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

Elections

In Defense of the Electoral College

Senator Elizabeth Warren has joined a growing chorus within the Democratic party in calling for the abolition of the Electoral College. Speaking at a forum in Mississippi on Monday night, Warren said that she hoped to ensure that “every vote matters” and proposed that “the way we can make that happen is ... Read More
Elections

Stick a Fork in O’Rourke

If, as I wrote last week here, Joe Biden may save the Democratic party from a horrible debacle at the polls next year, Beto O’Rourke may be doing the whole process a good turn now. Biden, despite his efforts to masquerade as the vanguard of what is now called progressivism, is politically sane and, if ... Read More
National Security & Defense

In Defense of the Iraq War

Today is the 16th anniversary of the invasion of Iraq, and Twitter is alive with condemnations of the conflict -- countered by precious few defenses. Yet I believed the Iraq War was just and proper in 2003, and I still believe that today. When Donald Trump condemned the war during the 2015 primary campaign and ... Read More
Elections

Beto-mania and Our Cult of Personality Politics

Robert “Beto” O’Rourke’s biggest fans and supporters insist he is a forward-thinking, future-oriented visionary, but no contender for the Democratic nomination feels more familiar than the former three-term congressman from El Paso. That’s because he has the highest combined score in both déjà vu ... Read More