The Republic of T.

Black. Gay. Father. Vegetarian. Buddhist. Liberal.

NJ Court: Equal Protection for Same-Sex Couples

Well, it’s done. The New Jersey Supreme Court ruled, in a 3 – 4 decision, that the state must equally recognize same-sex couples, but kicked it back to the legislature to decide how it’s to be done. You can read the decision here.

Only rights that are deeply rooted in the traditions, history, and conscience of the people are deemed to be fundamental. 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. With this State’s legislative and judicial commitment to eradicating sexual orientation discrimination as our backdrop, we now hold that denying rights and benefits to committed same-sex couples that are statutorily given to their heterosexual counterparts violates the equal protection guarantee of Article I, Paragraph 1. To comply with this constitutional mandate, the legislature must either amend the marriage statutes to include same-sex couples or create a parallel statutory structure, which will provide for, on equal terms, the rights and benefits enjoyed and burdens and obligations borne by married couples.

They actually said no to marriage, or at least that they couldn’t find a fundamental right to same-sex marriage in the state constitution. On the other hand, the equal protection clause in their constitution requires they find a way to give same-sex couples the benefits that married heterosexuals enjoy. In other words, it’s sort of what happened in Massachusetts, and so far the world hasn’t ended. So, New Jersey (and not Marilyn Musgrove) will figure out how equality is going to work in New Jersey.

It’s worth noting that the chief justice in New Jersey, Deborah Poritz (who dissented at least in part with the decision), is a Republican who was appointed by a Republican governor, Christine Todd Whitman.

As it turns out, according to John at Americablog, the ruling isn’t all that radical. It’s actually pretty close to the president’s position.

“President Bush said in an interview this past weekend that he disagreed with the Republican Party platform opposing civil unions of same-sex couples and that the matter should be left up to the states.”

“Mr. Bush has previously said that states should be permitted to allow same-sex unions, even though White House officials have said he would not have endorsed such unions as governor of Texas. But Mr. Bush has never before made a point of so publicly disagreeing with his party’s official position on the issue.”

“In an interview on Sunday with Charles Gibson, an anchor of “Good Morning America” on ABC, Mr. Bush said, “I don’t think we should deny people rights to a civil union, a legal arrangement, if that’s what a state chooses to do so.” ABC, which broadcast part of the interview on Monday, is to broadcast the part about civil unions on Tuesday.”….

“I view the definition of marriage different from legal arrangements that enable people to have rights. And I strongly believe that marriage ought to be defined as between a union between a man and a woman. Now, having said that, states ought to be able to have the right to pass laws that enable people to be able to have rights like others.

I don’ t know much about the New Jersey legislature, but I remember back when Laurel Hester’s story was in the news it turned out the reason her story was news was because of the New Jersey legislature’s trend towards compromise yielded a domestic partnership statute that allowed cities, etc., to establish domestic partner benefits but didn’t require them to do so. And Laurel Hester’s county government opted not to do so. The ruling noted that as well.

The Domestic Partnership Act has failed to bridge the inequality gap between committed same-sex couples and married opposite-sex couples. Significantly, the economic and financial inequities that are borne by same-sex domestic partners are also borne by their children. Further, even though same-sex couples are provided fewer benefits and rights by the Act, they are subject to more stringent requirements to enter into a domestic partnership than opposite-sex couples entering a marriage.

All that is to say my guess is that the New Jersey legislature will go the route of civil unions, since the court has left it up to them. So, it’s not exactly a ruling in favor of same-sex marriage. It’s a ruling in favor of same-sex couples having the rights and benefits of marriage. Which only seems fair since, as I’ve noted before, we’re already assuming the “burdens and obligations” borne by married couples, and the economic and financial inequities mentioned in the ruling mean that we’re also underwriting the rights and benefits of heterosexual married couples while assuming the same “burdens and obligations.

So now it falls to the New Jersey legislature to come up with something that does what the ruling requires. And if they need a cheat sheet or quick reference on the rights and protections involved, I’ve already put one together for them.

It’s pro-fairness or pro-equality ruling, if anything; one that even people who don’t necessarily support same-sex marriage might be able to live with, if recent polls are any indication. Opposition to same-sex marriage has dropped significantly, and younger Americans (read future voters) are more supportive of same-sex marriage or equal rights and benefits than their elders.

Besides, it’s not a top issue for most Americans anyway (though a poll shows 54% supporting civil unions), and less of a sure thing for the Republicans. So maybe, just maybe, New Jersey will be left alone to figure out how to make their state more equitable to same-sex citizens and their families. That will most likely be good for the state. It will definitely be good for gay families in New Jersey.

And that’s the point.


  1. I think that Aravosis got a little sloppy. Bush’s position was that he would have opposed civil unions as a governor of Texas but that states should be free to have civil unions, but only if they choose to. The NJSC’s position is that same-sex civil unions with the tangible benefits of marriage are the rock-bottom requirement, and that New Jersey may (but need not) provide for “marriage” for same-sex couples additionally To me these sound very different.

    I suspect strongly that the majority opinion, which in this case was more cautious and conservative than the pro gay-marriage dissent/concurrence, will be the majority opinion in the Maryland case of Deane v. Conaway, but that the dissent in that case will be a true conservative opinion (i.e. for the State against the Plaintiffs.) The New Jersey Supreme Court has a reputation as a radical court; while its politics are slightly more conservative than Maryland’s, its jurisprudence is far more progressive than Maryland’s Court of Appeals. I may be wrong, we shall see.

  2. Hillary Clinton, who was against gay marriage in 2000, now says that her opinion has changed, ‘evolved’ as she words it. She now supports full equality but says if you want to call it marriage, then you’ll just hit a problem, so she’s basically saying exactly what the NJ Supreme Court says. She also says that when the inevitable gay marriage bill comes to NY, she won’t fight it.

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