Edward R. Weinstein, Esq.Edward R. Weinstein, Esq.

In New Jersey, Do Same-Sex Couples Have The Fundamental Right To Marry?

As a New Jersey family attorney, I am constantly monitoring the development of same-sex couples and their “legal status” here in my home state. 

Last year, New Jersey became the 14th state to allow gay marriage.  As a New Jersey family lawyer, this is obviously a huge development in N.J. family law and gay rights.  Let’s explore.

As I recently wrote in my piece, “Is There A Constitutional Right To Marry?” the 14th amendment to the United States Constitution states that no state shall deprive any person of life, liberty or property without due process of law. However, the fundamental right for same-sex couples to marry only exists in some of our nation’s states. Marriage is a constitutional right that the government should not be able to deprive any U.S. citizen of, end of story. Yet, still thousands of same-sex couples are being denied this basic right on a daily basis.

One of the first major cases that made it all the way to the Supreme Court of New Jersey was Lewis v. Harris, 188 N.J. 415 (N.J. 2006). The plaintiffs in Lewis were seven same-sex couples who had been in serious relationships for over ten years. Each couples sought the right to legally marry their partners so that they too could enjoy financial and social benefits that heterosexual marriage affords. All seven couples were denied marriage licenses throughout the state of New Jersey and thus the lawsuit unfolded.

The New Jersey Supreme Court held that same-sex couples did not have a right to marry in New Jersey. The Court concluded that “despite the rich diversity of New Jersey, the tolerance and goodness of its people, and the many recent advances by gays and lesbians toward achieving social acceptance and equality under the law, the Court cannot find that a right to same-sex marriage is so deeply rooted in the traditions, history and conscience of the people of New Jersey that it ranks as a fundamental right. 

However, it did state that the “unequal dispensation of rights and benefits to committed same-sex partners” could not be tolerated under the state’s constitution. Since New Jersey prides itself on equal protection to all of its residents, the court recognized the need for change so that homosexual couples were not at such an unfair disadvantage. The government could not prove that it had a legitimate governmental purpose in denying to gay couples the financial and social benefits given to straight couples. Although the right to same-sex marriage was not deemed a fundamental right at this point in time, Lewis v. Harris was a landmark case in New Jersey’s gay rights movement.

All was quite in the New Jersey courts on this red- hot issue until 2013, when the Superior Court of New Jersey, Law Division, Mercer County decided the infamous case of Garden State Equal. v. Dow, 434 N.J. Super. 163 (Law Div. Sept. 27, 2013). Similar to Lewis v. Harris, the plaintiffs in Garden State Equality were same-sex couples seeking the constitutional right to civil marriage in New Jersey. Many of the plaintiffs who had lost on this issue in Lewis were also plaintiffs in Garden State Equality; however, this time the courts were on their side.

The court read from the New Jersey Constitution, quoting that it “guarantees that every statutory right and benefit conferred to heterosexual couples through civil marriage must be made available to committed same-sex couples.” The court looked to N.J. Const. art. I, para. 1, and held that the state must permit any and all same-sex couples, who otherwise satisfy the requirements for civil marriage, to marry in New Jersey.

This case, decided at the same time the federal case of U.S. v. Windsor striking down Section 3 of Defense of Marriage Act, made history in New Jersey. For the first time, same-sex couples were being treated equally in the eyes of the law. Hundreds of same-sex couples that qualified for civil marriage in the state were finally wed.

If you or a loved one is involved in a same sex relationship and would like to know your rights, please do not hesitate to contact my New Jersey family law firm.  Thank you.