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

Legalizing Gay Marriage In New Jersey; A Landmark In Civil Rights

Over the summer, every lawyer to notice when the United States Supreme Court decided the case of Obergefell v. Hodges, and declared state laws prohibiting marriage equality unconstitutional (i.e. legalizing gay marriage). Every divorce lawyer at my law firm took note of this case will go down as a landmark ruling advancing equality and liberty. As important as the Obergefell decision is, as a New Jersey family law and divorce attorney, I clearly recall the day that the New Jersey Supreme Court decided this issue almost ten years earlier in the 2006 case of Lewis v. Harris. While the United States Supreme Court found that a deprivation of marriage rights to same sex couples violated the liberty and equal protection provisions of the Due Process Clause of the Fourteenth Amendment, the New Jersey Supreme Court found that the same deprivation would only violate equal protection, and that same-sex marriage was not a fundamental right because it was not deeply rooted in the traditions, history, and conscience of the people of New Jersey. Regardless the Court found that Legislature had to either amend the existing marriage statutes in New Jersey or create new statutes that provided same-sex couples with equal benefits afforded to heterosexual couples, to be in accordance with the New Jersey Constitution.  

In Lewis v. Harris, seven same-sex couples sued state officials from the departments of human services, health and senior services and vital statistics for a declaration that laws banning same-sex marriage were unconstitutional in New Jersey because they violated the liberty and equal protection guarantees of the New Jersey Constitution. Even though the couples had been in long term, committed relationships for over ten years, they were denied marriages.

At the beginning of trial both parties moved for summary judgment. Summary judgment is a quick decision of a court based on briefings and affidavits where there is no dispute of material fact. The trial court granted the State’s motion and dismissed the complaint. The Appellate Division affirmed in a split decision. Writing for the majority, Judge Stephen Skillman determined New Jersey’s marriage statutes did not violate the substantive due process and equal protection guarantees of the New Jersey Constitution, and therefore only the Legislature had the power to authorize same-sex marriages. Judge Collester, Jr., dissented, and concluded that the due process and equal protection clauses of Article 1, Paragraph 1 of the New Jersey Constitution obligated the State to allow same-sex couples the right to marry in a manner equal to right given to heterosexual couples. The Supreme Court of New Jersey reviewed the appeal.

There was no dispute of fact in Lewis v. Harris, so the Court focused solely on questions of law. The issue before the court was two-fold: whether committed same-sex couples have a constitutional right to the benefits and privileges afforded to married heterosexual couples, and if they do so, whether they have a constitutionally protected right to have their relationship recognized by the name of marriage. The Court stated that in order for a right to be fundamental, the claimed fundamental liberty must be objectively and deeply rooted in the traditions, history, and conscience of the people of this State.

Both our Federal and State constitutions recognize marriage as a fundamental right. However, while this right is fundamental, it is still subject to reasonable state regulation. The question presented to the Supreme Court did not concern the broad, abstract right to marry, but rather the right of same-sex couples to marry.

New Jersey’s civil marriage statutes, N.J.S.A. 37:1-1 to 37:2-41, where enacted in 1912 to limit marriage to heterosexual couples. The limitation is clear from the deliberate use of “husband” and “wife” in the language. The Court found that even though there is a nationwide debate over whether same-sex marriage should be authorized by statute, the framers of the 1947 New Jersey Constitution and the drafters of the marriage statutes did not believe that the liberty right guaranteed by Article 1, Paragraph 1, of the New Jersey Constitution included the right to marry someone of the same-sex. Time has brought progress to New Jersey, and there has been a developing understanding that discrimination aimed at gays and lesbians is not acceptable in this State. There are numerous laws and court decisions prohibiting discriminatory treatment based on sexual discrimination.

