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.