SAME-SEX MARRIAGE IN NEW JERSEY
Progress of the lawsuit: 2003 to 2006
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.
made a number of claims:
||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.
||Marriage is an immutable institution that stands above the
requirements of the Constitution.
||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.
||The plaintiffs seek "a fundamental change in the meaning of
||"...same-sex marriage is [not] so rooted in the traditions of
this State that it must be deemed to be a fundamental right."
||The state wishes to avert "disrupt[ion] of long-settled
expectations and deeply-held beliefs" of the majority of New Jersey
||The state has an "interest in preserving uniformity among the
States with respect to the definition of marriage."
||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:
||"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
||"[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).
||"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
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:
||55.6% of Hudson County residents supported legalizing SSM.
||34.2% were opposed.
||10.2% were undecided or gave no response.
There was a wide variation in support by different religious groups:
||Among Roman Catholics, 60.4% were in favor.
||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:
||61% of men were in favor
||51% of women were in favor
There was the expected variation by age:
||71% of 18 to 29 year-olds were in favor
||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
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:
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
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:
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."
The case was then appealed to
the New Jersey Appeals Court.
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
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
"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
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
"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
The following information sources were used to prepare and update the above
essay. The hyperlinks are not necessarily still active today.
"Lewis, et al. v. Harris et al., Lambda Legal's reply brief in
opposition to defendants' motion to dismiss," 2003-MAY-8, at:
Peter Weiss, "Shocking results in gay marriage poll," The
Jersey Journal, 2003-MAY-5, at:
"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:
"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:
Joanna Grossman, "The New Jersey Domestic Partnership
Law" Its Formal Recognition of Same-Sex
Couples, and How It Differs From Other States' Approaches," FindLaw,
Geoff Mulvihill, "Gays see domestic partner law as
stopgap. They await ruling on right to marriage," Associated Press,
"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:
Copyright © 2002 to 2006 by Ontario Consultants on Religious
Originally written: 2002-JUL-2
Latest update: 2006-OCT-29
Author: B.A. Robinson