New Jersey Court
By LAURA MANSNERUS,
NYTimes on the Web, October 25, 2006
The State Supreme Court in New Jersey
said today that same-sex couples are entitled to “the same rights and benefits
enjoyed by opposite-sex couples under the civil marriage statutes.”
But the court, in its 4-3 ruling, said that whether that status should be called
marriage, or something else, “is a matter left to the democratic process.”
The court’s eagerly awaited decision found that an arrangement akin to that in
Vermont, which authorizes civil unions between same-sex couples but does not
call them marriages, would satisfy the New Jersey constitution’s guarantee of
equal protection under the law.
The court gave the legislature a six-month deadline to enact the necessary
legislation to provide for same-sex unions with rights equal to those of married
The decision leaves Massachusetts as the only state to authorize same-sex
marriages as such. Since the Massachusetts Supreme Court held in 2003 that
that full marriage rights were required for all couples under that state’s
constitution, gay-rights advocates have suffered a string of defeats in other
states. The Court of Appeals of New York rejected a similar argument in
According to the 90-page description of their ruling published by the court
today, the justices acknowledged that “times and attitudes have changed.”
“There has been a developing understanding that discrimination against gays and
lesbians is no longer acceptable in this state,” they wrote.
But the justices wrote that their mission in this case was a narrow one.
“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,” the court
“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.”
The justices went on to say that this case and other federal cases cited by the
plaintiffs “fall far short” of establishing a fundamental right to marriage,
which is an institution the court termed “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,” the
But the court also said that denying 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.”
Chief Justice Deborah Poritz, who is retiring from the New Jersey high court
today, said the majority didn’t go far enough, and that gay couples have the
"fundamental right to participate in a state-sanctioned civil marriage,"
according to Bloomberg News.
She and two other justices concurred in part and dissented in part with the
majority opinion written by Justice Barry Albin.
Courts in many other states have rejected similar lawsuits by same-sex couples,
ruling, as the Court of Appeals of New York did in July, that only the
legislature can define marriage or redefine it to include same-sex unions.
No state legislature has done so. The California legislature came closest,
passing a bill in 2005 that would have redefined marriage as “between persons,”
permitting same-sex couples to marry, but the bill was vetoed by Governor Arnold
To the contrary, nineteen states have adopted constitutional amendments
explicitly banning same-sex marriage. Most others have statutory bans, but New
Jersey and four other states have neither.
New Jersey is one of several states that recognize domestic partnerships between
unmarried people irrespective of sex, which afford limited rights and benefits;
Vermont and Connecticut authorize civil unions, which afford more legal
In part because the New Jersey Supreme Court is known as relatively liberal and,
above all, independent, the lawsuit here garnered national attention.
The case was brought by seven gay and lesbian couples who have been together
from 14 to 35 years and who were denied marriage licenses. Five of them
The trial-level and lower appellate courts rejected their claim that the state
constitution afforded them the right to marry as heterosexual couples do.
The Appellate Division said in June 2005 that marriage between members of the
same sex was neither a fundamental right under the constitution nor one covered
by its equal- protection clause.
The state Supreme Court heard the case, known as Lewis v. Harris, on Feb.
Under New Jersey’s domestic partnership law, enacted in 2004, same-sex partners
may make critical medical decisions for one another, for example, and must be
offered the same health coverage by insurers that is offered to spouses.
The law was approved by the Legislature with little dissent, and signed by
then-Gov. James E. McGreevey — who at the time did not support fully legalized
gay marriage, even though he would resign several months later with the
statement, “I am a gay American.”
In the last few years, public opinion has become more accepting of gay marriage,
at least in New Jersey. A Rutgers-Eagleton poll of New Jersey residents
taken in June found that 50 percent said they supported allowing same-sex
couples to marry legally, while 44 percent were opposed. (The margin of
error was plus or minus 4 percentage points.) When the poll asked the same
question in 2003, 43 percent of respondents supported legal recognition for gay
marriage and 50 percent were opposed.
Still, conservative opposition has also organized, culminating in proposed
constitutional amendments on the ballot in 11 states in 2004. All were
Last summer, the New York Court of Appeals ruled in a 4-to-2 decision that it
would not depart from the state’s century-old law defining marriage as the union
of a man and a woman. Chief Judge Judith S. Kaye wrote, in a sharply
worded dissent, that “a history or tradition of discrimination — no matter how
entrenched — does not make the discrimination constitutional.”