All But the Name of Marriage: New Jersey Adopts "Civil Unions" for Same-Sex Couples

By JOANNA GROSSMAN

Tuesday, Dec. 26, 2006

Just two months after being instructed to do so by the New Jersey Supreme Court, New Jersey's legislature has amended its marriage laws to provide equal benefits to same-sex couples. The legislature did so by granting same-sex couples access to "civil unions," a status equivalent to marriage in all but name.

This decision will disappoint supporters of gay marriage, and rightfully so. It is, however, arguably consistent with the views of the New Jersey voters the legislature represents. When polled, New Jersey voters strongly (by 60 percent) favor rights for gay couples, less than a majority (44 percent in favor, 50 percent opposed) support same-sex marriage.

Lewis v. Harris: The Impetus for New Jersey's Civil Union Bill

On November 18, 2003, the Massachusetts Supreme Court issued its landmark ruling in Goodridge v. Department of Public Health, finding that it violated Massachusetts' constitution for the state to withhold the benefits of marriage from same-sex couples. That decision, of course, led Massachusetts to legalize same-sex marriage -- becoming the first (and still the only) state to do so.

Interestingly, in New Jersey, the same-sex marriage issue had already begun percolating through the courts when the Goodridge decision was handed down. At that time, a New Jersey trial court, in Lewis v. Harris, had already issued a ruling refusing to conclude that New Jersey's's longstanding ban on same-sex marriage violated the state's constitutional guarantees of due process and equal protection. (I wrote about the trial court's ruling in detail in a prior column.) At the time, the New Jersey trial court's ruling was typical of those issued by courts around the country at the time.

Subsequently, the New Jersey legislature adopted a domestic partnership law, which I have described in detail in a previous column. Under that law, which took effect in 2004, same-sex couples could register as domestic partners, and therefore gain a set of rights. (Although the law will continue to recognize domestic partnerships already created, the civil union will trump that law with respect to couples not yet registered.) However, these rights exclude some of the very rights couples tend to find most significant - such as the right of entitlement to support or property redistribution upon dissolution of the partnership, and the right to have private employers grant an employee's partner insurance (and other, similar) benefits. Originally, the law did not even include the right to inherit from a partner at death, but it was later amended to provide that right.

Eventually, the trial court's decision in Lewis v. Harris was appealed. In an opinion that was strikingly poorly-reasoned, the appellate court agreed with the trial court that the New Jersey Constitution does not mandate that same-sex couples be permitted to marry. The majority cited the religious foundations of the institution of marriage -- though such a perspective was patently improper under the U.S. Constitution's Establishment Clause. It also characterized the "essence" of marriage as revolving around procreation - ignoring, among other salient points, same-sex couples' ability to legally adopt children together in New Jersey; to bring children from prior unions into their union; and to procreate using donor sperm or a surrogate mother.

The majority's opinion thus demeaned and deprecated all couples who adopt, or otherwise have children in a way that means they are not both biological parents of the child. (I explored the majority's justifications further in an earlier column, co-authored with Linda McClain.)

Fortunately, the New Jersey Supreme Court reversed this ugly ruling -- holding that it did, indeed, violate the New Jersey Constitution to deny same-sex couples the benefits of marriage. The court found no legitimate reason to justify the continued exclusion of same-sex couples from the myriad benefits of marriage. It did not insist that "marriage," per se, be opened to all, but instead deferred to the legislature to choose whether to "unrestrict" marriage, or to create a new equivalent status for same-sex couples. As noted above, the legislature chose the latter option.

Civil Unions: New for New Jersey, but Established Elsewhere

The Court gave the legislature 180 days to act, but it took less than two months. The New Jersey legislature passed, and New Jersey Governor Jon Corzine signed the "Civil Unions Bill" into law. New Jersey's law, which is similar to those adopted in Vermont and Connecticut, grants all the benefits, and imposes all the obligations, of marriage on same-sex couples who choose to "civilly unionize."

The law consists of a broad grant of equal benefits, followed by the specific amendment of laws to which marital status is relevant. The crux of the law provides that "[p]arties to a civil union shall have all of the same benefits, protections and responsibilities under law, whether they derive from statute, administrative or court rule, public policy, common law or any other source of civil law, as are granted to spouses in a marriage."

According to its introductory statement, the bill was crafted not only to comply with the court's mandate in Lewis, but also to carry out and extend New Jersey's solid history of guaranteeing equality for homosexuals. New Jersey was the first state to adopt comprehensive legislation banning discrimination on the basis of sexual orientation, and, as discussed above, it had earlier adopted a domestic partnership law without pressure from the courts.

