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Same-sex marriage in New Jersey

2006: NJ Supreme Court decision in Lewis et. al.
v. Harris et. al.
requires Legislature to create
civil unions or marriages for same-sex couples.

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Sponsored link.


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Earlier information about the case

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2006-APR-01: Supreme Court appeal is heard:

The Lewis et. al. v. Harris et. al. lawsuit case was appealed to the Supreme Court of New Jersey. Arguments were heard on 2006-FEB-15.

Plaintiffs Chris Lodewyks and Craig Hutchison said:

"Weíve been waiting 34 years to get married. All these years weíve been through so many of lifeís joys and sorrows together ó it really is long past time that we should be able to marry."

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2006-OCT-25: Supreme Court hands down ruling:

The New Jersey Supreme Court was faced with a conflict:

bullet Custom: Marriage in New Jersey had always been restricted to couples composed of one man and one woman.
bullet Legislation: There are 850 state laws which mention 'husband,' 'wife,' 'spouse,' or some form of the word 'marry.' They imply, but do not precisely state, that marriage is restricted to couples made up of one man and one woman. There is no law that specifically restricts marriage to one-man and one woman.
bullet Constitution: The state constitution requires New Jersey to guarantee its  citizens equal protection of the laws, regardless of sex. This would seem to imply that anyone can enter into a loving, committed relationship with either a person of the same sex or opposite sex and receive the same state benefits, and obligations. Further, their children should have equal protection, whether their parents are of the same sex or opposite-sex Giving opposite-sex couples rights not enjoyed by same-sex couples would be unconstitutional.

One fact that has not been generally reported either by the media or by religious groups is that the decision by the New Jersey Supreme Court on the need for equal rights for same-sex couples was unanimous. The court recognized the existence of conflicts between the state constitution, custom, and state law. They logically determined that the constitution must rule. Thus, by a 7 to 0 vote, the court ruled that the constitution overruled both the implications of state law and custom. They determined same-sex couples are entitled to the same rights as opposite-sex couples. No longer could the state grant special rights to committed opposite-sex couples while denying those same rights to same-sex couples. J.S. Spong, retired bishop of the Episcopal Church, USA commented:

"Every legally recognized New Jersey couple must now receive equality under the law as guaranteed by the equal treatment provisions of the state and national constitutions." 1

The magnitude of this victory does not seem to be appreciated by those supporting SSM, those opposing SSM, and the media. The court's decision represents a watershed in the battle for "liberty and justice for all" in the United States.

The 4 to 3 split widely reported among the justices was on a different matter: whether it:

"was the Court's right or the responsibility of the legislature to define these equal partnerships as marriages. [The majority] ... decided that the Court had the responsibility to mandate equality, but that the legislature had the responsibility to name it." 1

Justice Barry T. Albin wrote for the four-member majority, saying that to deny "committed same-sex couples" the full "financial and social benefits and privileges" given to opposite-sex married couples "bears no substantial relationship to legitimate governmental purpose." He wrote:

"Plaintiffs are seven same-sex couples who have been in permanent committed relationships for more than ten years. Each seeks to marry his or her partner and to enjoy the legal, financial, and social benefits that marriage affords. After being denied marriage licenses in their respective municipalities, plaintiffs sued challenging the constitutionality of the State's marriage statutes. ..."

"... under the equal protection guarantee of ... the New Jersey Constitution, committed same sex couples must be afforded on equal terms the same rights and benefits enjoyed by opposite-sex couples under the civil marriage statutes. ... Although we cannot find that a fundamental right to same-sex marriage exists in this state, the unequal dispensation of rights and benefits to committed same-sex partners can no longer be tolerated under our state Constitution." 2

The court ordered the state legislature to create a law over the next 180 days giving equal rights to all couples either by:

bulletGranting same-sex couples the right to marry, as in Massachusetts.
bulletGranting same-sex couples the right to enter into civil unions and receive the same state benefits, protections and obligations as opposite-sex couples.

Their reasoning appears to be identical to that offered by the Vermont supreme court on 1999-DEC-20 who also decided that the marriage law in their state violated equal treatment sections of their state constitution and also discriminated unfairly against same-sex couples. That court required the state legislature to either allow same-sex couples to marry, or create some sort of parallel civil union arrangement for same-sex couples. They chose the latter route.

A syllabus is online. 3

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Reactions by religious conservatives:

By accepting the superiority of the state constitution, the court was attacked by many religious and social conservatives.

bulletThe Family Research Council, a Fundamentalist Christian advocacy group, said:

"...the New Jersey State Supreme Court ruled today that homosexual couples are entitled to the same rights as married heterosexuals--but made the legislature their henchmen by ordering the legislature to resolve whether it takes the form of same-sex marriage or civil unions. In other words, the legislature has the non choice of creating same-sex marriage or marriage of same-sex persons called civil unions. This decision is nothing more than an act of veiled judicial activism and is completely out of step with the recent string of court decisions which upheld the basis for traditional marriage in promoting the well-being of children. ... The legislature should ignore the court's ruling and follow the lead of 20 other states that have already passed amendments to protect this sacred institution. Otherwise, the legislature will become nothing more than the lackeys of an activist judiciary." 4

The FRC appears to be urging legislators to violate their oath of office, which calls on them to follow the state constitution, and to ignore the instructions of the New Jersey Supreme Court in order to prevent same-sex couples from gaining equal rights. That is a sobering thought.

