The New Jersey Supreme Court's Same-Sex Marriage Decision: Couples Get the Benefits of Marriage, but Will They Also Get the Name?

By JOANNA GROSSMAN AND LINDA MCCLAIN

Tuesday, Oct. 31, 2006

Last week, in Lewis v. Harris, the New Jersey Supreme Court ruled that the New Jersey Constitution's Equal Protection guarantees forbid the legislature to deny same-sex couples the rights and benefits of marriage.

But are same-sex couples entitled to call their unions "marriages"? That, the court held, is a question for the New Jersey legislature to decide.

The National Landscape -- and How New Jersey Fits In

Forty-one states expressly ban same-sex marriage (either by statute or constitutional amendment) and offer no marriage alternative. Four more states -- Rhode Island, New York, Wisconsin and New Mexico -- have no express legal ban, but they neither permit such marriages to take place, nor offer a marriage alternative with the same benefits and obligations.

The remaining five states offer either marriage, or an alternative, to same-sex couples. Pursuant to Goodridge v. Department of Public Health, Massachusetts allows same-sex couples to marry. Pursuant to Baker v. State, Vermont permits same-sex couples to enter into civil unions -- but not marriage. (Vermont's highest court allowed the legislature to withhold the term "marriage," and it did.)

Connecticut (without pressure from a judicial ruling) also recently adopted a civil union law. And California, while it still forbids same-sex marriage, permits same-sex couples a status that is very similar (but not identical): They may register as "domestic partners."

Before the Lewis opinion, New Jersey had a domestic partnership law, which gave same-sex couples access to some -- but not all -- of marriage's benefits. After the opinion, the legislature is required, at a minimum, to give same-sex couples full access to all the rights and benefits of marriage. However, the legislature can decide whether or not it will label their new status "marriage." In short, we do not yet know if New Jersey will be another Massachusetts, or another Vermont.

Withholding Benefits to Same-Sex Domestic Partners: A Denial of Equal Protection

The plaintiffs in the New Jersey case are seven same-sex couples. As the court noted, they live "ordinary" lives: They have children; work as ministers, nurses, and consultants; care for each other during long illnesses; use the same surnames; and are active in the PTA.

But the "seeming ordinariness" of their lives, the court observed, is "belied by the social indignities and economic difficulties that they daily face due to the inferior legal standing of their relationships compared to that of married couples." For example, unlike married couple, the same-sex domestic partners lacked -- among other rights -- access to spousal health insurance, presumptions of legal parentage, and access to family leave in case of illness.

The court rightly saw this as a denial of equal protection of the law.

(Meanwhile, the court, 4-3, rejected the plaintiffs' alternative substantive due process arguments, holding that the right to marry a same-sex partner is not so "deeply rooted in the traditions and collective conscience of our people that it must be deemed fundamental." The three dissenters argued, however, that the right to marry passed this test, and that within it is the right to choose what person to marry, and thus to choose a same-sex partner.)

Returning to the equal protection analysis, the court -- following New Jersey law -- performed a flexible weighing -- balancing the importance of the right against the governmental need for the ban. But in doing so, it split plaintiffs' claim into two: a claim to the right to the benefits of marriage, and a claim to the right to the label "marriage."

What might justify denying these important benefits to same-sex couples? Not much, it turns out. Significantly, the state did not argue that marriage must be limited to heterosexuals in order to encourage procreation and create the optimal living environment for children.

Especially since New Jersey is one of the states that allows adoption by same-sex couples, and since the evidence shows that same-sex couples are just as good at parenting as straight couples, the state was wise to drop these arguments. (As we noted in an earlier column, an intermediate New Jersey appeals court ruling against the plaintiffs, had invoked these and other arguments -- improperly injecting religious tenets and blatant gender stereotypes into its analysis.)

Protecting Couples, Not Just Individuals, from Sexual Orientation Discrimination

The court was fully cognizant that its ruling meant that New Jersey would join a distinct minority of states in allowing (at a minimum) a marriage alternative for same sex couples. But New Jersey, the court noted, has "never slavishly followed the popular trends in other jurisdictions."

Moreover, the court explained, New Jersey has been avid in protecting gays and lesbians as individuals. It prohibits employment discrimination or exclusion from public accommodations on the basis of sexual orientation. As noted above, it permits adoption. And over more than three decades, New Jersey has created an extensive network of laws to protect individual gays and lesbians from discrimination.

The court's point was clear: It makes little sense for New Jersey to give "gays and lesbians full civil rights in their status as individuals," but only "an incomplete set of rights when they follow the inclination of their sexual orientation and enter into committed same-sex relationships."

(This point -- while thus far rarely raised in same-sex marriage litigation -- could also be made about a number of other states whose laws exhibit the same inconsistency. Antidiscrimination provisions are more prevalent among the states than domestic-partnership provisions.)

The court reasoned that this legal situation -- in which laws protect individual gays and lesbians, but do not fully protect their right to opt to select an intimate partner and form their lives around that relationship -- fails to guarantee true equality in a significant way. The domestic partnership law, enacted in 2004, bridged part of this "inequality gap" -- but, by its own terms, it delivered only "certain rights and benefits . . . accorded married couples." And the rights it did not accord were significant. With its ruling mandating equality in benefits, the court aimed to close the gap.

