Roadkill Journal

The long anticipated New Jersey Supreme Court decision on “Gay Marriage” was handed down yesterday, and the winner is… Equality. One of many accounts:

“Gay Couples Can Get Marital Rights, N.J. Court Says”

http://www.kirotv.com/family/10151332/detail.html

For the full decision – 90 pages worth – go here:

http://ad.doubleclick.net/clk;7006713;8704162;d?http://news.findlaw.com/hdocs/docs/glrts/lewisharris102506opn.pdf

The first three pages are a syllabus prepared by the Clerk as a public service. I am including it at the end of this post. It’s a worthy read. I’m taking the liberty of abbreviating their work.

As for the decision: Bravo!

First off, contrary to the slant applied to this decision by the right-leaning MSM, the Court did not find gays have a “right to marry.” Rather, the Court expanded on Appellate Division Judge Anthony Parrillo’s concurrent filing in the appellate action. Judge Parrillo elucidated “the twofold nature of the relief sought by plaintiffs -- the right to marry and the rights of marriage. He submitted that it was the Legislature's role to weigh the benefits and costs flowing from a profound change in the meaning of marriage.”

Thusly the Court held the “plaintiffs' equal protection claim to have two components: whether committed same-sex couples have a constitutional right to the benefits and privileges afforded to married heterosexual couples, and, if so, whether they have a constitutional right to have their relationship recognized by the name of marriage.”

The decision goes on to cite legal precedents for equal protections and against similar discrimination, and noted the existence of inadequate remedies.

Following this logic, the Court did not consider whether committed same-sex couples should be allowed to marry, but only whether those couples are entitled to the same rights and benefits afforded to married heterosexual couples. Cast in that light, the issue is not about the transformation of the traditional definition of marriage, but about the unequal dispensation of benefits and privileges to one of two similarly situated classes of people.”

The Court noted the State raised significant issues pertaining to preserving the institution of heterosexual marriage but concluded that in recognizing the separateness of the two issues the institutional arguments became collateral.

Thusly, “To bring the State into compliance with Article I, Paragraph 1 so that plaintiffs can exercise their full constitutional rights, the Legislature must either amend the marriage statutes or enact an appropriate statutory structure within 180 days of the date of this decision.”

Bravo!



Hopefully, this ruling will take the wind out of Republican hopes that a Court ruling for “gay marriage” would help to bring the bigots slithering out from under their rocks in record numbers on November 7th. Hopefully, by dropping this matter back on the legislature, the ruling will de-energize arguments that an activist court is pursuing an agenda.

Hopefully, it will pull a few more bigot’s fangs… The bottom line here is… The bottom line. There are still all too many people in this Nation who adhere to yesterday’s barbarisms, and seek to wield power over others to enforce their sick attitudes. The best weapon they have is the power to pauperize. Denying someone equal compensation due to a non-work related issue is vile. It’s even worse when the government becomes a defacto partner in the shagging. The more similar laws and rulings we have, the fewer opportunities the bigots will have to wreak their assaults.

If government has legitimate roles in the workplace, this is one of them.

The syllabus:

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
Mark Lewis and Dennis Winslow, et al. v. Gwendolyn L. Harris, etc., et al. (A-68-05) Argued February 15, 2006 -- Decided October 25, 2006
ALBIN, J., writing for a majority of the Court.
Plaintiffs are seven same-sex couples who have been in permanent committed relationships for more than ten years. Each seeks to marry his or her partner and to enjoy the legal, financial, and social benefits that marriage affords. After being denied marriage licenses in their respective municipalities, plaintiffs sued challenging the constitutionality of the State's marriage statutes.
In a complaint filed in the Superior Court, Law Division, plaintiffs sought a declaration that laws denying same-sex marriage violated the liberty and equal protection guarantees of Article I, Paragraph 1 of the New Jersey Constitution. They also sought injunctive relief compelling the defendant State officials to grant them marriage licenses. (The named defendants are Gwendolyn L. Harris, former Commissioner of the Department of Human Services, Clifton R. Lacy, former Commissioner of the Department of Health and Senior Services, and Joseph Komosinski, former Acting State Registrar of Vital Statistics. For the purpose of this decision, they are being referred to collectively as the "State.")
Both parties moved for summary judgment. The trial court, Superior Court Judge Linda Feinberg, entered summary judgment in the State's favor and dismissed the complaint. Plaintiffs appealed. In a split decision, the Appellate Division affirmed. Judge Stephen Skillman wrote the majority opinion in which he concluded that New Jersey's marriage statutes do not contravene the substantive due process and equal protection guarantees of Article I, Paragraph 1 of the State Constitution. He determined that only the Legislature could authorize same-sex marriages.
Appellate Division Judge Anthony Parrillo filed a concurring opinion. Although joining Judge Skillman's opinion, Judge Parrillo added his view of the twofold nature of the relief sought by plaintiffs -- the right to marry and the rights of marriage. He submitted that it was the Legislature's role to weigh the benefits and costs flowing from a profound change in the meaning of marriage.
Appellate Division Judge Donald Collester, Jr., dissented. He concluded that the substantive due process and equal protection guarantees of Article I, Paragraph 1 obligate the State to afford same-sex couples the right to marry on terms equal to those afforded opposite-sex couples.
The matter came before the Court as an appeal as of right by virtue of the dissent in the Appellate Division.
HELD: Denying committed same-sex couples the financial and social benefits and privileges given to their married heterosexual counterparts bears no substantial relationship to a legitimate governmental purpose. The Court holds that under the equal protection guarantee of Article I, Paragraph 1 of the New Jersey Constitution, committed same-sex couples must be afforded on equal terms the same rights and benefits enjoyed by opposite-sex couples under the civil marriage statutes. 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.

