Yawning Bread. October 2006

New Jersey court orders legislature to provide for same-sex unions




On 25 October 2006, the Supreme Court of New Jersey, USA, told the State's legislature that it had to either legalise marriage for same-sex couples, or create a parallel legal institution of civil union for them. The court gave lawmakers 180 days to comply.

This was the decision in the case [1] brought by 7 same-sex couples (some of whom had children in their families) who were suing the State for not permitting them to marry.

Three out of the seven judges dissented, but this narrow 4:3 victory is not what it seems. The 3 dissented not because they objected to same-sex marriage, but because they felt the court should not even give the legislature the option of enacting civil union legislation. They felt that the court should rule that the couples should be permitted to marry right away.

The majority opinion was written by Justice Barry Albin, and joined by Justices Wallace, Rivera-Soto and LaVecchia.

Equality under the constitution

The central analytical distinction they made was between the right to marry and the rights of marriage. Dealing first with the latter, the justices noted that New Jersey laws conferred many automatic rights and benefits to married couples and their children. While the State also had a Domestic Partnership Act, couples registered under this law had only some of the rights and benefits extended under the marriage statute.

Same-sex couples may register under the Domestic Partnership law, but not under the civil marriage law. Furthermore, while almost any 2 opposite-sex couples can get married, the Domestic Partnership Act contains various eligibility requirements before 2 persons can be registered. Hence these couples and their children do not enjoy equal treatment under the law.

This violated the equal protection guarantee of the New Jersey Constitution. To overcome this, the State had to show that it had a legitimate governmental purpose in making a distinction between one type of couples and another.

After hearing arguments, the court found that "other than sustaining the traditional definition of marriage... the State has not articulated any legitimate public need for depriving same-sex couples of the host of benefits and privileges."


The court further noted that New Jersey has a nondiscrimination law that forbids discrimination on the basis of sexual orientation. Children are also fostered into same-sex households.

"There is no rational basis for, on the one hand, giving gays and lesbians full civil rights in their status as individuals, and, on the other, giving them an incomplete set of rights when they follow the inclination of their sexual orientation and enter into committed same-sex relationships," the court said.

Thus the court directed the legislature to remedy this difference and ensure that all the rights and benefits given to opposite-sex couples also be given to same-sex couples. They should have the rights of marriage.

What's in a name?

The second part of the issue was whether that union between same-sex partners should also be called "marriage", i.e. whether they had a right to marriage.

The plaintiffs (i.e. the 7 couples) argued that the title of marriage is an intangible right, without which they are consigned to second-class citizenship. This intangible right springs from the way social legitimacy is conferred to couples who are 'married'.

On the part of the State, its case was that this being a social question, "the power to define marriage rests with the Legislature, the branch of government best equipped to express the judgment of the people on controversial social questions."

The State asserted that it had a substantial interest in preserving the historically and almost universally accepted definition of marriage as the union of a man and a woman. If the age-old definition of marriage is to be discarded, such change must come from "the crucible of the democratic process."

The court acknowledged that "we cannot escape the reality that the shared societal meaning of marriage -- passed down through the common law into our statutory law -- has always been the union of a man and a woman."

Change in words' meanings should come from "civil dialogue and reasoned discourse, and the considered judgment of the people in whom we place ultimate trust in our republican form of government," i.e. the legislature.

"New language is developing to describe new social and familial relationships, and in time will find its place in our common vocabulary," Justice Albin wrote.

Eventually, "the proper labels will take hold."

For this reason, the court kicked the matter over to the New Jersey legislature, giving it 180 days to "either amend the marriage statutes to include same-sex couples or enact a parallel statutory structure by another name," so long as same-sex couples enjoyed equally the rights and benefits, but also bore the burdens and obligations of civil marriage.

If the legislature chose to create a new statutory structure, however, the court indicated that it reserved the right to assess for itself, in due course. whether the details of that new statute were in accordance with the constitution.

The New Jersey Supreme Court
Standing (L to R) John Wallace, James Zazzali, Barry Albin, Roberto Rivero-Soto
Seated (L to R) Virginia Long, Chief Justice Deborah Poritz, Jaynee LaVecchia.


