Wednesday, October 25, 2006

New Jersey Supreme Court Rules In Favor Of Same-Sex Marriages

The New Jersey Supreme Court, without dissent, has ruled today on equal protection grounds that the legislature must either amend the state's marriage law to recognize same-sex marriages or confer a similar benefit in the form of civil unions. In Lewis v. Harris, the Court has given the legislature 180 days to bring the state's marriage laws into line with the state's constitution. It is important to point out that, unlike other states where the issue has been considered by the courts, such as New York and Washington, New Jersey did not have a state marriage law defining marriage as between one man and one woman, a so-called Defense of Marriage Act.

The New Jersey court is following a path similar to that of the Massachusetts Supreme Court a few years ago in allowing the legislature time to correct the law through legislative action; however, the Massachusetts court, unlike New Jersey's, has determined that recognition of civil unions alone will satisfy the state's constitution. In this respect it is similar to an earlier ruling by the Vermont Supreme Court allowing marriage equality through civil unions for same-sex couples.

In this landmark ruling, the New Jersey Supreme Court held that the state's equal protection guarantee prohibits the state from discriminating against same-sex relationships. Although the court found that "no fundamental right to same-sex marriage exists", the "unequal dispensation of rights and benefits to committed same-sex partners [could] no longer be tolerated under [New Jersey's] state constitution." To achieve equal protection, the court ruled:

To comply with this constitutional mandate, 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. We will not presume that a separate statutory scheme, which uses a title other than marriage, contravenes equal protection principles, so long as the rights and benefits of civil marriage are made equally available to same-sex couples. The name to be given to the statutory scheme that provides full rights and benefits to same sex couples, whether marriage or some other term, is a matter left to the democratic process.

Although the court determined that the right to marry is a fundamental right, it concluded that it was not a right that historically had been recognized for same-sex couples as it had traditionally been recognized for opposite-sex couples. In a concurring and dissenting opinion, three of the court's seven justices disagreed with the majority opinion and argued that a person's due process rights are also denied if he or she is denied the opportunity to participate in a state-sanctioned marriage ceremony, in addition to the equal protection claim.

Today's ruling will no doubt bring greater attention to this issue in this year's election. Gay marriage amendments are on the ballot in eight states this year, including Arizona, Colorado, Idaho, South Carolina, South Dakota, Tennessee, Virginia and Wisconsin. The issue could impact the outcome of control of the U.S. Senate. Both Virginia and Tennessee have closely contested races where the religious right vote could make the difference for the Republican candidates, Sen. George Allen (R) and Rep. Bob Corker (R). The issue is being raised in both congressional and state legislative issues by Republican candidates in Indiana, although there is no ballot initiative. Indiana could have such an issue on the ballot in 2008, however, if the legislature approves the pending SJR-7 constitutional amendment, which has already been approved once by the legislature.


Anonymous said...

This couldn't come at a more oportune time. Thank you, AI, for the update.

Anonymous said...

The New Jersey Supreme Court just ruled in the marriage case. The majority ruled that all the legal protections of marriage must be given to same-sex couples. The legislature is given 180 days either to amend the marriage statutes or to create some other system to give same-sex couples the same legal rights under state law that heterosexuals have (as Vermont, Connecticut and California do). Three of the seven judges would have ruled that same-sex couples must be allowed to marry outright. There were no dissents.

Here's the decision:


Matt Coles
American Civil Liberties Union Foundation
LGBT & AIDS Project

Support the ACLU's LGBT Rights Work

Anonymous said...

Thank you VERY much for the link...good reading tonight enroute to the Amendment Forum...7-9 p.m., St. Luke's Church, 100 W. 86th St.

Take that, Pat Bauer!

Chris Douglas said...

Unfortunately, this is no time to gloat. I fear this decision, rendered but days before the election, will further inflame the forces of Constitutional amendment in Indiana.

Anonymous said...

Chris Douglas is right. This is definitely a gift to those in Indiana who support the gay marriage amendment. The Hoosier public absolutely does not want gay couples recognized as "married." To get around this stong public opposition, the opponents of the marriage amendment keep telling the public that no amendment is needed, that gay marriages are banned in Indiana without any such amendment. (Remember Bauer's position a few days ago?) News like this will make clear that a ban on "gay marriage" is not a certainty and that an amendment actually IS needed to maintain the current definition of marriage. Public support for that action will be stronger, not weaker.

With all of this in mind, I will re-pose a question that nobody seems willing to answer. If gay marriages are a RIGHT, then why aren't the same rights applied to poligamy? Or pedophilia? Or human-animal relationships? It's not my intent to be inflamatory, but I keep reading posts from those who oppose the marriage amendment and I really can find no explanation that wouldn't apply equally to all of these situations as well.

Anonymous said...

Someone else is going to have to respond to 4:48. I have neither the time nor the patience.

Chris Douglas said...

