New Jersey Gay Marriage Opinion - Gay Unions Required

NJ Supreme Court ^ | 10/25/06 | NJ Supreme Court

[conservative in nyc]

To comply with the equal protection guarantee of Article I, Paragraph 1 of the New Jersey Constitution, the State must provide to committed same-sex couples, on equal terms, the full rights and benefits enjoyed by heterosexual married couples. The State can fulfill that constitutional requirement in one of two ways. It can either amend the marriage statutes to include same-sex couples or enact a parallel statutory structure by another name, in which same-sex couples would not only enjoy the rights and benefits, but also bear the burdens and obligations of civil marriage. If the State proceeds with a parallel scheme, it cannot make entry into a same-sex civil union any more difficult than it is for heterosexual couples to enter the state of marriage. It may, however, regulate that scheme similarly to marriage and, for instance, restrict civil unions based on age and consanguinity and prohibit polygamous relationships.

The constitutional relief that we give to plaintiffs cannot be effectuated immediately or by this Court alone. The implementation of this constitutional mandate will require the cooperation of the Legislature. 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.

For the reasons explained, we affirm in part and modify in part the judgment of the Appellate Division.

JUSTICES LaVECCHIA, WALLACE, and RIVERA-SOTO join in JUSTICE ALBIN’s opinion. CHIEF JUSTICE PORITZ filed a separate opinion concurring in part and dissenting in part in which JUSTICES LONG and ZAZZALI join.

[NewJerseyJoe]

> > NJ, where there ain't gonna be a public outcry over this decision.

There will be -- mostly from my area, Sussex County, which is sort of "ground zero" for NJ conservatism -- but it will be ignored. Ignored by the despicable lib Dems as usual, and by the RINOs who only come to see us when it's election time.

Time for me to start looking for a house in the Poconos. Lynn Swann would get my vote!

[Libertina]

Since other state supreme courts have already ruled AGAINST this MULTIPLE times, why doesn't the NJ court need to follow precedent? Funny, that only seems to apply when conservatives want something.

[conservative in nyc]

A ruling of other state supreme courts isn't binding precedent. Each state is its own equal sovereign entity.

[NewJerseyJoe]

>> Each state is its own equal sovereign entity.

In New Jersey, unfortunately, only the court is a sovereign entity. We voters can basically go to hell, for all they care down in the star chamber in Trenton.

[Kahonek]

"portability is blocked by the federal defense of marriage act (assuming it stands). But I see your point, if what you are looking ahead to is the DOMA going down in the SCOTUS."

Portability is not actually blocked by DOMA. It's just not imposed by DOMA. Any state can go ahead and make the marriages of other states portable to their state if they choose to do so. It's less likely that they would do that with civil unions, given that the nature of the unions differs from state-to-state. Meanwhile, with Alito and Roberts on the bench, DOMA is less likely to go down, don't you think?

[A Longer Name]

And what the hell am I paying for in New Mexico?

You think hiding alien visitors is cheap?

[Captain Rhino]

So not only would the court be usurping the legislative power they would also be stealing from the treasury via judicial fiat. How so you suppose they are going to collect their money if the Executive Branch decides not to play along? I suppose the Executive branch could also step over the bounds of their constitutional powers and arrest the justices.

Well, yeah. You can start down that road, but when you do, you are departing the sphere of rule of law, checks and balances, and three coequal branches of government. Unless a sense of proportion and value for the basic institutions prevails, you are on your way to the American version of the English Civil War.

(Here's a link for a Wikipedia article on the English Civil War: http://en.wikipedia.org/wiki/English_Civil_War)

I won't bore you with the details because the situation then was a lot more serious than anything likely to flow out of this court decision and the specific details aren't exactly parallel to this case. What I am pointing to is that it is illustrative of a situation where an executive (stubborn, authoritarian King) becomes entangled in a power struggle with an legislature (equally determined Parliament) and there was no mutually accepted venue (essentially some sort of court) that each could take their claims and counterclaims to for an authoritative decision that each has previously committed to accept. (England was newly Protestant at this point, so going to the Papal Curia in Rome, as had been done traditionally, was out.)

The result was three episodes of bloody civil war, the show trial and execution of Charles I, exile of his son Charles II, the abolition of the monarch, the 10 year dictatorship of Oliver Cromwell as Lord Protector, and the restoration of the monarchy (as a constitutional monarchy) under the House of Hanover. All of this happened within a hundred years of the births of most of the framers of the U.S. Constitution and would have been a part of their education in politics and history. A number probably had relatives that were directly affected by the upheaval. Is it any wonder that they settled on the pattern of three coequal branches of government, the system of checks and balances, and the respect for the rule of law?

For starters they could alledge the illegal usurping of legislative & executive powers in a undemocratic tyrannical power grab.

