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Gay Marriage in New Jersey: Does Apartheid Survive?

In a recent blog post, I discussed how U.S. v. Windsor, 570 US 7 (2013), in striking down the Defense of Marriage Act (DOMA) laid into question what the New Jersey Legislature’s response might be to the New Jersey Supreme Court’s directive in Lewis v. Harris 188 N.J. 415 (2006). In  Lewis the Supreme Court of New Jersey stated that a legislative solution should be created to provide people in committed homosexual relationships with the same rights as those in committed heterosexual relationships, either by creating a separate but equal solution or by allowing same sex couples to marry.  The Legislature after Lewis chose the former approach which, prior to Windsor, gave mandated equal protection rights to same sex relationships, consistent with the Clinton mandate in DOMA, depriving same sex couples of the rights afforded to married people, even if the State in which they resided allowed them to marry.  The New Jersey Supreme Court mandated that same sex unions, although not entitled under the Constitution to be called a “marriage”, are still to be entitled to all of the rights and benefits of marriage as mandated by the Equal Protection clause.

If New Jersey calls the union of a same sex couple a marriage, then all of the Federal rights afforded to married heterosexual couples are likewise afforded to homosexual couples.  If the State refuses to allow same sex couples to marry, then their union would result in denial of Federally mandated rights and benefits.  Since the New Jersey Supreme Court has already ruled that a same sex union is entitled to equal protection under the law, and if the Federal Government affords Federal rights to married couples but not couples joined in a “Civil Union”, it logically follows that the New Jersey Legislature must allow same sex marriages as opposed to civil unions.

This was the conclusion of the Honorable Mary C. Jacobson, J.S.C. on Friday September 27, 2013, in response to a motion for summary judgment, in the matter of Garden State Equality v. Dow Decision, __ N.J. __ Super (LawDiv. 2013), that denying same sex couples the right to marry violated the Fourteenth Amendment of the United States Constitution.  This is a trial court level decision.  The Governor of New Jersey has indicated that the State will appeal Judge Jacobson’s  decision. Hopefully for the good of the State, the New Jersey Supreme Court will grant certification and directly answer this Constitutional question over the ability of same-sex couples to marry so that the matter can be laid to rest.  It seems clear after the New Jersey Supreme Court decision in Lewis v. Harris that the New Jersey Supreme Court will  affirm the very well written decision of Judge Jacobson.

The question is, where does this leave our State and the Nation?  The word “marriage” in the 21st century has significant difference than when the word was crafted by Western religion as a way to sanctify the union of a man and a woman for purposes of procreation.  Same sex couples can procreate with the assistance of modern medicine and they can adopt children.  They form family units every bit as valuable and stable as their heterosexual counterparts.  Significantly, in our overly regulated and governmentally controlled society, the word “marriage” describes a relationship that has attached to it economic and personal rights afforded to married people as a class which are denied to those who choose not to or are not permitted to marry.  Accordingly, over time the word marriage has acquired legal significance  as well as religious significance. In New Jersey, same sex couples do not have the choice to marry and gain meaningful federal rights.

It makes no sense to treat productive family units differently based on the gender of the companions.  It also makes no sense to allow same sex couples to marry in some but not in all states.  The Equal Protection clause of the United States Constitution assures all United States citizens that they will not be discriminated against based on  race, creed, religion, sex, or sexual orientation.  Lewis v. Harris mandates that a wrong be righted. Garden State Equality v. Dow correctly establishes that there is only one correct path available to right a very clear social injustice.

Since 1971, New Jersey has been one of the leading States in developing and advancing Family Law.  I have enjoyed watching the development of our law and commenting on the advancements for a quarter century.  As the leading commentator on New Jersey Family Law, adding the decisions in United States v. Windsor, Lewis v. Harris and now Garden State Equality v. Dow to my treatise on family law, The Yudes Family Law Citator, is a matter of personal pride.  I am the product of a Catholic education through law school, a life-long Republican, and I am married to my first wife for over forty wonderful years.  This issue is not political — or at least it ought not be!  How can anyone rationally argue that someone should be denied the same rights as their neighbor because of how they were born?  We are made stronger as a people by the diversity of our society.