Anon 4:48, our RIGHT as Americans, indeed as human beings, is to equal protection of the laws and to religious freedom.

If the state chooses to recognize marriage and confer upon heterosexual loving couples the protections of property and person, then the state must do the same for us, for we are loving couples as capable of heartache and in as much need of protection as you. It is a matter of fairness and justice. This is the equal protection argument.

If the state wishes to respect the sanctity of marriages in one religion (and it needn't), then it should respect the sanctity of marriages in others religions. Many churches and synagogues sanctify same sex relationships as marriage, and many denominations even today are debating the matter. The religious right seeks to end-run these internal debates and nullify the sanctities of more progressive churches by summoning the power of the state to judge the religious practices of other citizens. This is the religious freedom argument.

Neither the equal protection nor the religious freedom argument are vacuous; instead, they go directly to the core of what we mean in America when we speak of freedom, equal protection, and the protection against the establishment of Religion. In my opinion, if you can't grasp these arguments, you may succeed as a religious person, but fail as an American citizen.

(A two-part answer)

Chris Douglas said...

(Part II!)

But beyond that argument of equal protection and religious freedom, which stands on its own, IS the question of marriage as a fundamental right. The UN Charter of 1948 established this very clearly in response to the practices of the previous decade in which a key element of Nazi oppression was to deny Jews the protections of legal marriage. The Nazi's have not been alone in human history in using the proscription on marriage as a way of denying the humanity of a minority.

So the UN Charter of 1948, written almost certainly mainly under American Influence reads: Article 16: Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.
(2) Marriage shall be entered into only with the free and full consent of the intending spouses.
(3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

You who oppose same sex marriage seek to drive gays from the fundamental unit of protection society offers.

Regarding marriage to children and animals, neither of those do we in America consider to have the power to consent, as the second paragraph of the UN Charter (a glory of American influence) requires.

Regarding polygamy, I have no answer, except to say that the same arguments you make were made against inter-racial marriage. Societies all around the globe practice polygamy as a common, even biblical, definition of marriage. It is unfair to deny loving gay couples,just as with loving inter-racial couples, the equal protection of the law based on a question that has nothing to do with us. Why do we have to make an argument for or against polygamy any more than you do?

Wilson46201 said...

Let those who desire polygamy vigorously advocate that issue - interjecting polygamy into a discussion of same-sex marriage is like bringing polygamy into a discussion of oil lease rights or radio spectrum regulation. It's irrelevant except as a diversion and a smokescreen to obfuscate the issues ...

Wilson46201 said...

fwiw, in 2004 the GOP candidate running against Congresslady Julia Carson used the man-marries-dog argument against gays. I reminded him that I'm fond of my dogs but I love my boyfriend! There's a difference!

Anonymous said...

The earlier genius fails to recognize what the New Jersey Court did.

Their constitution, in this regard, is remarkably similar to Indiana's and the U.S. Constitution.

It's basically a violation of the equal protection clause. Plainly and simply.

The NJ decision did not attempt to tell the legislature that had to recognize gay marriages. They just have to ensure through law, that gay unions are not disadvantaged.

I just read the decision, and it's brilliant.

Anonymous said...

Good legal perspective, Gary, but:

Having, or not having, a statewide "Defense of Marriage" law, as Indiana does, isn't the be-all-end-all for these kinds of decisions.

The Indiana Appeals COurt, in its ruling, danced aroun d that. The NJ ruling was, granted, a little easier because they didn't have a DOM bill on the books.

But most state constitutions, including NJ's and ours, have clauses similar to the federal constitution's equal protection clause.

That should be sufficient. Alas, it isn't usually...

Times are a-changin'.

Anonymous said...

This is Anonymous 4:48. I can't respond in detail now (and am anxious to read the comments to Gary's second post on this issue), but I did want to thank Chris Douglas for his thoughtful response(s). While I disagree with many of your comments, your tone and thoughtfulness were much better than is typical for this discussion (on EITHER side of the debate). Thank you.

Three quick replies:

1) I withdraw the pedophelia and animal parts of my question. I do think those are questions that will come up regularly as this debate proceeds; but for purposes of this exchange, I think the intended points can be made without drawing in those potentially inflamatory directions. Indeed, I almost took them out before posting at 4:48 and wish now that I had. I certainly do not want to equate these various sexual activities, but I would suggest that finding some clear distinction in the rationale for each is a challenge for some of the people in this debate.

2) The inability to answer the polygamy question will, in my estimation, prove critical to this debate. As has been said on this blog many previous times, the public sentiment is in clear opposition to gay marriage. Even many of those who oppose the "marriage amendment" (Bauer for example) insist that they also oppose gay marriage. If your arguments for gay marriage or against the marriage amendment cannot distinguish between this issue and polygamy, then your case is absolutely lost in the court of public opinion. And if the Court sides with you, public opinion will push the other direction (a Constitutional Amendment) even that much faster.