The couples argued that they had a right to marry under the United States Supreme Court decisions of Romer v. Evans, and Lawrence v. Texas. In Romer, the Supreme Court declared that the amendment to the Colorado Constitution that prohibited all governmental action intended to protect homosexuals from discrimination, violated the Fourteenth Amendment’s equal protection clause because it discriminated against a single named group and was motivated by animosity toward that group. In Lawrence, the Supreme Court struck down Texas’s sodomy statute on Fourteenth Amendment due process grounds. The Court found that the law made it illegal for homosexuals “to engage in certain intimate sexual conduct,” and held that the liberty protected by the Due Process Clause prevented Texas from controlling the destiny of homosexuals by making their private sexual conduct a crime. In Lewis v. Harris, the New Jersey Supreme Court found that while these cases advanced the rights of homosexuals, they did not establish that the right to same-sex marriage was deeply rooted in the traditions, history, and conscience of the people of New Jersey. The opinion in Lawrence specifically noted that the case did not cover whether government must recognize same-sex marriage.

The couples further relied on the United States Supreme Court case of Loving v. Virginia, where the Court held that Virginia’s statutes that prohibited and criminalized interracial marriages, violated the Due Process and Equal Protection clauses of the Fourteenth Amendment. There the Supreme Court reaffirmed that marriage was a fundamental right, and stated that the central purpose of the Fourteenth Amendment was to eliminate racial discrimination. Therefore, the New Jersey Supreme Court held that it could not find support that there was a fundamental right to same-sex marriage under the constitution. The court noted that that determining whether a claimed right is fundamental requires caution and foresight. The court must exercise the utmost care before finding new rights, which may place important societal issues beyond public debate. As the Justices for all of New Jersey’s citizens, the court must be careful not to impose their personal value system on eight-and-one-half million people. To do so would circumvent the democratic process. Nevertheless, the Court stated it would never abandon its responsibility to safeguard the fundamental rights of all the citizens, even the most alienated, disfavored, or politically insular.

After determining that the right to same-sex marriage was not so deeply rooted in the traditions, history, and conscience of the people of New Jersey, the court examined whether the laws that denied same-sex couples the same right to marriage given to heterosexual couples violated the equal protection doctrine of the State Constitution. Article 1, Paragraph 1 of the New Jersey Constitution, states every person has the unalienable rights to enjoy life, liberty, and property, and to pursue happiness. While the State Constitution does not explicitly state that every person is entitled to the equal protection of the laws, the Supreme Court of New Jersey has construed the broad language to include the same guarantee found in the Fourteenth Amendment of the United States Constitution.

The couples argued that the States marriage laws deprived them of the benefits available to heterosexual couples through marriage. In New Jersey, when a law does not apply equally to similarly situated people, equal protection requires that the law, in distinguishing between the two classes of people, bear a substantial relationship to a legitimate governmental purpose. The test for equal protection claims involves weighing three factors: the character of the right claimed to be deprived, the extent that the law restricts that right, and the publics need for the same restriction. As such the more personal the right, the greater the public need must be to justify governmental discrimination.

Even though the Domestic Partnership Act provide same-sex couple with many important rights, it does not provide all the rights afforded to married heterosexual couples such as survivor benefits, tax deductions, realty transfer fee exemptions, and fewer workplace protections. To this end, the Court reasoned that the issue is not about changing the traditional definition of marriage, but rather about the unequal distribution of benefits and privileges to similarly situated classes of people. Therefore the Court was left to determine whether there was a public need to deny same-sex partners the benefits and privileges available to heterosexual couples.

The Court found that other than sustaining the traditional definition of marriage, which is not altered by the decision, the State failed to state any legitimate public need for depriving same-sex couples the benefits and privileges given to heterosexual couples. Article 1, Paragraph 1, does not only protect the rights of the majority, it also protects the rights of the disfavored and the disadvantaged. Every citizen is promised a fair opportunity of pursuing and obtaining safety and happiness. Therefore, the Court held that committed same-sex couples must be given the same rights and benefits enjoyed by married heterosexual couples. The Court gave the Legislature two options. The Legislature could either amend the marriage statues to include same-sex couples, or create a separate statutory structure, such as a civil unions in Connecticut and Vermont within 180 days of the decision.

I am proud to say that my law firm applauds this celebration of civil rights in the United States.  For any further information, please never hesitate to contact my office.  Thank you.