NJ Supreme Court Decision re
Same-Sex Civil Marriage
(This syllabus is not part of the opinion of the
Court. It has been prepared by the Office of the Clerk for the convenience of
the reader. It has been neither reviewed nor approved by the Supreme Court.
Please note that, in the interests of brevity, portions of any opinion may not
have been summarized).
Mark
Lewis and Dennis Winslow, et al. v. Gwendolyn L. Harris, etc., et al.
(A-68-05)
Argued February 15, 2006 -- Decided October 25, 2006
ALBIN, J., writing for a majority of the Court.
Plaintiffs are seven same-sex couples who have been in permanent committed
relationships for more than ten years. Each seeks to marry his or her partner
and to enjoy the legal, financial, and social benefits that marriage affords.
After being denied marriage licenses in their respective municipalities,
plaintiffs sued challenging the constitutionality of the State's marriage
statutes.
In a complaint filed in the Superior Court, Law Division, plaintiffs sought a
declaration that laws denying same-sex marriage violated the liberty and equal
protection guarantees of Article I, Paragraph 1 of the New Jersey Constitution.
They also sought injunctive relief compelling the
defendant State
officials to grant them marriage licenses. (The named defendants are Gwendolyn
L. Harris, former Commissioner of the Department of Human
Services, Clifton R. Lacy, former Commissioner of the Department of Health and
Senior Services, and Joseph Komosinski, former Acting State Registrar of Vital
Statistics. For the purpose of this decision, they are being referred to
collectively as the "State.")
Both parties moved for summary judgment. The trial court, Superior Court Judge
Linda Feinberg, entered summary judgment in the State's favor and dismissed the
complaint. Plaintiffs appealed. In a split decision, the Appellate Division
affirmed. Judge Stephen Skillman wrote the majority opinion in which he
concluded that New Jersey's
marriage statutes do not contravene the substantive due process and equal
protection guarantees of Article I, Paragraph 1 of the State Constitution. He
determined that only the Legislature could authorize same-sex marriages.
Appellate Division Judge Anthony Parrillo filed a concurring opinion. Although
joining Judge Skillman's opinion, Judge Parrillo added his view of the twofold
nature of the relief sought by plaintiffs -- the right to marry and the rights
of marriage. He submitted that it was the Legislature's role to weigh the
benefits and costs flowing from a profound change in the meaning of marriage.
Appellate Division Judge Donald Collester, Jr., dissented. He concluded that the
substantive due process and equal protection guarantees of Article I, Paragraph
1 obligate the State to afford same-sex couples the right to marry on terms
equal to those afforded opposite-sex couples.
The matter came before the Court as an appeal as of right by virtue of the
dissent in the Appellate Division.
HELD: Denying committed same-sex
couples the financial and social benefits and privileges given to their married
heterosexual counterparts bears no substantial relationship to a legitimate
governmental purpose. The Court holds that under the equal protection guarantee
of Article I, Paragraph 1 of the New Jersey Constitution, committed samesex
couples must be afforded on equal terms the same rights and benefits enjoyed by
opposite-sex couples under the civil marriage statutes. The name to be given to
the statutory scheme that provides full rights and benefits to samesex couples,
whether marriage or some other term, is a matter left to the democratic process.
1. As this case presents no factual dispute, the Court addresses solely
questions of law. The Court perceives plaintiffs' equal protection claim to have
two components: whether committed same-sex couples have a constitutional right
to the benefits and privileges afforded to married heterosexual couples, and, if
so, whether they have a constitutional right to have their relationship
recognized by the name of marriage. (pp. 19-21)
2. In attempting to discern the substantive rights that are "fundamental" under
Article I, Paragraph 1, of the State Constitution, the Court has followed the
general standard adopted by the United States Supreme Court in construing the
Due Process Clause of the Fourteenth Amendment. First, the asserted fundamental
liberty interest must be
clearly identified. In this case, the identified right is the right of same-sex
couples to marry. Second, the liberty interest in same-sex marriage must be
objectively and deeply rooted in the traditions, history, and conscience of the
people of this State. (pp. 21-25)
3. New Jersey's
marriage laws, which were first enacted in 1912, limit marriage to heterosexual
couples. The recently enacted Domestic Partnership Act explicitly acknowledges
that same-sex couples cannot marry. Although today there is a national debate
over whether same-sex marriages should be authorized by the states, the framers
of the 1947 New Jersey Constitution could not have imagined that the liberty
right protected by Article I, Paragraph 1 embraced same-sex marriage. (pp.
25-28)
4. Times and attitudes have changed. There has been a developing understanding
that discrimination against gays and lesbians is no longer acceptable in this
State. On the federal level, the United States Supreme Court has struck down
laws that have unconstitutionally targeted gays and lesbians for disparate
treatment. Although plaintiffs rely
on the federal cases to support the argument that they have a fundamental right
to marry under our State Constitution, those cases fall far short of
establishing a fundamental right to same-sex marriage "deeply rooted in the
traditions, history, and conscience of the people of this State." 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, the Court cannot find that the right to
same-sex marriage is a fundamental right under our constitution. (pp. 28-33)
5. The Court has construed the expansive language of Article I, Paragraph 1 to
embrace the fundamental guarantee of equal protection, thereby requiring the
Court to determine whether the State's marriage laws permissibly distinguish
between same-sex and heterosexual couples. The test the Court has applied to
equal protection claims is a flexible one that includes three factors: 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.
(pp. 34-36)
6. In conducting its equal protection analysis, the Court discerns two distinct
issues. The first is whether same-sex couples have the right to the statutory
benefits and privileges conferred on heterosexual married couples. Assuming that
right, the next issue is whether committed same-sex partners have a
constitutional right to define their relationship by the name of marriage. (p.
