High court says same-sex couples must have rights of marriage, not necessarily the word

by Anthony Glassman

Trenton, N.J.--The state supreme court has ruled that New Jersey cannot deny same-sex couples any of the rights and responsibilities of marriage, but that it can reserve marriage itself for opposite-sex couples.

The court gave the legislature 180 days to either change the marriage law or create a separate structure to extend the same rights and benefits enjoyed by opposite-sex couples to same sex ones. It found New Jersey�s present domestic partnership law inadequate.

�Denying committed same-sex couples the financial and social benefits and privileges given to their married heterosexual counterparts bears no substantial relationship to a legitimate governmental purpose,� read a summary with the 60-page opinion. �[C]ommitted same-sex couples must be afforded on equal terms the same rights and benefits enjoyed by opposite-sex couples under the civil marriage statutes. The name to be given to the statutory scheme that provides full rights and benefits to same-sex couples, whether marriage or some other term, is a matter left to the democratic process.

The justices noted a lower court opinion that separated the right to marry from the rights of marriage.

�In conducting this equal protection analysis, we discern two distinct issues,� wrote Justice Barry T. Albin in the October 25 ruling. �The first is whether committed same-sex couples have the right to the statutory benefits and privileges conferred on heterosexual married couples.�

�Next, assuming a right to equal benefits and privileges, the issue is whether committed same-sex partners have a constitutional right to define their relationship by the name of marriage, the word that historically has characterized the union of a man and a woman,� Albin continues.

On the first issue, the court concluded, �Although under the Domestic Partnership Act same-sex couples are provided with a number of important rights, they still are denied many benefits and privileges accorded to their similarly situated heterosexual counterparts. Thus, the Act has failed to bridge the inequality gap between committed same-sex couples and married opposite-sex couples.�

It notes matters like name changes, property, inheritance and other rights that do not fall under the domestic partnership law.

The decision also notes that New Jersey laws on same-sex couples already put it more in line with states like Massachusetts, which has full same-sex marriage, and Vermont and Connecticut, which both have civil unions, than with most of the other states in the country.

The court said that there are two ways for the state to rectify the matter.

�The legislature could simply amend the marriage statutes to include same-sex couples, or it could create a separate statutory structure, such as a civil union, as Connecticut and Vermont have done,� the majority ruling reads.

Three other justices joined Albin in the opinion.

Retiring Chief Justice Deborah T. Poritz, who retired the next day, wrote a separate opinion than concurs with much of the main opinion, but dissents in that she believes that the equal protection clause of the New Jersey constitution requires the state to allow full same-sex marriage.

She was joined in that decision by Justice Virginia Long and her replacement, new Chief Justice James R. Zazzali.

�I can find no principled basis, however, on which to distinguish those rights and benefits from the right to the title of marriage, and therefore dissent from the majority�s opinion insofar as it declines to recognize that right among all of the other rights and benefits that will be available to samesex couples in the future,� Poritz wrote in her opinion.

The court heard the case on February 15. It involves seven same-sex couples who argued that denying them marriage violated the guarantees of equal rights and due process in the state constitution.

The state did not attempt to argue that procreation was one of the goals of marriage, a common argument in such cases.

Three lawmakers will introduce a bill to enact full same-sex marriage, announced Garden State Equality the same day. Marriage advocates in the state are backing it up with a Zogby-Garden State Equality poll showing 56 percent of New Jerseyans favoring �full marriage equality.�

Proponents of LGBT civil rights in Ohio held up the ruling as another indication of how far the state is slipping behind.

�Today, the Supreme Court of New Jersey told their state legislature to address the discrimination that is currently taking place in that state,� commented Lynne Bowman, executive director of Equality Ohio. �We urge elected officials there to do what is right and provide full marriage equality for loving, same-sex couples. �Separate but equal� is not an American value, and it simply does not work.