Procedural Posture

Seven same-sex couples brought suit challenging New Jersey’s laws restricting civil marriage to the union of a man and a woman. They argued that these laws violated the liberty and equal protection guarantees of the New Jersey Constitution. When the seven couples applied for marriage licences, the licensing officials told them that the law did not permit same-sex couples to marry. They then filed a complaint in the Superior Court. The Superior Court granted summary judgment to the defendants and the plaintiffs appealed to the Appellate Division. A divided three-judge panel affirmed the Superior Court’s decision and the plaintiffs appealed to the Supreme Court.

Issue

Whether same-sex couples have a fundamental right to marry that is protected by the liberty guarantee of the State Constitution; whether denying same-sex couples the right to marry violates the equal protection guarantee of the State Constitution.

Domestic Law

Constitution of New Jersey, Article 1, Paragraph 1 (“All persons are by nature free and independent, and have certain natural and inalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness”).

Reasoning of the Court

Majority Opinion

The State of New Jersey relied on tradition to defend the constitutionality of its marriage laws. It did not argue that limiting marriage to heterosexual couples was necessary for either procreative purposes or to provide an optimal environment for raising children, although these policy justifications were submitted by some amici curiae. The State contended instead that the long-held historical view that marriage was between a man and a woman was a sufficient basis to uphold the constitutionality of the marriage statutes. Any change to the definition of marriage should come from the democratic process.

To answer the liberty claim, the Court considered that it was required to determine whether “the right of a person to marry someone of the same sex is so deeply rooted in the traditions and collective conscience of our people that it must be deemed fundamental” under the State Constitution. The liberty analysis was thus the same as the one under the Fourteenth Amendment of the Federal Constitution, which requires that a fundamental right be deeply rooted in traditions and collective conscience. The Court rejected the dissent’s argument, that it had framed the question too narrowly, in terms of the right of people to marry individuals of the same sex, rather than in terms of the broader right to marry a person of one’s own choice. “That expansively stated formulation, however, would eviscerate any logic behind the State’s authority to forbid incestuous and polygamous marriages.” Framed as the right to marry a person of the same sex, the question was easily answered. Nothing in the traditions or history or conscience of the people of the State suggested that the right to marry a person of the same sex was a fundamental right.

With respect to the equal protection claim, the Court considered whether the marriage laws’ denial to same-sex couples of both “the right to and the rights of marriage afforded to heterosexual couples offend the equal protection principles of our State Constitution”. Equal protection jurisprudence required that, in distinguishing between two classes of people, legislation must bear “a substantial relationship to a legitimate governmental purpose”. A court must weigh the nature of the right at stake, the extent to which the challenged statutory scheme restricts that right, and the public need for the statutory restriction. The Court considered that this involved the resolution of two questions: whether committed same-sex couples had a constitutional right to the benefits and privileges afforded to married heterosexual couples; and, if so, whether they had a constitutional right to have their permanent committed relationship recognised by the name of marriage.

The Court reviewed the rights afforded to married couples but denied to committed same-sex couples: a surname change without petitioning the court; ownership of property as tenants by the entirety, which allowed for automatic transfer of ownership on death; survivor benefits under the workers’ compensation law; back wages owed to a deceased spouse; compensation to spouses, children and other relatives of homicide victims; free tuition or tuition assistance at universities for surviving spouses and children of certain employers; tax deductions for spousal medical expenses; and testimonial privileges given to the spouse of an accused in a criminal action. It concluded that committed same-sex couples and their children were not afforded the benefits and protections available to similar heterosexual households.

The Court emphasised that this inquiry was not about whether same-sex couples should be allowed to marry “but only whether those couples are entitled to the same rights and benefits afforded to married heterosexual couples”. Rather than seeking to transform the traditional definition of marriage, the Court was concerned with “the unequal dispensation of benefits and privileges to one of two similarly situated classes of people”. Significantly, the State did not proffer any legitimate public need for depriving same-sex couples of these benefits and privileges. Its only argument concerned the traditional definition of marriage. The Court concluded that, 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 married opposite-sex couples”.

However, the Court did not specify whether the legislature should amend the marriage laws to include same-sex structures or create a separate scheme, such as civil unions. The plaintiffs argued that a parallel legal structure would be a “separate but equal” classification that would offend the equal protection guarantee. They sought “not just legal standing, but also social acceptance”. The Court disagreed.

We are mindful that in the cultural clash over same-sex marriage, the word marriage itself – independent of the rights and benefits of marriage – has an evocative and important meaning to both parties. Under our equal protection jurisprudence, however, plaintiffs’ claimed right to the name of marriage is surely not the same now that equal rights and benefits must be conferred on committed same-sex couples.

In opting for deference to the legislature, the Court stated: “[O]ur role here is limited to constitutional adjudication, and therefore we must steer clear of the swift and treacherous currents of social policy when we have no constitutional compass with which to navigate”.

Concurring and Dissenting Opinion (per Chief Justice Poritz)

Chief Justice Poritz, joined by Justices Long and Zazzali, wrote separately. He concurred in the majority’s determination that denying the rights and benefits of marriage violated the equal protection guarantee. He disagreed with the decision to distinguish those rights and benefits from the title of marriage. He also dissented from the majority’s conclusion that no fundamental right to same-sex marriage was encompassed within the concept of liberty guaranteed by Article I, Paragraph 1 of the State Constitution. He considered that the Court had framed the question too narrowly. “Of course there is no history or tradition including same-sex couples; if there were, there would have been no need to bring this case to the courts.” He noted that in the case of Loving v. Virginia, which struck down bans on interracial marriage, the question was not framed in terms of whether a right to interracial marriage existed.

On the question of legislative deference, C.J. Poritz pointed out that the plaintiffs had not sought the relief provided and that the Court had ignored the “deep and symbolic significance to them of the institution of marriage”. The plaintiffs sought not only the tangible benefits of civil marriage but also the intangible benefits of marriage.

Moreover, the possibility that the legislature might amend the marriage statutes to recognise the right of same-sex couples to marry did not relieve the Court of its responsibility to answer difficult constitutional questions. He stated: “[D]eference to the Legislature is a cardinal principle of our law except in those cases requiring the Court to claim for the people the values found in our Constitution. … Our role is to stand as a bulwark of a constitution that limits the power of government to oppress minorities.” The question of access to civil marriage was not a matter of social policy but of constitutional interpretation.

Postscript

The Legislature of New Jersey adopted the Civil Union Act in December 2006. It provided in part: “‘Civil union’ means the legally recognised union of two eligible individuals of the same sex established pursuant to this act. Parties to a civil union shall receive the same benefits and protections and be subject to the same responsibilities as spouses in a marriage.” The Civil Union Act also established a Civil Union Review Commission to evaluate the new law. The final report of the Commission, released in December 2008, found that the separate categorisation created by the Civil Union Act invited and encouraged unequal treatment of same-sex couples and their children. In 2010, the twelve plaintiffs filed a motion in the New Jersey Supreme Court claiming that they were still denied the full rights and benefits enjoyed by heterosexual married couples. The Court denied the motion but without prejudice to the plaintiffs should they choose to file a claim in the trial court for the development of an appropriate trial-like record.

Lewis v. Harris, Supreme Court of New Jersey, United States (full text of judgment, PDF)