37)
7. New Jersey's
courts and its Legislature have been at the forefront of combating sexual
orientation discrimination and advancing equality of treatment toward gays and
lesbians. In 1992, through an amendment to the Law Against Discrimination (LAD),
New Jersey
became the fifth state to prohibit discrimination on the basis of "affectional
or sexual orientation." In making sexual orientation a protected category, the
Legislature committed New Jersey
to the goal of eradicating discrimination against gays and lesbians. In 2004,
the Legislature added "domestic partnership status" to the categories protected
by the LAD. (pp. 37-40)
8. Discrimination on the basis of sexual orientation is also outlawed in our
criminal law and public contracts law. The Legislature, moreover, created the
New Jersey Human Relations Council to promote educational programs aimed at
reducing bias and bias-related acts, identifying sexual orientation as a
protected category. In 2004, the Legislature passed the Domestic Partnership
Act, which confers certain benefits and rights on same-sex partners
who enter into a partnership under the Act. (pp. 40-42)
9. The Domestic Partnership Act has failed to bridge the inequality gap between
committed same-sex couples and married opposite-sex couples. Significantly, the
economic and financial inequities that are borne by same-sex domestic partners
are also borne by their children. Further, even though same-sex couples are
provided fewer benefits and rights by the Act, they are subject to more
stringent requirements to enter into a domestic partnership than opposite-sex
couples entering a marriage. (pp. 43-48)
10. At this point, the Court does not consider whether committed same-sex
couples should be allowed to marry, but only whether those couples are entitled
to the same rights and benefits afforded to married heterosexual couples. Cast
in that light, the issue is not about the transformation of the traditional
definition of marriage, but about the unequal dispensation of benefits and
privileges to one of two similarly situated classes of people. (p. 48)
11. The State does not argue that limiting marriage to the union of a man and a
woman is needed to encourage procreation or to create the optimal living
environment for children. Other than sustaining the traditional definition of
marriage, which is not implicated in this discussion, the State has not
articulated any legitimate public need for depriving committed same-sex couples
of the host of benefits and privileges that are afforded to married heterosexual
couples. There is, on the one hand, no rational basis for giving gays and
lesbians full civil rights as individuals while, on the other hand, giving them
an incomplete set of rights when they enter into committed samesex
relationships. To the extent that families are strengthened by encouraging
monogamous relationships, whether heterosexual or homosexual, the Court cannot
discern a public need that would justify the legal disabilities that now afflict
same-sex domestic partnerships. (pp. 48-51)
12. In arguing to uphold the system of disparate treatment that disfavors
same-sex couples, the State offers as a justification the interest in uniformity
with other states' laws. Our current laws concerning same-sex couples are more
in line with those of Vermont,
Massachusetts, and
Connecticut than the majority of other states. Equality
of treatment is a dominant theme of our laws and a central guarantee of our
State Constitution. This is fitting for a state with so diverse a population.
Article I, Paragraph 1 protects not only the rights of the majority but also the
rights of the disfavored and the disadvantaged; they too are promised a fair
opportunity for "pursuing and obtaining safety and happiness." (pp. 51-56)
13. The equal protection requirement of Article I, Paragraph 1 leaves the
Legislature with two apparent options. The Legislature could simply amend the
marriage statutes to include same-sex couples, or it could create a separate
statutory structure, such as a civil union. Because this State has no
experience with a civil union construct, the Court will not speculate that
identical schemes offering equal rights and benefits would create a distinction
that would offend Article I, Paragraph 1, and will not presume that a difference
in name is of constitutional magnitude. New language is developing to describe
new social and familial relationships, and in time will find a place in our
common vocabulary. However 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. (pp. 57-63)
14. In the last two centuries, the institution of marriage has reflected
society's changing social mores and values. Legislatures, along with courts,
have played a major role in ushering marriage into the modern era of equality of
partners. 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. Plaintiffs' quest does not end here. They must now appeal to
their fellow citizens whose voices are heard through their popularly elected
representatives. (pp. 63-64)
15. To bring the State into compliance with Article I, Paragraph 1 so that
plaintiffs can exercise their full constitutional rights, the Legislature must
either amend the marriage statutes or enact an appropriate statutory structure
within 180 days of the date of this decision. (p. 65)
The judgment of the Appellate Division is
MODIFIED and, as MODIFIED, is AFFIRMED.
CHIEF JUSTICE PORITZ has filed a
separate CONCURRING and DISSENTING
opinion, in which JUSTICES LONG
and ZAZZALI join. She concurs in
the finding of the majority that denying the rights and benefits to committed
same-sex couples that are statutorily given to their heterosexual counterparts
violates the equal protection guarantee of Article I, Paragraph 1 of the New
Jersey Constitution. She dissents from the majority's
distinguishing those rights and benefits from the right to the title of
marriage. She also dissents from the majority's conclusion that there is no
fundamental due process right to same-sex marriage encompassed within the
concept of "liberty" guaranteed by Article I, Paragraph 1. She is of the view
that persons who exercise their autonomous liberty
interest to choose same-sex partners have a fundamental right to participate in
a state-sanctioned civil marriage.
JUSTICES LaVECCHIA, WALLACE, and RIVERA-SOTO
join in JUSTICE ALBIN's opinion. CHIEF JUSTICE PORITZ filed a separate
concurring and dissenting opinion in which JUSTICES LONG and ZAZZALI join.
The full opinion can be read at
http://www.judiciary.state.nj.us/opinions/supreme/a-68-05.pdf
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