NY Times, October 25, 2006
New Jersey Court Backs Rights for Same-Sex Unions
By LAURA MANSNERUS
The State Supreme Court in New Jersey said today that same-sex couples
are entitled to "the same rights and benefits enjoyed by opposite-sex
couples under the civil marriage statutes."
But the court, in its 4-3 ruling, said that whether that status should
be called marriage, or something else, "is a matter left to the
The court's eagerly awaited decision found that an arrangement akin to
that in Vermont, which authorizes civil unions between same-sex
couples but does not call them marriages, would satisfy the New Jersey
constitution's guarantee of equal protection under the law.
The court gave the legislature a six-month deadline to enact the
necessary legislation to provide for same-sex unions with rights equal
to those of married couples.
The decision leaves Massachusetts as the only state to authorize
same-sex marriages as such. Since the Massachusetts Supreme Court held
in 2003 that that full marriage rights were required for all couples
under that state's constitution, gay-rights advocates have suffered a
string of defeats in other states. The Court of Appeals of New York
rejected a similar argument in July.
Steven Goldstein, the chairman of the gay-rights group Garden State
Equality, said the court's decision was disappointing.
"Those who would view today's ruling as a victory for same sex couples
are dead wrong," he said. "Half-steps short of marriage — like New
Jersey's domestic-partnership law and also civil union laws — don't
work in the real world."
Mr. Goldstein promised an immediate campaign to change the state law.
According to the 90-page description of their ruling published by the
court today, the justices acknowledged that "times and attitudes have
"There has been a developing understanding that discrimination against
gays and lesbians is no longer acceptable in this state," they wrote.
But the justices wrote that their mission in this case was a narrow one.
"At this point, the Court does not consider whether committed 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," the court wrote.
"Cast in that light, the issue is not about the transformation of the
traditional definition of marriage, but about the unequal dispensation
of benefits and privileges to one of two similarly situated classes of
The justices went on to say that this case and other federal cases
cited by the plaintiffs "fall far short" of establishing a fundamental
right to marriage, which is an institution the court termed "deeply
rooted in the traditions, history, and conscience of the people of
"Despite the rich diversity of this state, the tolerance and goodness
of its people, and the many recent advances made by gays and lesbians
toward achieving social acceptance and equality under the law, the
Court cannot find that the right to same-sex marriage is a fundamental
right under our constitution," the court wrote.
But the court also said that denying same sex couples "the financial
and social benefits and privileges given to their married heterosexual
counterparts bears no substantial relationship to a legitimate
Chief Justice Deborah Poritz, who is retiring from the New Jersey high
court today, said the majority didn't go far enough, and that gay
couples have the "fundamental right to participate in a
state-sanctioned civil marriage," according to Bloomberg News.
She and two other justices concurred in part and dissented in part
with the majority opinion written by Justice Barry Albin.
Courts in many other states have rejected similar lawsuits by same-sex
couples, ruling, as the Court of Appeals of New York did in July, that
only the legislature can define marriage or redefine it to include
No state legislature has done so. The California legislature came
closest, passing a bill in 2005 that would have redefined marriage as
"between persons," permitting same-sex couples to marry, but the bill
was vetoed by Governor Arnold Schwarzenegger.
To the contrary, nineteen states have adopted constitutional
amendments explicitly banning same-sex marriage. Most others have
statutory bans, but New Jersey and four other states have neither.
New Jersey is one of several states that recognize domestic
partnerships between unmarried people irrespective of sex, which
afford limited rights and benefits; Vermont and Connecticut authorize
civil unions, which afford more legal protections.
In part because the New Jersey Supreme Court is known as relatively
liberal and, above all, independent, the lawsuit here garnered
The case was brought by seven gay and lesbian couples who have been
together from 14 to 35 years and who were denied marriage licenses.
Five of them have children.
The trial-level and lower appellate courts rejected their claim that
the state constitution afforded them the right to marry as
heterosexual couples do. The Appellate Division said in June 2005 that
marriage between members of the same sex was neither a fundamental
right under the constitution nor one covered by its equal- protection
The state Supreme Court heard the case, known as Lewis v. Harris, on Feb. 15.
Under New Jersey's domestic partnership law, enacted in 2004, same-sex
partners may make critical medical decisions for one another, for
example, and must be offered the same health coverage by insurers that
is offered to spouses.
The law was approved by the Legislature with little dissent, and
signed by then-Gov. James E. McGreevey — who at the time did not
support fully legalized gay marriage, even though he would resign
several months later with the statement, "I am a gay American."
Mr. Goldstein was among those who celebrated the domestic partnership
law, but he would later find that it fell short of expectations. He
said today that "hospitals and other employers have told
domestic-partnered couples across New Jersey: We don't care what the
domestic partnership law says, you're not married."
In the last few years, public opinion has become more accepting of gay
marriage, at least in New Jersey. A Rutgers-Eagleton poll of New
Jersey residents taken in June found that 50 percent said they
supported allowing same-sex couples to marry legally, while 44 percent
were opposed. (The margin of error was plus or minus 4 percentage
points.) When the poll asked the same question in 2003, 43 percent of
respondents supported legal recognition for gay marriage and 50
percent were opposed.
Still, conservative opposition has also organized, culminating in
proposed constitutional amendments on the ballot in 11 states in 2004.
All were approved overwhelmingly.
Last summer, the New York Court of Appeals ruled in a 4-to-2 decision
that it would not depart from the state's century-old law defining
marriage as the union of a man and a woman. Chief Judge Judith S. Kaye
wrote, in a sharply worded dissent, that "a history or tradition of
discrimination — no matter how entrenched — does not make the