What's In a Name: Should Same-Sex Relationships Be Called "Marriage"?

Should same-sex relationships -- once they are made equal to marriage in benefits and obligations -- also be called "marriage"?

This question, a four-justice majority of the court said, does not rise to constitutional magnitude, but is to be resolved in the "crucible of the democratic process" -- that is, in the state legislature. But three justices urged that, for equal protection to be satisfied, same-sex couples must be permitted to "marry."

In the policy arena, a similar debate is occurring. Pro-gay-rights pragmatists see civil unions as a big step toward marriage equality, because they secure tangible benefits for same-sex couples despite the present political climate. In their view, civil unions are a feasible, necessary interim achievement in the gradual advancement of gay and lesbian rights.

Some may even find that civil unions desirable precisely because they are unburdened by historical associations with gender inequality and religious doctrine, and detached from the prior climate of intolerance and discrimination. Indeed, initial press coverage of the New Jersey opinion -- rather than being critical -- has been supportive, stressing all the practical ways in which the decision's equalization of benefits will make life easier for same-sex couples and their children.

By contrast, marriage idealists argue that same-sex couples should have access to the symbolic meaning of marriage. Precisely because of its long history as a fundamental social institution, they argue, marriage carries powerful connotations of commitment and intimacy that a civil union simply does not replicate.

Along these lines, one of the New Jersey plaintiffs describes wanting "my words to match my life, so I want to say I am married and know that my relationship with Alicia is immediately understood." Another wants her parents to be able to brag about their three "married" children. And third wants to "marry" not only because of the tangible rights, but also because "society endows the institution . . . with a significant respect for the relationship."

In these narratives, the label "marriage" commands a unique public respect and esteem -- and equalizing that, is necessary to true equality. Similarly, the plaintiffs argued to the court that a parallel legal structure with a different name would consign same-sex couples to "second-class citizenship."

The Majority's Reasons for Withholding the "Marriage" Label Are Unpersuasive

Why was the four-justice New Jersey court majority comfortable, nonetheless, with withholding the "marriage" label?

First, the majority felt that to guarantee the label would go beyond ensuring equality, to force "social acceptance" upon the citizens of New Jersey.

Any change in the age-old definition of marriage, the majority believed, ought to come from the legislature, through "civil dialogue and reasoned discourse."

This belief, however, seems to stem more from considerations of policy, than legal reasoning. It's possible that New Jerseyans will find same-sex marriage more palatable if it comes from the legislature. But the court's role isn't to maximize social acceptance; it is to interpret the guarantee of equal protection of the law.

Recall that the majority stresses the sameness between same-sex and opposite-sex couples, in mandating equal benefits. It also notes that same-sex couples understandably aspire to speak the "common language" of marriage. If the couples really are the same, why doesn't equality mean they have equal access to the "marriage" label?

As Chief Justice Poritz observed in dissenting from that part of the opinion that withheld the "marriage" label, the State's -- and ultimately, the majority's -- reasoning boils down to the deeply unconvincing and circular "but that is the way it has always been." She correctly concluded that there remains "no principled basis . . . on which to distinguish those rights and benefits [that the court mandated] from the right to the title of marriage."

Second, the majority predicted that the new alternative status will come to have a strong symbolic meaning, too -- lessening the inequality between the two statuses.

That may well be true -- but merely lessening inequality is not good enough. The idea is to abolish it. Will the "gold standard" perception of marriage, the societal sense that it is not just different but superior, really abate entirely? It seems odd that the New Jersey court majority, interpreting the state constitution's equal protection guarantees, felt that it was sufficient to predict that these two statuses might someday become equal.

Equal protection is supposed to be a legal guarantee, not a matter of guesses and speculation. Equal protection is supposed to be a legal guarantee, not a matter of guesses and speculation. Moreover, the very reason some want to withhold the label "marriage" is that they see it as special, superior, and fit only for supposedly superior opposite-sex relationships. The fact that so many of those who seek to "defend marriage" seem willing to accept civil unions further illustrates this separate-but-unequal point.

Why the New Jersey Legislature Should Give Same-Sex Couples the "Marriage" Label

Now the New Jersey legislature must decide whether to grant or withhold the marriage label. It should grant the label.

It's true that this would be a break with the past. But the institution of marriage has already undergone a "great transformation" -- away from the "dead hand" of the past that imposed a gender hierarchy of husband over wife. And the status of gays and lesbians in New Jersey -- as individuals and as couples -- has been transformed, too, thanks to anti-discrimination protections, the legalization of gay adoption, and the transition, in family law, to a more functional approach to defining and protecting family. Requiring equal benefits means that the legislature must effect another "great transformation."

Why not complete the circle of equality?


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. Linda McClain, who has been a prior guest columnist for FindLaw, is Rivkin Radler Distinguished Professor of Law at Hofstra University. She discusses same-sex marriage and other family law issues in The Place of Families: Fostering Capacity, Equality, and Responsibility (Harvard University Press 2005).

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