1. As this case presents no factual dispute, the Court addresses solely questions of law. The Court perceives plaintiffs' equal protection claim to have two components: whether committed same-sex couples have a constitutional right to the benefits and privileges afforded to married heterosexual couples, and, if so, whether they have a constitutional right to have their relationship recognized by the name of marriage. (pp. 19-21)


2. In attempting to discern the substantive rights that are "fundamental" under Article I, Paragraph 1, of the State Constitution, the Court has followed the general standard adopted by the United States Supreme Court in construing

the Due Process Clause of the Fourteenth Amendment. First, the asserted fundamental liberty interest must be clearly identified. In this case, the identified right is the right of same-sex couples to marry. Second, the liberty interest in same-sex marriage must be objectively and deeply rooted in the traditions, history, and conscience of the people of this State. (pp. 21-25)

1. New Jersey's marriage laws, which were first enacted in 1912, limit marriage to heterosexual couples. The recently enacted Domestic Partnership Act explicitly acknowledges that same-sex couples cannot marry. Although today there is a national debate over whether same-sex marriages should be authorized by the states, the framers of the 1947 New Jersey Constitution could not have imagined that the liberty right protected by Article I, Paragraph 1 embraced same-sex marriage. (pp. 25-28)


2. Times and attitudes have changed. There has been a developing understanding that discrimination against gays and lesbians is no longer acceptable in this State. On the federal level, the United States Supreme Court has struck down laws that have unconstitutionally targeted gays and lesbians for disparate treatment. Although plaintiffs rely on the federal cases to support the argument that they have a fundamental right to marry under our State Constitution, those cases fall far short of establishing a fundamental right to same-sex marriage "deeply rooted in the traditions, history, and conscience of the people of this State." Despite the rich diversity of this State, the tolerance and goodness of its people, and the many recent advances made by gays and lesbians toward achieving social acceptance and equality under the law, the Court cannot find that the right to same-sex marriage is a fundamental right under our constitution. (pp. 28-33)


3. The Court has construed the expansive language of Article I, Paragraph 1 to embrace the fundamental guarantee of equal protection, thereby requiring the Court to determine whether the State's marriage laws permissibly distinguish between same-sex and heterosexual couples. The test the Court has applied to equal protection claims is a flexible one that includes three factors: the nature of the right at stake, the extent to which the challenged statutory scheme restricts that right, and the public need for the statutory restriction. (pp. 34-3 6)


4. In conducting its equal protection analysis, the Court discerns two distinct issues. The first is whether same-sex couples have the right to the statutory benefits and privileges conferred on heterosexual married couples. Assuming that right, the next issue is whether committed same-sex partners have a constitutional right to define their relationship by the name of marriage. (p. 37)


5. New Jersey's courts and its Legislature have been at the forefront of combating sexual orientation discrimination and advancing equality of treatment toward gays and lesbians. In 1992, through an amendment to the Law Against Discrimination (LAD), New Jersey became the fifth state to prohibit discrimination on the basis of "affectional or sexual orientation." In making sexual orientation a protected category, the Legislature committed New Jersey to the goal of eradicating discrimination against gays and lesbians. In 2004, the Legislature added "domestic partnership status" to the categories protected by the LAD. (pp. 37-40)


6. Discrimination on the basis of sexual orientation is also outlawed in our criminal law and public contracts law. The Legislature, moreover, created the New Jersey Human Relations Council to promote educational programs aimed at reducing bias and bias-related acts, identifying sexual orientation as a protected category. In 2004, the Legislature passed the Domestic Partnership Act, which confers certain benefits and rights on same-sex partners who enter into a partnership under the Act. (pp. 40-42)