3) While UN document have no authority over the sovereignity of this or any other nation (and certainly has no place in determining the intent of US laws), I would make the important note that the document you cite discusses marriage of "men and women." Now, I know you will argue that there are options within that phrase, but that is precisely the point. We now have a small minority in our society who are trying awfully hard to redefine common language. I see nothing in what you cite to suggest that the authors had even contemplated anything other than marriage between one man and one woman. Suggesting otherwise is about as well grounded as suggesting that Abe Lincoln's comments also supported gay marriage, as has been suggested right here on this blog. There is just absolutely no basis for that revisionist history. And it is this offense to common sensibilities that is driving much of the opposition to your position.

Chris Douglas said...

Anon 4:48, our arguments, as I said, rest entirely on equal protection of the law and a right to religious freedom. The others items merely respond to question you raise, not to our rights as citizens.

In my opinion, you must be willing to speak up and defend our rights to equal protection of the law and religious freedom.

Your questions do not treat us as human beings, but as concepts.

As candidate for Sheriff Steve Davis said about offering protections to gay and lesbian citizens, "This is America. This is about Freedom."

If you are running for office, you must caste off your prejudices and whatever your faith perspective may be, and as a matter of social justice defend the Constitution. This was the charge to the Court justices. You have no less responsibility merely because you wish to be in the legislature and vested with power.

I suggest you read the New Jersey opinion thoroughly and then address our arguments for equal protection. Does equal protection of law hold no value for you as an aspirant to office?

Anonymous said...

The difficulty with using the equal protection clause of the Indiana Constitution to hold same-sex marriage as legal-- is that the Constitutional Amendment SPECIFICALLY precludes that argument. "Neither the Indiana Constitution nor any other law may be construed to grant the legal benefits of marriage ..."

It is all-inclusive and air-tight-- unti someone starts poking holes into the phrase-- legal incidents of marriage.


Anonymous said...

Well, Lafblog, the proposed Indiana Amendment is specifically designed to undo the original Equal Protection Clause. The supporters are not stupid.

Ultimately, that's where we have to hang our hats in this debate, state-by-state and nationally. Most state constitutions mirrors the US Constitution, at least with regard to the Bill of Rights. Equal Protection is granted to all. It's really that simple.

The whole polygamy argument is subtrafuge. Utah can have its special definitions. I really don't care.

Just don't deny me and my partner the same benefits my parents have, just because they have a document.
Last night at the Amendment Forum, Rep. Orentlicher was very fearful that Part B of this proposed amendment might undo the (expensive) legal documents many of us have prepared for those unfortunate eventualities: death, health care, assets, etc.

The unintended consequence here, if carried to the Limnbaugh far right extreme, is that the entire definition of "marriage" may be deregulated.

Kinda like the airlines.

And we all know THAT worked well.

Do not be distratced with the sex-with-animals, sex-with-multiple spouses argument. It is irrelevant, and the far right knows that.

Anonymous said...

Sorry, 12:02, it is not irrelevant. How do ANY of your "equal protection" arguments not apply to polygamy, for example? Read every one of these posts again, but pretend for a moment that the issue at hand IS polygamy. What's the difference? What has been said that would NOT incorporate polygamy?

Chris Douglas said...

Anon 7:50, you are really making me quite angry. You expect us to answer a question about polygamy, which is completely irrelevant to us, but you refuse to deal with consequences of equal protection, which is the relevant issue for citizens of the United States.

It's like my complaining about your glasses and demanding a response, when your glasses have nothing to do with the issue at hand.

So let's deal with Polygamy, which is a peripheral issue. Perhaps delving into that issue, one can understand the differences better.

Why don't you specify your objections to polygamy, which I don't defend, but which is a common form of marriage around the globe and which is biblical?

And why don't you surrender your anonymity, which is unbecoming, rendering you irresponsible for your arguments? It's amazing what words can be tossed about without concern for one's personal reputation.

You aggress only, requiring answers, but offering none of your own. Do you object to the statement that some one in 20 have same sex orientations which are fairly immutable? Do you object to the statement that one in 20 of the population have as much right as you to seek stability in family, however it may necessarily be constructed for our happiness, so long as we do not trespass on the rights of others as you do on ours?

Anonymous said...

Think about this.
What happen to the basic laws of nature? Adam and Steve...Mary and Eve together can not reproduce themselves. The end of mankinds existence in the world.

Chris Douglas said...

Anon, you will note that the science indicates that with each successive male born from a woman's womb, the odds of that male being gay increase. It is thought that the presence and mixture of a male's blood in a women's womb effects the hormone's of the womb, such that the hormones effect subsequent births differently.

(Since you're reference is to Adam and Eve is biblical, maybe you can explain why God is producing lesbians and gays....)

Gays are not ever going to predominate, so the idea that mankind will not be able to reproduce is absurd.