In Favor of Same-Sex
Marriage
NJ Law Journal from
BlueJersey.net March 13, 2006
"History should be considered a
guide, not a harness, to recognition of constitutional rights, and patterns of
the past cannot justify contemporary violations of constitutional guarantees.
- Judge Collester's dissent in Lewis v. Harris
On Feb. 15, the New Jersey Supreme Court heard oral argument in Lewis v.
Harris, a case that will decide whether same-sex couples have a right to
marry under the New Jersey Constitution. From the inception of Lewis v.
Harris almost four years ago, we have visited the subject of gay marriage
several times. In two editorials titled Same-Sex Unions and Who Shall
Decide? [169 N.J.L.J. 1344, Sept. 30, 2002], we expressed our strong support for
"same-sex state-licensed union of gay couples with all the rights and
obligations the state confers upon heterosexual couples who are married."
While we endorsed same-sex unions, we were silent about the state denominating
the union a "marriage." However, after carefully considering the arguments
made before the Court, we end our silence. We endorse the right of people
of the same sex to marry and urge the Court to declare that such a right is
rooted in our state constitution.
We are aware that the Legislature attempted to deal with some of the concerns of
same-sex couples through the passage of the Domestic Partnership Act.
However, in an amicus brief to the Court in Lewis, the State Bar
Association commented that existing law falls far short of providing equality in
areas that heterosexual couples take for granted. According to the State
Bar's brief, when domestic partners have their relationships sanctioned by the
state, they cannot automatically take each other's name. The law does not
explain each partner's rights and obligations with respect to children, employee
benefits, or estate planning. They do not receive the same tax or survivor
benefits that married couples enjoy. The law treats domestic partners in a
failed relationship very differently from heterosexual couples on issues ranging
from alimony, to child support, to visitation rights, to the equitable
distribution of assets. Even in death, as one of the plaintiffs sadly
learned, the law does not recognize the rights of a domestic partner to carry
out her partner's wish to have her body donated to science to aid in finding a
cure for the disease that took her life.
Although, the Legislature's progressive Domestic Partnership Act may have
addressed some of the concerns of same gender couples, it essentially created a
"separate, but not equal" status for domestic partners that not only failed to
provide for equality of rights, but also failed to provide many same-sex couples
with what they truly seek: dignity. As one of the justices pointed
out, "[The plaintiffs] want the respect and respectability of marriage and the
stature and status of marriage." This lack of equality is not only unfair,
it is unconstitutional.
In Lewis, the state offered three bases for its position: the
historical definition of marriage, the separation of powers, and the original
intent of the framers. None of these arguments is persuasive. The
state's reliance on the historical definition of marriage as being between a man
and a woman fails in our view because it seeks to use past discrimination to
justify continuing the practice. The fact is that society no longer
subscribes to the so-called "traditional" view of marriage, which derives from a
time when wives were deemed chattel, when they could not own property in their
name, and when they could not be raped by their husbands. None of these
"traditional" views of marriage remain part of our jurisprudence.
Each time our American society has pondered extending fundamental rights -- from
emancipation, to women's suffrage, to Civil Rights, to interracial marriage, to
gay and lesbian adoption -- a vocal majority has feared that the extension of
our basic rights to the minority would alter the American way of life.
Those fears have always proved unfounded, even if the majority was not always
ready to immediately accept the change.
For the same reasons, we are not persuaded by the State's "original intent"
argument. At the oral argument, the State argued that same-sex marriages
could not have been enshrined in the 1947 Constitution because it "was a foreign
concept to the founders of the Constitution." This issue was convincingly
addressed in Judge Collester's dissent in the Appellate Division, where he
debunked the argument that same-sex couples have no right to marry because the
framers could not have envisioned any type of marriage other than as between
heterosexual couples. His opinion explored the evolution of constitutional
doctrine into areas that were unimaginable in the past. Indeed, as his
dissenting opinion explained, the concept of marriage itself is an "evolving
paradigm" that has radically changed over time. Whatever the framers of
our State Constitution may have thought of marriage at the time is quite
different in many respects from the way law and society treat marriage now.
We agree with Judge Collester that present-day discrimination cannot be
justified by relying upon the moral standards of the past.
Finally, the separation of powers argument is equally unpersuasive. The
courts are constitutionally required to protect citizens from laws that
unreasonably restrain fundamental rights. Rights that were unavailable to
many minorities at the start of the last century are now a part of the basic
framework of who we are as a society. History is replete with examples of
traditions, long cherished, which, when they became indefensible, fell.
Sometimes a court wielded the ax; sometimes the Legislature. No one today
would rightly question whether African-American children should be able to go to
the same public schools as white children, but it took a decision from a
unanimous U.S. Supreme Court to lead the way. Fifty years from now, our
great grandchildren, having grown up in a world where same-sex marriage is a way
of life, will read their handheld, electronic history "books" and wonder what
all of the fuss was about.
A ruling in favor of the plaintiffs in this case will not signal the unwarranted
usurpation of the legislative function by an "activist" court. Rather, it
would serve as a text-book example of the Court doing what it is
constitutionally compelled to do -- protect the rights of the minority where the
Legislature has failed to do so.
In addition to the substantial legal support for same-sex marriage, there is no
satisfactory counterpoint to the humaneness of permitting those of the same
gender who want the dignity of being recognized by the community as "married" to
have that dignity. If same-sex couples are willing to accept the substance
of marriage, they are entitled to its form. As Judge Collester stated so
plainly and eloquently, the right to marry is "effectively meaningless unless it
includes the right to marry a person of one's own choice." After careful
consideration, we believe the State Constitution prohibits the state from
denying the fundamental right to marry to same-sex couples and we encourage the
Court to say so.
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