In the Public Square: Responsible Voices on Family Issues
Analysis of New Jersey Decision
by William C. Duncan
Yesterday, the New Jersey Supreme Court unanimously held that New Jersey could not treat marriage between a man and a woman any differently from the partnership of same-sex couples.
While the court stopped short of ordering the state to issue marriage licenses to same-sex couples as Massachusetts’ highest court had done, it announced that “denying rights and benefits to committed same-sex couples that are statutorily given to their heterosexual counterparts violates the equal protection guarantee” of the state constitution. So, “the Legislature must either amend the marriage statutes to include same-sex couples or create a parallel statutory structure, which will provide for, on equal terms, the rights and benefits enjoyed and burdens and obligations borne by married couples.” The court gave the legislature six months to choose between these two options.
Thus, in a grudging concession to the “democratic process,” four members of the court believed the representative of New Jersey’s citizens could be trusted to give a name to the status the court has decided is mandated by the state constitution.
Although this does not sound like much, three justices believed even allowing the people a voice in naming the status was too much. They would have found a fundamental right to marry that included same-sex marriage.
The court was aided in its decision by the New Jersey attorney general’s decision not to make any arguments about the unique benefits marriage provides to society and particularly to children. In fact, the court relied on the attorney general’s failure to make the argument as an excuse not to address the issue. This is in stark contrast to the court of appeals which was willing to listen to those arguments.
The New Jersey Supreme Court had numerous briefs filed by outside groups on this very matter but unlike the court of appeals, decided to ignore them.
Instead the court made a distinction between the name “marriage” and the benefits married people receive. Then, because the state had already offered some of these benefits to same-sex couples, the court held it could not stop until it offered all of the substance of marriage even if under a different name.
The court did not seem to be bothered by the fact that a legislature’s decision to do something does not create a constitutional right to the next step.
Ironically, this decision effectively rebuts the claim that marriage amendments
(particularly those that prohibit marriage alternatives) are unnecessary.
As long as there are courts willing to issue opinions like the one in New
Jersey, there will be a need for the people to act to protect marriage and
their own power to make policy.
Mr. Duncan is director of the Marriage Law Foundation (www.marriagelawfoundation.org)
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