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.

14 comments:

  1. Anonymous2:34 PM GMT-5

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

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  2. Anonymous2:42 PM GMT-5

    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: http://www.judiciary.state.nj.us/opinions/supreme/a-68-05.pdf

    --Matt


    Matt Coles
    Director
    American Civil Liberties Union Foundation
    LGBT & AIDS Project
    www.aclu.org/lgbt
    www.aclu.org/getequal

    Support the ACLU's LGBT Rights Work
    www.aclu.org/lgbtdonate

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  3. Anonymous3:29 PM GMT-5

    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!

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  4. Anonymous3:48 PM GMT-5

    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.

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  5. Anonymous3:51 PM GMT-5

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

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  6. 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 ...

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  7. 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!

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  8. 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.

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  9. Anonymous6:42 AM GMT-5

    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'.

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  10. Anonymous7:42 AM GMT-5

    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.

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  11. 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.

    Thoughts??

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  12. 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.

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  13. Anonymous6:50 PM GMT-5

    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?

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  14. Anonymous8:21 AM GMT-5

    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.

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