Same-sex marriage in New Jersey
2006: NJ Supreme Court decision in Lewis et. al.
v. Harris et. al. requires Legislature to create
unions or marriages for same-sex couples.
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:
"We’ve been waiting 34 years to get married. All these years we’ve been
through so many of life’s joys and sorrows together — it really is long past
time that we should be able to marry."
2006-OCT-25: Supreme Court hands down ruling:
The New Jersey Supreme Court was faced with a conflict:
||Custom: Marriage in New Jersey had always been restricted to couples composed of
one man and one woman.
|| 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.
||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
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,
"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
The court ordered the state
legislature to create a law over the next 180 days giving equal rights to all couples either by:
|Granting same-sex couples the right to marry, as in Massachusetts.|
|Granting same-sex couples the right to enter into civil unions and
receive the same state benefits, protections and obligations as opposite-sex
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
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
Reactions by religious conservatives:
By accepting the superiority of the state constitution, the court was
attacked by many religious and social conservatives.
|The Family Research Council, a Fundamentalist Christian advocacy
"...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,
"... 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
"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
|LifeSiteNews.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.
CWA’s 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 state’s 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
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
"Yesterday in New Jersey, we had another activist court issue a ruling
that raises doubts about the institution of marriage. ... I believe it’s 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:
"It’s 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, it’s clear that hasn’t happened,
and so the scare tactic -- what motivated people to go to the polls -- just
isn’t 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
The following information sources were used to prepare and update the above
essay. The hyperlinks are not necessarily still active today.
- J.S. Spong, "Three cheers for the New Jersey Supreme Court," A new
Christianity for a New World newsletter, 2006-NOV-01.
- Geoff Mulvihill, "N.J. paves way for gay marriage: But mixed ruling
can't please everyone,"
Chicago Sun-Times, 2006-OCT-26, at:
- J. Albin, Syllabus, "Mark Lewis and Dennis Winslow, et al. v. Gwendolyn L. Harris, etc., et al. (A-68-05)." 2006-OCT-25,
- Tony Perkins, "Court Makes Legislature Their
Henchmen," Washington Update, Family Research Council, 2006-OCT-25.
- 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:
- Sheryl Stolberg, "G.O.P. Moves Fast to Reignite
Issue of Gay Marriage," New York Times, 2006-OCT-27, at:
- Geoff Mulvihill, "N.J. paves way for gay marriage: But mixed ruling
can't please everyone,"
Chicago Sun-Times, 2006-OCT-26, at:
Copyright © 2002 to 2007 by Ontario Consultants on Religious
Originally written: 2002-JUL-2
Latest update: 2007-FEB-20
Author: B.A. Robinson