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Progress of the lawsuit: 2003 to 2006

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Earlier information about the case

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2003: State motion to dismiss the case:

On 2003-MAR-31, the state of New Jersey moved to dismiss the Lewis et. al. v. Harris et. al. lawsuit. They made a number of claims:

bullet As a matter of law, the Court cannot review the constitutionality of a marriage statute that applies only to a male-female couple simply because the legislature has chosen to define this legal institution in that way.
bullet Marriage is an immutable institution that stands above the requirements of the Constitution.
bullet Discriminating against same-sex couples by restricting marriage to "a union of a man and a woman is 'as old as the book of Genesis.' " Because same-sex couples have long been excluded from marriage by law, the state Constitution permits the law to continue to discriminate.
bullet The plaintiffs seek "a fundamental change in the meaning of marriage itself."
bullet "...same-sex marriage is [not] so rooted in the traditions of this State that it must be deemed to be a fundamental right."
bullet The state wishes to avert "disrupt[ion] of long-settled expectations and deeply-held beliefs" of the majority of New Jersey adults."
bullet The state has an "interest in preserving uniformity among the States with respect to the definition of marriage."
bullet The plaintiffs are not discriminated against, because they are free to marry anyone of their choosing, as long as it is a person of the opposite gender. 1

Lambda filed a 52 page document on 2003-MAY-9 which responded to the motion to dismiss the lawsuit. They included a number of quotations from New Jersey Supreme Court decisions:

bullet "We can only reiterate that decisions such as whether to marry are of a highly personal nature; they neither lend themselves to official coercion or sanction, nor fall within the regulatory power of those who are elected to govern." Saunders, 75 N.J. at 219.
bullet "[T]he New Jersey Constitution of 1947 'in a broader way than ever before in American constitutional history' expresses ideals of liberty that include the guarantees of the fundamental right to marry and to equal protection." Right to Choose v. Byrne, 91 N.J. 287,303 (1982).
bullet "New Jersey has always been in the vanguard in the fight to eradicate the cancer of unlawful discrimination of all types from our society." Peper v. Princeton Univ. Board of Trustees, 77 N.J. 55, 80 (1978). 1

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2003-MAY: Public opinion poll:

A poll conducted by New Jersey City University for The Jersey Journal newspaper revealed that a significant majority of Hudson County residents supported legalized SSM. Hudson county includes the cities of Jersey City, Union City, Bayonne, and Hoboken. The poll was supervised by Fran Moran, of the Political Science Department, and Bruce Chadwick, of the English Department. They were surprised by the support for gay marriage, saying: "Hudson is a working-class, blue-collar and heavily Catholic county and we surmised that residents would be strongly against gay marriage."

Some results of the poll:

bullet 55.6% of Hudson County residents supported legalizing SSM.
bullet 34.2% were opposed.
bullet 10.2% were undecided or gave no response.

There was a wide variation in support by different religious groups:

bullet Among Roman Catholics, 60.4% were in favor.
bullet Among Protestants, only 30% were in support.

There was an unexpected variation by gender. In all previous polls that we have seen, a larger percentage of women favored same-sex marriage than men. Here, the results were reversed:

bullet 61% of men were in favor
bullet 51% of women were in favor

There was the expected variation by age:

bullet 71% of 18 to 29 year-olds were in favor
bullet 20% of those over 65 were in favor.

Moran and Chadwick said:

"Usually, home- and marriage-oriented women tend to be more understanding of same sex relationships than men. The overall results, especially among the youngest county residents, certainly reflect a changing public opinion of this controversial subject, especially in a blue-collar county where such a view would not be expected." 2

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2003-JUN: The trial-level court hearing and decision:

On 2003-JUN-10, in a similar case, the Court of Appeal in Ontario, Canada issued a ruling that same-sex couples could marry in that province. Nine days later, Lambda issued a news advisory. Lead attorney for Lambda, David Buckel, stated that:

"Canada this week has shown us what’s possible -- in New Jersey, we intend to make marriage a reality here at home. Our clients pay taxes in New Jersey, and they want full citizenship in New Jersey -- not in another state or another country." 3

Actually, the comment was slightly premature. SSM was not available across all of Canada until the proclamation of federal bill C-38 on 2005-JUL-20

A judge heard arguments from both sides on 2003-JUN-27. 3 The plaintiff's case was based upon the New Jersey constitution. This means that the New Jersey Supreme Court will have the last word on the case.

