Bench Memos

New Jersey Ruling on Same-Sex Marriage

Here’s my best quick effort at a purely descriptive summary of today’s New Jersey Supreme Court ruling on same-sex marriage.  (I hope to offer some commentary in a follow-up post.)


1.  All seven justices agreed that the New Jersey constitution requires that same-sex couples be afforded on equal terms the same rights and benefits enjoyed by opposite-sex couples under New Jersey’s marriage laws.  The majority opinion by Justice Albin (joined by Justices LaVecchia, Wallace, and Rivera-Soto) would permit the New Jersey legislature to create a parallel legal structure for same-sex couples that does not bear the title of “marriage”.  The partial dissent by Chief Justice Poritz (joined by Justices Long and Zazzali) would require that the title of “marriage” be available to same-sex couples.


2.  Here is a summary of the majority opinion, with citations to the relevant pages of the slip opinion:


            a.  The right to marry can be distinguished from the rights of marriage.  (20)


            b.  The right to marry a person of the same sex is not a fundamental right under the New Jersey constitution.  (21-34)


            c.  New Jersey’s marriage laws violate the New Jersey constitutional guarantee of equal protection (which the New Jersey courts have read into the provision stating that “All persons are by nature free and independent, and have certain natural and unalienable rights ….”)


                        i.  Under New Jersey’s equal protection jurisprudence, a statute that distinguishes between two classes of people must bear a substantial relationship to a legitimate governmental purpose.  (35)


                        ii.  Through judicial decisions and legislative enactments, New Jersey has expanded the rights of gays and lesbians.  (37-43)


                        iii.  New Jersey’s Domestic Partnership Act does not make available to same-sex couples the full benefits and privileges available through marriage.  (43-48)


                        iv.  The State does not argue that traditional marriage is needed to encourage procreation or to create the optimal living environment for children.  (48)


                        v.  There is no rational basis for giving gays and lesbians full civil rights in their status as individuals but not extending them the full benefits of marriage.  (49-51)


                        vi.  An interest in uniformity with the laws of other states does not justify New Jersey’s system of disparate treatment.  (51-57)


            d.  The shared societal meaning of “marriage” has always been the union of a man and a woman.  To alter that meaning would render a profound change.  That should be left to the democratic processes.  (57-64)


             e.  The legislature shall have 180 days either to amend the marriage statutes or to enact a parallel statutory structure.  (64-66)

Most Popular

Law & the Courts

Censure Dianne Feinstein

Regardless of the fate of Brett Kavanaugh’s nomination, the Senate should censure the ranking Democratic member of the Judiciary Committee, Dianne Feinstein. Her deception and maneuvering, condemned across the political spectrum, seriously interfered with the Senate’s performance of its constitutional duty to ... Read More

Are We on the Verge of Civil War?

Americans keep dividing into two hostile camps. It seems the country is back to 1860 on the eve of the Civil War, rather than in 2018, during the greatest age of affluence, leisure, and freedom in the history of civilization. The ancient historian Thucydides called the civil discord that tore apart the ... Read More
Law & the Courts

It’s a Set-up

In my column yesterday, I contended that the unverifiable sexual-assault allegation against Judge Brett Kavanaugh bore “all the hallmarks of a set-up.” I based that assessment on the patently flimsy evidence, coupled with Senate Democrats’ duplicitous abuse of the confirmation-hearing process. To repeat ... Read More