Gay Marriage in New Jersey

On the 25th of October, the Supreme Court of the State of New Jersey issued their ruling on Mark Lewis and Dennis Winslow, et al. v. Gwendolyn L. Harris, etc., et al. (A-68-05), the Garden State’s equivalent of so many other suits for gay marriage. They reached a conservative 4-3 decision. Relatively conservative, that is.

In the 4-3 ruling, the majority determined that same-sex couples could not be denied the same rights as married, heterosexual couples and that the state legislature had 180 days to develop appropriate statutes to reflect this. The dissenters found that same-sex couples had a “fundamental right to participate in a state-sanctioned civil marriage” and that this right is embodied in the first paragraph of the first article of the state constitution. The text in question reads, “All persons are by nature free and independent, and have certain natural and unalienable 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.”

The entire development of this opinion is quite interesting, and as much as I would love to blame the court for being activist, this one isn’t entirely their fault. The State’s case against same-sex marriage rested on two arguments – the worst two arguments that exist for this debate. The first simply upholds the traditional definition. This is a poor argument for obvious reasons. The second argument is that retaining a traditional definition of marriage keeps New Jersey in agreement with other states’ marriage laws. Given the equal-rights civil unions in Vermont and gay marriage in Massachusetts, that argument holds little water, if any.

That’s all well and good, but the plaintiffs must still prove their case. How is overturning the traditional definition justified? After all, no individual is denied the right to marry; rather the sex of one’s spouse is restricted. The Supreme Court of New Jersey has developed a test similar to that of the Supreme Court of the United States when dealing with issues of liberty (the 14th Amendment on the national level). In the case of Article 1, Paragraph 1, as quoted above, the test in New Jersey requires that the ‘liberty of interest’ be two things. One, is that it must be ‘clearly defined’, second is that it must be ‘objectively and deeply rooted in traditions, history and the conscience of the people of the state.’ I’m going to say that this test alone wipes out the argument of the three dissenters. How they can claim, with any judicial integrity, that same-sex marriage is rooted in the history and tradition of New Jersey, is beyond me. For those who are interested, the dissenters circumvent the issue and claim that individual liberty in selecting a partner for a state-sanctioned civil marriage is the case. I think this is still absurd because it over-simplifies the entire issue. This same line of reasoning can be used to justify bigamy and polygamy, both of which are profoundly dangerous socially.

Moving back to the actual majority opinion, the court overall finds that the ‘liberty’ of same-sex marriage fails the test. I applaud the ability of the New Jersey Supreme Court to finally sort-of follow the law for once. After the Abbott Districts and the Mount Laurel decisions (familiar stuff to fellow Jerseyans and interesting trivia for you out-of-staters), I would have expected less restraint. That lack of restraint does, of course, surface, slightly deeper into the decision. The court instead derives a right to equal benefits for same-sex and heterosexual couples from two points. The first is that persons of homosexual orientation are protected from discrimination in the state of New Jersey. The second is that the court finds it illogical and unreasonable to grant equal rights to all citizens, regardless of orientation, and then deny rights on the basis of orientation. I personally do not accept this argument. The discrimination is not based in orientation and the rights afforded to individuals are not biased. For all persons in the state, prior to this decision, the right to marry and the benefits thereof were restricted by age, sex and number. Whether fair or not, the right to marry is distributed equally. The court is asked to determine if that is a relevant distinction. In the case of Loving v Virginia (1967), the Supreme Court of the United States struck down laws which segregated marriage by race because this was not deemed a relevant distinction. The failure of the State to argue for and the failure of the Court to recognize the morally relevant distinction between marriage and same-sex couples is troubling.

The case avoids sociological data, ignores the differences in family structure as social tools, and is blind to the upbringing of children, etc. For a state so conscious of social impacts, this decision totally ignores any effect beyond that on individual choice. The obvious question is “What is the purpose of marriage?” I would be inclined to think that any legalistic discussion would look at the intent and effect of a law, especially when making far-ranging inferences about its interpretation. The Supreme Court of New Jersey failed in that respect. It has forgotten that marriage is a civil and social institution and restricted its analysis so much as to be nearly useless.

And, not to be forgetful, marriage is deeply grounded in religion. That, too, has been completely ignored by the Court in its analysis. Here I am decidedly not overstepping some Church-State dividing line. Immediately preceding the first paragraph of the first article, the Constitution of New Jersey states, “We, the people of the State of New Jersey, grateful to Almighty God for the civil and religious liberty which He hath so long permitted us to enjoy, and looking to Him for a blessing upon our endeavors to secure and transmit the same unimpaired to succeeding generations, do ordain and establish this Constitution.” A document so rooted in faith and religion certainly would not permit individuals from lifestyle choices, such as same-sex partnerships, but it surely would not endorse them with the blessing of the State and of Almighty God.