In early 2003-NOV, as expected, the court ruled against the seven gay and lesbian couples. David Buckel, a Lambda Legal attorney and lead attorney on the lawsuit said:

"We’re not surprised by this lower-court ruling. More than anything, this ruling propels us forward to higher courts where both sides have always known it will be decided. Today’s ruling speeds the clock up toward the day lesbian and gay couples in New Jersey can seek the protections they need for their families from the state's high court.....In civil rights movements in this country, seeking freedom has always been on a long road - and the struggle for marriage is no different. But this is familiar territory for us. Just this summer, Lambda Legal won a landmark U.S. Supreme Court case striking down Texas’s sodomy law and every law like it in the nation - but we saw several lower-court losses along the way. One day we will win the freedom to marry because we’re fighting for our families." 4

The case was then appealed to the New Jersey Appeals Court.

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2004-JAN-08: Senate approves domestic partnership law:

The New Jersey Senate approved the Domestic Partnership Act. It gives formal recognition and limited protections, obligations, and rights to a very small percentage of same-sex couples. The "Domestic Partnership Act" is available to both same-sex and opposite-couples, but only if they are over the age of 62 and not too closely related -- siblings and first cousins are prohibited from registering. They must live together, be involved in a "committed relationship of mutual caring," and agree to support each other if needed. It also recognizes similar partnerships from other states, such as Vermont and Hawaii. Partners have guaranteed rights in areas of hospital visitation, organ donation, health care proxies, protection from discrimination by employers, landlords, lenders, etc. But the act initially did not offer provision for alimony or division of marital assets. If one partner dies without a will, the other partner could receive nothing from the estate.

Surprisingly, the law created little opposition or attention, perhaps because it would impact the lives of such a small number of couples. 5

The bill was signed into law and took effect on 2004-JUL-10. In 2006, the legislature added inheritance and funeral rights to the list of benefits and protections.

Although many gays, lesbians, and bisexuals supported the bill, there was a general belief that it does not go far enough. Steven Goldstein, chairperson of Garden State Equality said:

"It wouldn't matter if all the rights in the world were piled onto the existing domestic-partnership law if you still didn't call it marriage. Marriage is the only currency of commitment the real world universally accepts." 6

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2005-JUN-14: Appeals Court rejects SSM:

The New Jersey Appeals Court rejected the plaintiff's case by a vote of 2 to 1. This cleared the way to appeal the case to the New Jersey Supreme Court for a final ruling. Judge Donald G. Collester, Jr. said, in his 31 page dissent:

"By prohibiting them from a real right to marry, plaintiffs as well as their children suffer the real consequences of being 'different.' While the Domestic Partnership Act gives, at some cost, many, but not all, of the benefits and protections automatically granted to married persons, we have learned after much pain that 'separate but equal' does not substitute for equal rights." 7

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The case continues

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. "Lewis, et al. v. Harris et al., Lambda Legal's reply brief in opposition to defendants' motion to dismiss," 2003-MAY-8, at:
  2. Peter Weiss, "Shocking results in gay marriage poll," The Jersey Journal, 2003-MAY-5, at:
  3. "New Jersey State Court To Hear Oral Arguments Friday, June 27, in Lambda Legal’s Case Seeking Full Marriage Rights for Same-Sex Couples," Lambda, 2003-JUN-19, at:
  4. "Lower-Court Loss in Lawsuit Seeking Marriage for Same-Sex Couples in New Jersey 'Propels Us Forward' To Higher Courts Where Case Will Be Decided, Lambda Legal Says," Lambda Legal, 2003-NOV-05, at:
  5. Joanna Grossman, "The New Jersey Domestic Partnership Law" Its Formal Recognition of Same-Sex Couples, and How It Differs From Other States' Approaches," FindLaw, 2004-JAN-13, at:
  6. Geoff Mulvihill, "Gays see domestic partner law as stopgap. They await ruling on right to marriage," Associated Press, 2006-JUL-10, at:
  7. "New Jersey Appeals Court Rules 2-1 Against Marriage Equality for Same-Sex Couples, Moving Lambda Legal's Case to State Supreme Court for Final Ruling," Lambda Legal, 2005-JUN-14, at:

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Site navigation: Home > Homosexuality > Same-sex marriage > Menu > New Jersey > here

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Copyright © 2002 to 2006 by Ontario Consultants on Religious Tolerance
Originally written: 2002-JUL-2
Latest update: 2006-OCT-29
Author: B.A. Robinson

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