7. The Domestic Partnership Act has failed to bridge the inequality gap between committed same-sex couples and married opposite-sex couples. Significantly, the economic and financial inequities that are borne by same-sex domestic partners are also borne by their children. Further, even though same-sex couples are provided fewer benefits and rights by the Act, they are subject to more stringent requirements to enter into a domestic partnership than opposite-sex couples entering a marriage. (pp. 43-48)


8. At this point, the Court does not consider whether committed same-sex couples should be allowed to marry, but only whether those couples are entitled to the same rights and benefits afforded to married heterosexual couples. Cast in that light, the issue is not about the transformation of the traditional definition of marriage, but about the unequal dispensation of benefits and privileges to one of two similarly situated classes of people. (p. 48)

1. The State does not argue that limiting marriage to the union of a man and a woman is needed to encourage procreation or to create the optimal living environment for children. Other than sustaining the traditional definition of marriage, which is not implicated in this discussion, the State has not articulated any legitimate public need for depriving committed same-sex couples of the host of benefits and privileges that are afforded to married heterosexual couples. There is, on the one hand, no rational basis for giving gays and lesbians full civil rights as individuals while, on the other hand, giving them an incomplete set of rights when they enter into committed same-sex relationships. To the extent that families are strengthened by encouraging monogamous relationships, whether heterosexual or homosexual, the Court cannot discern a public need that would justify the legal disabilities that now afflict same-sex domestic partnerships. (pp. 48-51)


2. In arguing to uphold the system of disparate treatment that disfavors same-sex couples, the State offers as a justification the interest in uniformity with other states' laws. Our current laws concerning same-sex couples are more in line with those of Vermont, Massachusetts, and Connecticut than the majority of other states. Equality of treatment is a dominant theme of our laws and a central guarantee of our State Constitution. This is fitting for a state with so diverse a population. Article I, Paragraph 1 protects not only the rights of the majority but also the rights of the disfavored and the disadvantaged; they too are promised a fair opportunity for "pursuing and obtaining safety and happiness." (pp. 5 1-56)


3. The equal protection requirement of Article I, Paragraph 1 leaves the Legislature with two apparent options. The Legislature could simply amend the marriage statutes to include same-sex couples, or it could create a separate statutory structure, such as a civil union. Because this State has no experience with a civil union construct, the Court will not speculate that identical schemes offering equal rights and benefits would create a distinction that would offend Article I, Paragraph 1, and will not presume that a difference in name is of constitutional magnitude. New language is developing to describe new social and familial relationships, and in time will find a place in our common vocabulary. However the Legislature may act, same-sex couples will be free to call their relationships by the name they choose and to sanctify their relationships in religious ceremonies in houses of worship. (pp. 57-63)


4. In the last two centuries, the institution of marriage has reflected society's changing social mores and values. Legislatures, along with courts, have played a major role in ushering marriage into the modern era of equality of partners. The great engine for social change in this country has always been the democratic process. Although courts can ensure equal treatment, they cannot guarantee social acceptance, which must come through the evolving ethos of a maturing society. Plaintiffs' quest does not end here. They must now appeal to their fellow citizens whose voices are heard through their popularly elected representatives. (pp. 63-64)


5. To bring the State into compliance with Article I, Paragraph 1 so that plaintiffs can exercise their full constitutional rights, the Legislature must either amend the marriage statutes or enact an appropriate statutory structure within 180 days of the date of this decision. (p. 65)

The judgment of the Appellate Division is MODIFIED and, as MODIFIED, is AFFIRMED.
CHIEF JUSTICE PORITZ has filed a separate CONCURRING and DISSENTING opinion, in which JUSTICES LONG and ZAZZALI join. She concurs in the finding of the majority that denying the rights and benefits to committed same-sex couples that are statutorily given to their heterosexual counterparts violates the equal protection guarantee of Article I, Paragraph 1 of the New Jersey Constitution. She dissents from the majority's distinguishing those rights and benefits from the right to the title of marriage. She also dissents from the majority's conclusion that there is no fundamental due process right to same-sex marriage encompassed within the concept of "liberty" guaranteed by Article I, Paragraph 1. She is of the view that persons who exercise their autonomous liberty interest to choose same-sex partners have a fundamental right to participate in a state-sanctioned civil marriage.
JUSTICES LaVECCHIA, WALLACE, and RIVERA-SOTO join in JUSTICE ALBIN's opinion. CHIEF JUSTICE PORITZ filed a separate concurring and dissenting opinion in which JUSTICES LONG and ZAZZALI join.