The civil union law furthers the state's commitment to non-discrimination. As the bill's introductory statement explains: "[S]ame-sex couples in New Jersey live together in committed relationships without the benefits and rights afforded to heterosexual couples who choose to marry. Promoting such stable and durable relationships as well as eliminating obstacles and hardships these couples may face is necessary and proper and reaffirms this State's obligation to insure equality for all the citizenships of New Jersey."

Issues That Remain: Federal Recognition and Recognition in Other States

Unfortunately, though the New Jersey legislature did all it could on this score, same-sex couples who enter into New Jersey civil unions still will not be fully "equal" to their opposite-sex counterparts when it comes to benefits - in two respects.

First, because of the Defense of Marriage Act (DOMA), same-sex unions are not recognized under federal law, meaning that couples must file separate federal tax returns, and that entering into a civil union with a non-citizen does not affect the latter's immigration status, nor provide any other federally conferred benefit. (In opposite-sex couples, marriage to a citizen can improve the non-citizen's immigration status after two years.)

Second, other states still may not recognize New Jersey civil unions. Presumably, states that themselves permit civil unions to be established will recognize those established elsewhere, but these states are still a small minority. The vast majority of states have laws or constitutional amendments that explicitly refuse recognition to same-sex couples legally married elsewhere, and at least ten of those states also explicitly refuse recognition to "marriage-like" statuses such as civil unions or domestic partnerships.

What the Polls Show in New Jersey and Nationwide

In sum, New Jersey's new law falls short of the full equality that same-sex couples deserve. However, it is consistent with the current views of a majority of New Jersey voters. Is that point relevant? That depends on whether one sees the issue as ultimately a constitutional issue - to which the majority's views are irrelevant, for the focus is on ensuring equality for all, including minorities and those facing discrimination - or ultimately a policy issue to be decided by the legislature, by majority vote.

A recent poll by Quinnipiac University found that 60 percent of New Jersey voters support civil unions for same-sex couples. (These and other poll numbers on gay unions are available at www.pollingreport.com/civil.htm.) Interestingly, even among Republican voters, 46 percent support civil unions, edged out only slightly by the 49 percent who oppose them.

There is substantial support for same-sex marriage among the same voters, but not as much: 44 percent are in favor, and 50 percent are opposed. That suggests that, in a New Jersey referendum, same-sex marriage would fail -- but just barely.

These poll numbers show that New Jersey is ahead of the nation in its support for legal recognition of same-sex relationships. In a Quinnipiac poll of voters nationwide, only 34 percent - compared to New Jersey's 44 percent - support same-sex marriage. Moreover, the nationwide number has actually decreased in the three years since Massachusetts became the first state to legalize same-sex marriage. Voters nationwide also show weaker support for civil unions -- 45 percent in favor - than do New Jersey's voters, with 60 percent in favor. The nationwide number has held steady for the last several years, and may not have been affected by the Goodridge decision and its wide publicity.

Opponents of gay marriage in New Jersey have threatened to pursue a constitutional amendment to ban gay unions (including civil unions). But current poll results make that quest seem very unlikely to succeed. Only 37 percent of voters favor such an amendment, while 58 percent oppose one.

Are Civil Unions a Stop on the Way to Gay Marriage, or the Final Destination?

This week, voices both inside and outside the New Jersey legislature have been heard to claim that full-fledged marriage rights will follow in New Jersey within the next few years. Is that likely?

It may well be that public experience with civil unions will make support for gay marriage grow, once heterosexuals see that granting legal recognition to same-sex unions has little if any broader impact on their lives or marriages. But based on Quinnipiac's poll, at least, it seems the reverse has occurred, nationwide, with respect to support for same-sex marriage after Goodridge. It's thus possible that, though heterosexuals nationwide surely saw no practical effect on their own relationships and marriages after Goodridge, the decision nevertheless spurred ideological opposition, and a feeling of embattlement, in some heterosexuals.

Whatever backlash the civil union law spurs in New Jersey, however, is unlikely to be significant, given the poll results discussed above. With 60 percent of New Jerseyans favoring civil unions, and 58 percent opposing a constitutional amendment to ban them, there's very little chance that the civil union law in New Jersey will be abolished any time in the near future. Whether gay marriage will be legalized in New Jersey, however, is a much closer question; even if it does happen, it may take time.

Meanwhile, same-sex couples in New Jersey will at least have the opportunity to obtain legal recognition for their relationships - something for which many of them have fought long and hard. No longer will they have to function - as they did under the domestic partnership law - without the basic rights as to inheritance, alimony, spousal support, and participation in insurance benefits (for non-federal jobs, at least) that heterosexuals routinely enjoy.


Joanna Grossman, a FindLaw columnist, is a professor of law at Hofstra University. Her columns on family law, trusts and estates, and discrimination, including sex discrimination and sexual harassment, may be found in the archive of her columns on this site.

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