In their 2006-OCT-30 FRC Action newsletter, they suggested that the Bible should overrule the state constitution. While discussing the NOV-07 election, they commented:

"... the prime issues - issues that transcend not only political parties but both time and place - are the matters of hearth and home: the sanctity of life, the meaning of marriage, and the survival of the family. We see these 'issues' as rooted in eternal values, as rights and institutions that are part of our endowment from the Creator. The significance of these issues was underscored again just last week when the Supreme Court of New Jersey became the third state high court in the nation to strike down man-woman marriage."

"Relying on a tortured reading of the New Jersey state constitution and ignoring the well-being of children and the family, the court ordered the New Jersey legislature to create the equivalent of traditional marriage and award it to same-sex couples. In a display of raw judicial power, the voice of the people, acting through their elected officials, was silenced and thrust aside in the pursuit of a liberal agenda."

The FRC reference to the court striking "down man-woman marriage" seems to be an error. An opposite-sex loving, committed, engaged couple can still purchase a marriage license in New Jersey, get married, have their marriage registered, and enjoy all the benefits and obligations of the state's 850 laws mentioned above. The court decision has not changed their status. The only difference is that the court has determined that loving, committed, engaged same-sex couples should receive the equal treatment under the law guaranteed by the state constitution and be able to go through the same or a similar process. The FRC's suggestion that children will be harmed as a result of the additional protections and recommendations to be given to same-sex couples does not seem to be supported by the facts. A number of mental health associations have stated that children of same-sex couples, on average, are as mentally healthy as are children of opposite-sex couples.

bulletLifeSiteNews.com, a Roman Catholic advocacy group, wrote that:

"Concerned Women for America, the organization that had campaigned to preserve [traditional] marriage in New Jersey, said the case was a 'textbook' example of an activist group using the 'agenda-driven' judges and courts to overturn and subvert the legislative process.

CWAís Chief Counsel Jan LaRue said that the court ignored 28 statute sections that include references to the term 'married woman' and 'married man' and the term 'husband and wife.'

LaRue warned that because New Jersey has no residency requirement for marriage the state was carefully chosen as a test case. "If the legislature caves in to the court, it could open the door for lawsuits challenging every stateís marriage law'." 5

Massachusetts already allows same-sex couples who are residents of the state to marry. However they do not allow same-sex couples who come from states that do not allow SSM to visit Massachusetts and get married there. An early 20th century state law is still on the books. It was designed to prevent inter-racial couples who lived in states that prohibited inter-racial marriage from coming to Massachusetts, marrying there, and then returning home and asking that their marriages be recognized. If New Jersey were also to allow SSM, it could open the floodgates and lead to legal challenges which would eventually require all states to recognize same-sex marriage couples.

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Reaction to the court decision:

The debate over same-sex marriage which played such a major role in the 2004 elections had been largely moribund until the New Jersey Supreme Court decision. The Republican Party has brought the topic into focus again. The decision will probably increase voter turnout among religious and social conservatives, particularly in the eight states where anti-SSM constitutional amendments are on the ballot: Arizona, Colorado, Idaho, South Carolina, South Dakota, Tennessee, Virginia, and Wisconsin. Social and religious conservatives in those states are far more likely to vote Republican for the various candidates running for the Senate and House.

President Bush told those attending a luncheon at the Iowa State Fairgrounds on OCT-26:

"Yesterday in New Jersey, we had another activist court issue a ruling that raises doubts about the institution of marriage. ... I believe itís a sacred institution that is critical to the health of our society and the well-being of families, and it must be defended."

However, Charles E. Schumer (D-NY) said:

"Itís not going to be close to the issue it was in 2004. ... In 2004 they scared people that the court ruling in Massachusetts would just change America and families dramatically. By 2006, itís clear that hasnít happened, and so the scare tactic -- what motivated people to go to the polls -- just isnít there." 6

Rominger Legal reported:

"Lara Schwartz, legal director of Human Rights Campaign, said if legislators have to choose between civil unions and marriage, it is a no-lose situation for gay couples. 'They get to decide whether it's chocolate or double-chocolate chip,' Schwartz said."

"Steven Goldstein, executive director of Garden State Equality, New Jersey's main gay rights group, said his organization wants nothing short of marriage. 'We get to go from the back of the bus to the middle of the bus,' he complained." 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. J.S. Spong, "Three cheers for the New Jersey Supreme Court," A new Christianity for a New World newsletter, 2006-NOV-01.
  2. Geoff Mulvihill, "N.J. paves way for gay marriage: But mixed ruling can't please everyone,"
    Chicago Sun-Times, 2006-OCT-26, at: http://www.romingerlegal.com/
  3. J. Albin, Syllabus, "Mark Lewis and Dennis Winslow, et al. v. Gwendolyn L. Harris, etc., et al. (A-68-05)." 2006-OCT-25, at: http://www.judiciary.state.nj.us/
  4. Tony Perkins, "Court Makes Legislature Their Henchmen," Washington Update, Family Research Council, 2006-OCT-25.
  5. Hilary White, "New Jersey Supreme Court Orders State to Give Homosexuals All Benefits of 'Marriage' Except the Name 'Marriage.' Leaves Decision of What to call such Unions up to Legislature.," LifeSiteNews.com, 2006-OCT-25, at: http://www.lifesite.net/
  6. Sheryl Stolberg, "G.O.P. Moves Fast to Reignite Issue of Gay Marriage," New York Times, 2006-OCT-27, at: http://www.nytimes.com/
  7. Geoff Mulvihill, "N.J. paves way for gay marriage: But mixed ruling can't please everyone,"
    Chicago Sun-Times, 2006-OCT-26, at: http://www.romingerlegal.com/

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

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Copyright © 2002 to 2007 by Ontario Consultants on Religious Tolerance
Originally written: 2002-JUL-2
Latest update: 2007-FEB-20
Author: B.A. Robinson

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