The New Jersey Supreme Court finds a right to same sex unions, but refuses to go all the way

By Nancy Jane Moore

Stopping short of finding a fundamental right to same-sex marriage, the New Jersey Supreme Court concluded Wednesday 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. The court said:

Although we cannot find that a fundamental right to same-sex marriage exists in this State, the unequal dispensation of rights and benefits to committed same-sex partners can no longer be tolerated under our State Constitution.

The high court instructed the state legislature to:

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. We will not presume that a separate statutory scheme, which uses a title other than marriage, contravenes equal protection principles, so long as the rights and benefits of civil marriage are made equally available to same-sex couples.

Three justices (out of the seven on the court) dissented in part. While they agreed with the majority that it is a violation of equal protection to deny rights and benefits to committed same sex couples that are allowed to heterosexual couples, they said, in the words of Chief Justice Deborah T. Poritz:

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.

In other words, no one on the court was opposed to legal recognition of same sex relationships.

The decision was disappointing to some gay rights advocates, who felt it did not go far enough. The New York Times quoted Garden State Equality chair Steven Goldstein as saying "Those who would view today's ruling as a victory for same sex couples are dead wrong."

However, while the ruling certainly contains a whiff of "separate but equal" -- a judicial philosophy whose failure is manifest -- the decision should not be dismissed out of hand because it does not go as far as we want it to go. The tone of the opinion leaves no doubt that the justices of the New Jersey Supreme Court think that same sex relationships deserve the same legal respect as opposite sex ones:

We conclude that denying to 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.

The debate on the New Jersey court was not over whether to legally recognize same sex relationships or whether such relationships should be treated in the same way as heterosexual marriage -- all the justices agreed on those points -- but only on whether the state constitution required them to call that recognition marriage. Given that other supposedly progressive courts have been unable to find even the equal protection right set out in this opinion, I think the New Jersey ruling can be read as a step in the right direction.

But don't take my word for it. Go read the opinion for yourself (pdf file).