The dissenting opinion was written by Chief Justice Deborah Poritz, joined by Justices Long and Zazzali.

They concurred with the majority on the matter of rights and benefits for committed same-sex couples. These currently violated the equal protection guarantee in the State constitution.

But they could "find no principled basis, however, on which to distinguish those rights and benefits from the right to the title of marriage," they wrote.

The plaintiffs spoke "of the deep and symbolic significance to them of the institution of marriage. They ask[ed] to participate, not simply in the tangible benefits that civil marriage provides -- although certainly those benefits are of enormous importance -- but in the intangible benefits that flow from being civilly married."

Citing a ruling from the Massachusetts Supreme Judicial Court, Poritz said "Marriage also bestows enormous private and social advantages on those who choose to marry," which meant that for the State to deny a class of people access to those private and social advantages was an act of discrimination.

"What we 'name' things matters, language matters... Labels carry social and moral consequences."

Hence, "by excluding same-sex couples from civil marriage, the State declares that it is legitimate to differentiate between their commitments and the commitments of heterosexual couples. Ultimately, the message is that what same-sex couples have is not as important or as significant as 'real' marriage, that such lesser relationships cannot have the name of marriage."


Procreation argument not used

The State of New Jersey did not try to use the procreation argument in this case before the NJ Supreme Court.

This argument had apparently been disposed of when the case was heard at a lower court (before reaching the NJ Supreme Court). Appellate Division Judge Donald Collester Jr had dismissed the notion that "procreation or the ability to procreate" supports the argument against same-sex marriage. After all, 4 of the 7 same-sex couples before the court had children too, giving birth to children after artificial insemination.

He further asserted that if marriage indeed is "the optimal environment for child rearing," then denying plaintiffs the right to marry their committed partners is fundamentally unfair to their children.


The court has a duty to "weigh the nature of the restraint or the denial against the apparent public justification, and decide whether the State action is arbitrary."

Against that, the public justification is that the State had an interest in "the traditions, and collective conscience" of the people who saw marriage in a certain way.

Yet, "it is no answer that same-sex couples can be excluded from marriage because ‘marriage’ by definition, does not include them. In the end, an argument that marriage is heterosexual because it ‘just is’ amounts to circular reasoning."

It is the duty of the court to rethink these so-called traditions and collective consciences, the dissenters asserted. Quoting Justice Kennedy of the US Supreme Court, Poritz wrote, "times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom."

Criticising the majority in the New Jersey Supreme Court, she said, "Without analysis, our Court turns to history and tradition and finds that marriage has never been available to same-sex couples. That may be so -- but the Court has not asked whether the limitation in our marriage laws, 'once thought necessary and proper in fact serve[s] only to oppress'."

Perhaps, the court minority said, the legislature will do the right thing and provide same-sex couples access to civil marriage, but this was no excuse for the majority on the New Jersey Supreme Court to duck the issue. Essentially, "the question of access to civil marriage by same-sex couples is not a matter of social policy but of constitutional interpretation..... It is a question for this Court to decide."

© Yawning Bread 


Raising children

The dissenting opinion also touched on the question of child-raising in same-sex households, probably because a number of (anti-gay) amici curiae brought this up.

Poritz: "[They] have claimed the promotion of procreation and creating the optimal environment for raising children as justifications for the limitation of marriage to members of the opposite sex. That claim retains little viability today. Recent social science studies inform us that same-sex couples increasingly form the core of families in which children are conceived, born, and raised.

"Further, empirical studies comparing children raised by sexual minority parents with those raised by otherwise comparable heterosexual parents have not found reliable disparities in mental health or social adjustment, suggesting that the 'optimal environment' position is equally weak.

"Without such arguments, the State is left with the 'but that is the way it has always been' circular reasoning."

She cited a number of social science and psychology studies for the above finding.



  1. The case is referred to as Mark Lewis and Dennis Winslow, et al. v. Gwendolyn L. Harris, etc., et al.
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  2. The preliminary text of the court's opinion can be seen here at the FindLaw site. (90 pages).