Well, let's see where the offense lies. The New Jersey legislature is the author and custodian of the New Jersey Constitution. The New Jersey Constitution says (paraphrasing here) all New Jersey citizens and residents enjoy equal rights before the law. That constitution also establishes the state court system for hearing cases concerning issues of fact and issues of state law. A group of New Jersey citizens comes forward to a court with competent jurisdiction and alleges in a lawsuit that the state laws implementing the state constitution do not treat them equally because they are homosexuals. The court has a trial in which both sides can present their arguments for and against. The court, staffed by judges that have been vetted for competence and judicial temperament and confirmed by legislative majority, renders a decision. One side loses and appeals. The case is heard by the state Supreme Court, which is empowered by the state constitution to rule on the constitutionality of state laws. The state Supreme Court, composed of judges confirmed by the legislature, finds that, yes, in deed, the state laws are out of sync with the equal protection clause of the state constitution. Since the state constitution takes precedence, the court rules the laws must be changed. It does not change the laws itself, nor does it rule that gay marriage is now legal. Instead, it refers the matter back to the authoritative law making body for action. It sets a date 180 days in the future so that it can legally review actions taken on its decision. So far, this is just a straight example of the legal process. Where is the impeachable offense?

[durasell]

You think hiding alien visitors is cheap?




Build the fence!

[oceanview]

I still think there are 5 votes to take the DOMA down, if anthony kennedy is having a fit that day.

[Captain Rhino]

Does the New Jersey Constitution define "Heterosexual" or "Heterosexual Married Couple" anywhere? Is a homosexual man married to a heterosexual woman considered a heterosexual married couple?

I doubt the New Jersey Constitution defines marriage but the ruling referred to the fact that New Jersey legislators have passed a law defining marriage as exclusively heterosexual in character. In fact, the recentness of this law's passage was taken by the judges as a indication that marriage continues to be viewed as exclusively heterosexual institution by a majority of living New Jersians(?)...err...New Jerseites(?)

Are heterosexual married couples assumed to be "committed" by the NJ Constitution or any NJ Law? If not, then why are same-sex couples required to be committed?

On what basis would a same-sex couple that is not committed be denied equal protection under Article I, Paragraph I of the NJ Constitution?

Yeah, sort of ambiguous, isn't it. Two meanings are possible. A lot of homosexual rights activists use committed as a codeword for an existing long term monogamous homosexual relationship. Committed could also refer to the commitment ceremonies for homosexuals that certain mainline Protestant churches are now conducting. IMO, the judges were using the term to refer to the existence of a marriage-like relationship between two (and only two) homosexuals.

Wait a minute! What happened to the requirement that the same-sex couple be committed? If the statute is amended, will a new requirement that opposite-sex couples be committed be introduced? Or is there to be no requirement that the same-sex couple be committed, after all?

You answer yourself on the committed aspect of your question later in your own post. But note that the court has laid down the easy and the hard paths the legislature can take to implementing the decision:

Easy: Just modify the marriage statutes (how many can there be?)to include same-sex couples.

Hard: Go through every single NJ statute, find the ones touching on the rights, benefits, burdens and obligations of marriage and then modify them to create parallel but exactly equivalent rights for heterosexual marriage and homosexual civil unions. And don't miss one or the plaintiffs will go right back to court and accuse the state of continuing discrimination.

Well, if the State is not permitted to make entry into same-sex civil union any more difficult, then there can be no "committed" test. So I guess that puts that one to rest. All that is to be required is that they not be polygamous or directly related.

By the way, what would be the reason to deny a consanguineous same-sex couple equal protection under Article I Section I of the NJ Constitution? Heck, I'll even allow as to how that couple might be "committed". It certainly is not in order to prevent genetic disease, is it? Why are the Supremos getting all judgmental, all of a sudden?

Obviously, no biological issues involved, but the court is striving in it's ruling for exact equality between marriage and civil unions. Consequently, consanguinity is prohibited for homosexual civil unions because it is forbidden now (and presumably will continue to be forbidden) to heterosexual marriage partners. Exact equality is enforced for both sides - even if it doesn't make sense.

And if the Legislature does not pass the law, will the NJ State Supreme Court command a remedy? If so, the cooperation of the Legislature is not required for implementation, is it?

See my post 345 above for my opinion about what happens if the legislature does not act.

[Captain Rhino]

Well, that's better than nothing.

[Libertina]

Then why do other states have to adopt every nutty thing CA does and watch their rulings? Why are citizens told that if Vermont oks gay marriage then OUR states must also do so? Congressman, we need legal input here! BTTT

[conservative in nyc]

Then why do other states have to adopt every nutty thing CA does and watch their rulings? Why are citizens told that if Vermont oks gay marriage then OUR states must also do so?

No state has to adopt every nutty thing CA does. Some nutty states choose to do so, usually through the legislature. And although the state supreme courts do sometimes look for guidance at how other states have decided an issue, decisions of the California Supreme Court aren't binding precedent on courts in New York or any other state - those courts in need not follow them, deciding California is just being nutty California again.

