnership than opposite-sex couples entering into marriage. 

The court stated that the question was only whether same-sex couples were entitled to the same rights and benefits as married couples, not changing the traditional definition of marriage to include same-sex marriage. The court found that, besides sustaining the traditional definition of marriage, the state failed to articulate a legitimate public need for depriving same-sex couples of marriage’s benefits. The court found no rational basis for giving homosexuals full civil rights in their status as individuals, but not in their status as same-sex couples. The court was particularly concerned about the disparate effect on children of same-sex couples, stating that 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.” 

The court therefore held that “under the equal protection guarantee of Article I, Paragraph 1 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.”

The Remedy

The court stated that the legislature had 180 days to either amend the existing marriage statutes to include same-sex couples, or it could create a separate and parallel statutory structure, such as a civil union, affording samesex couples all of the same rights and responsibilities as heterosexual married couples. The court noted that Connecticut’s and Vermont’s civil union statutes, and California’s domestic partnership statute, do exactly that.¹¹ The court practically laid out a constitutional civil union roadmap for the legislature to follow. It first provided assurance that a civil union statute would not be presumed unconstitutional. It then stated that:

[i]f the Legislature creates a separate statutory structure for same-sex couples by a name other than marriage, it probably will state its purpose and reasons for enacting such legislation. To be clear, it is not our role to suggest whether the Legislature should either amend the marriage statutes to include same-sex couples or enact a civil union scheme. Our role here is limited to a constitutional adjudication, and therefore we must steer clear of the swift and treacherous currents of social policy when we have no constitutional compass with which to navigate… [h]owever the Legislature may act, same-sex couples will be free to call their relationships by the name they choose and to sanctify their relationships in religious ceremonies in houses of worship.

The court, apparently looking to head off a future “separate but equal” challenge, noted that the plaintiffs had already argued that a parallel structure not called marriage would be unsatisfactory. The court agreed with the state’s argument that:

if the age-old definition of marriage is to be discarded, such change must come from the crucible of the democratic process [and] the power to define marriage rests with the Legislature, the branch of government best equipped to express the judgment of the people on controversial social questions... we cannot escape the reality that the shared societal meaning of marriage—passed down through the common law into [New Jersey] statutory law—has always been the union of a man and a woman… [o]ur decision today significantly advances the civil rights of gays and lesbians… the great engine for social change in this country has always been the democratic process. Although courts can ensure equal treatment, they cannot guarantee social acceptance, which must come through the evolving ethos of a maturing society.

Dissent

Chief Justice Deborah Poritz, on the day of her retirement, authored the dissent, stating that in her view the plaintiffs had a fundamental right to marry. She noted that the plaintiffs were concerned not only with marriage’s rights and benefits, but also with its “deep and symbolic significance.” She stated that civil unions would send the message that “what same-sex couples have is not as important or as significant as ‘real’ marriage, that such lesser relationships cannot have the name of marriage… [w]hat we ‘name’ things matters, language matters.” 

Chief Justice Poritz further stated that:

[o]f course there is no history or tradition including samesex couples. If there were, there would have been no need to bring this case to the courts. As Judge Collester points out in his dissent below, “[t]he argument is circular: plaintiffs cannot marry because by definition they cannot marry ... Had the United States Supreme Court followed the traditions of the people of Virginia, the Court would have sustained the law that barred marriage between members of racial minorities and Caucasians … the Court did not frame the issue as right to interracial marriage, but, simply, as a right to marry sought by individuals who had traditionally been denied that right.

In direct contrast to the majority’s caution, Chief Justice Poritz cited Justice Kennedy’s Lawrence opinion, stating that “times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.” Interestingly, she also cited Alexander Hamilton’s Federalist No. 78, stating that the courts are “‘the bulwarks of a limited Constitution against legislative encroachments’ because [Hamilton] believed that the judicial branch was the only branch capable of opposing ‘oppressions [by the elected branches] of the minor party in the community.’ Our role is to stand as a bulwark of a constitution that limits the power of government to oppress minorities.”¹²

New Jersey’s Civil Unions

New Jersey’s new civil union law went into effect on February 19, 2007. New Jersey Attorney General Stuart Rabner issued an opinion for New Jersey’s Department of Health and Senior Services, the entity responsible for registering civil unions, stating that under the new law same-sex couples who were legally married elsewhere, such as Massachusetts, will have all the rights and responsibilities of married people in New Jersey, but may not call themselves “married.” Instead, New Jersey will recognize those couples as civil unions. Couples who have domestic partnerships with lesser obligations and benefits than marriage, such as those in Maine and Washington, D.C., will be considered domestic partners in New Jersey. As of this writing, Massachusetts, Canada, the Netherlands, South Africa and Spain are the only jurisdictions which have same-sex marriage. Vermont and Connecticut have civil unions, and California has domestic partnerships, very similar to civil unions. 

It is possible that litigation over New Jersey’s civil union law will occur; many same-sex marriage advocates believe that the civil union structure amounts to a constitutionally impermissible “separate-but-equal” structure. 

Conclusion

Gay marriage litigation continues to be an active and controversial area which future articles in the series will continue to cover. For example, cases from Connecticut and California are still pending. While the parties and the justices in Lewis v. Harris took slightly different approaches than those in other state gay marriage litigations, a continuing common thread is the majority judges’ extra effort to not come across as anti-homosexual, and to insulate themselves personally from the legal rulings.

 

Endnotes

 

1 908 A.2d 196 (N.J. 2006). 

2 The New Jersey Supreme Court is the highest court in New Jersey. It has a chief justice and six associate justices. The governor appoints the justices and confirmed by the state senate for an initial term of seven years. On reappointment, they are granted tenure until they reach the mandatory judicial retirement age of 70. Governor James E. McGreevey (D-NJ) nominated Justice Albin to the court on July 20, 2002. Governor McGreevey left office on November 15, 2004, approximately three months after admitting that he had had an extramarital affair with a male employee. 

3 The name defendant, “Harris,” is Gwendolyn L. Harris, who at the time was Commissioner of the New Jersey Department of Human Services. 

4 While plaintiffs’ appeal was pending before the appellate division, the legislature enacted and Governor McGreevey signed the Domestic Partnership Act, which became effective on July 10, 2004. The act afforded certain rights and benefits to same-sex couples who enter into domestic partnerships, but not the same rights and benefits as heterosexual married couples.

5 521 U.S. 702 (1997). 

6 431 U.S. 494 (1977). 

7 517 U.S. 620 (1996). 

8 539 U.S. 558 (2003). 

9 388 U.S. 1 (1967). 

10 The court noted that no state has found a fundamental right to same-sex marriage, not even Massachusetts, which never reached the fundamental right analysis because it found no rational basis for denying same-sex couples the right to marry under the Massachusetts constitution. 

11 Connecticut’s civil union statute is currently under challenge, and that case will be covered in the next installment of this series. 

12 Federalist No. 78 also states that: 

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power… It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature. This might as well happen in the case of two contradictory statutes; or it might as well happen in every adjudication upon any single statute. The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body. The observation, if it prove any thing, would prove that there ought to be no judges distinct from that body.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].