The reason we are told that if Vermont okayed gay marriage, then our states "must do so also" is because if Vermont okayed gay marriage and allowed out-of-staters to get married there, your state residents would go to Vermont to get married. Then, absent a law to the contrary, your state might have to give full faith and credit to Vermont's marriage laws, effectively making them married inside your state.

[Congressman Billybob]

When a "case of first impression" reaches the highest court in any state, it will look at what decisions other state high courts have made on the same issue. It is not bound to follow such other state decisions. Unlike a US Supreme Court decision which is binding, these are merely advisory.

John / Billybob

[Aetius]

My point is that by getting the court to impose either 'marriage' or what would be marriage in all but name, the Left/gay lobby won a big victory. To characterize this decision as anything else is disingenuous, especially for conservatives. Even those conservatives who support civil unions should at least agree that there is no constitutional basis to demand them, and that the Courts have no role in the matter. If conservatives can't at least agree with that, then they need to examine if they really are conservatives, because only a thorougly leftist idea -- the Living Constitution method of interpretation -- can allow one to arrive at the opposing position.

The question is not about what makes a marriage important, but rather about who has the legitimate authority to define marriage for society's public purposes.

[sasafras]

"A large part of the problem is that these RINOs look at the leftists as colleagues, not as the enemy."

You hit the nail on the head.

[Luis Gonzalez]

Married people are treated differently by the government than unmarried people do, specifically when it comes to taxation...we'll start there.

The government is supposed to interact with citizens as genderless, ageless entities with no ethnic or racial background or religious beliefs...we are all supposed to be treated exactly the same in the eyes of the law.

We do not allow homosexual marriages to happen based on the sex of the applicants, which stands basically against the idea of equal treatment under the law, the resoning behind this denial of equal treatment under the law is founded on religious beliefs.

There is a world of difference between a civil union and Holy Matrimony, and the expectations surrounding both.

A marriage ceremony conducted by member of the clergy carries with it prohibitions of adultery among other things that are not part of a civil ceremony, and while most rules surrounding civil marriages have to do primarily with taxation, inheritance, property rights, medical and pension decisions and benefits, and children, most states' definitions of marriage do not require exclusivity of sexual or romantic relations or other particulars.

Here's an interesting perspective from a Conservative Rabbi:

Connecticut law requires that any “religious” marriage be recorded with the State (General Statutes, Ch. 815e, Sec. 46b-22). This makes a religious marriage subject to the laws of the State, but does not make a State marriage subject to the laws of any religion. Is this requirement for the benefit of the State, or for the benefit of the couple? What is the State's interest?

A Christian or other religious marriage has a set of rules, customs and expectations that defines and governs the marriage, and that goes beyond the civil definition of marriage. Religious marriages are distinct from the civil Las Vegas marriage, which can be licensed, recorded and terminated within a span of days. While the government may recognize all of these as “marriages,” they are not quite the same.

Why should the state recognize any marriage? Our answer to this question determines our position on same-sex marriage. The state's reason cannot be to help the religious communities enforce their doctrines or value systems. If the state recognizes any marriage, it must have a purpose that helps the broad public without infringing on our liberties or harming a segment of our population.

As far as I can see, the state finds it advantageous to have a conventional set of rules for taxation, inheritance and the like to apply to a “couple.” It really does not matter to the state if that couple is living according to Catholic ideals, halakha, or their own private set of “commitments” that they have made to each other. For that reason, I have no more objection to the state calling the commitment between a same-sex couple “marriage” as I do to any of the other religious or civil relationships that are called by that name. But if it is found that it harms the religious sentiments of many Americans to share the word “marriage” with a same-sex couple, then perhaps the state should simply stop using the word “marriage” for anyone and instead define “civil partnerships.” Let the battle over the word “marriage” be fought on the battlegrounds of the religious communities (including our own), where the symbolism is of utmost importance, not in the civic arena, where tax policy, inheritance and medical benefits are at stake.

[GOPologist]

I suppose if a gay couple has the same rights as a straight couple then I can see gays flocking to adopt the child that is the same gender as they are. Sort of a legal built-in perversion.

[Luis Gonzalez]

"Marriage is a civil union (contract)."

By the way, you're wrong.

Marriage is a religious covenant between a man, a woman, and their God. You're so immersed in big government intrusion that you fail to realize that marriage existed before both contracts and government.

[FlyingEagle]

I do not live in New Jersey so I do not know about all these sophisticated interpretations of contracts and governments. In my world, marriage is a sacrament. Here is an idea: for a man united in a commited life relationship of holy matrimony with a woman, New Jersey can call that relationship "marriage". For a man united with a man, or a woman united with a woman, the new name they can use is living in a relationship called "sin". Then eveyone can be clear about it and we do not have to mince words. The added benefit is that the terminology will be consistent with reality, and with millenia of cultural practice and religious truth and doctrine.