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Same-sex marriage (SSM) in New Jersey via the state courts

2011-JUN: Return to the courts with a new case:
Garden State Equality v. Dow

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Earlier information about a similar, earlier case

In this essay:
"SSM" refers to same-sex marriage;
LGBT refers to lesbians, gays, bisexuals, and transsexuals

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Review of the story so far:

In 2006, the state Supreme Court issued its unanimous ruling in the 2002 case Lewis v. Harris (908 A.2d 196 n.7 (N.J. 2006). They determined that the existing state marriage act violated the New Jersey Constitution because it gave special privileges, rights protections, and obligations to opposite-sex married couples while denying them to same-sex couples. The Court ordered the Legislature to provide such couples with a mechanism by which they could receive the same benefits as opposite-sex married couples are given when they marry. The two obvious options were to:

  • Change the definition of marriage for the third time in the history of the U.S. The first was at the conclusions of the Civil War when African Americans who had previously been denied access to marriage were allowed to marry. The second was in 1967 when inter-racial couples were allowed to marry. This time it would involve the Legislature following the lead of Massachusetts in 2004 and New York State in 2011, etc. which changed the definition of marriage to include same-sex couples.

  • Create a "separate and equal" system of civil unions that gave same-sex couples and their children access to all of the rights, benefits, protections and obligations of married couples, without the right to call their relationship a marriage.

In both cases, the federal Defense of Marriage act denies same-sex couples access to the approximately 1,100 rights, privileges and protections given to opposite-sex married couples by the federal government. However, this act has been declared unconstitutional by multiple federal courts. Most constitutional lawyers believe that it will not last much longer.

The New Jersey Legislature decided to create civil unions in 2007. However, experience has since shown that civil unions are not equivalent to marriages. A New Jersey Civil Union Review Commission unanimously agreed that civil unions had failed. In their final report of 2008-DEC they recommended marriage equality. 1,2 Vermont went through a similar experience with their civil union legislation. The Vermont Commission on Family Recognition and Protection also reported that, in practice, civil unions in that state were not equal to marriage. 3

During 2009-NOV a new governor, Chris Christie was elected. He is a Republican and a Roman Catholic. He has promised to veto any future marriage equality bill passed by the Legislature. Since any vote in the House and Senate would be close, the governor's veto would be difficult or impossible to overrule.

In 2010-JAN, the New Jersey Senate defeated a bill to legalize SSM. Garden State Equality partnered with Lambda Legal Defense and Education Fund in an unsuccessful attempt reopen the 2006 case before the state Supreme Court.

The only option available to same-sex couples seeking equality was to launch still another lawsuit through the courts starting at the Superior Court level.

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Seven same-sex couples file new lawsuit in state Superior Court:

On 2011-JUN-30, Lambda Legal filed a lawsuit Garden State Equality v. Dow in Superior Court of Mercer County. It seeks marriage equality for seven same-sex couples who believe that they have been harmed by the civil union system. The case will be argued on the basis that civil unions are both separate and unequal. Thus, the enabling law is unconstitutional because it violates both the New Jersey Constitution and the equal protection clause of the Fourteen Amendment of the U.S. Constitution.

Hayley Gorenberg, Deputy Legal Director of Lambda Legal, said:

"I think there is real momentum for these rights currently in the Tri-State area, but at this point New Jersey stands alone in denying same-sex couples the right to marry. Obviously we think all of these couples should have equal access to the rights of other couples, and of course, the right to marry. Other states in the area and across the country have seen and understood that equality should be for everybody. ... "Civil unions are unfair on so many levels. Every couple joined in this suit has a story of medical access being denied because their health care provider didn't understand what a civil union is. It just logically seems different to them because it's not called a marriage." 4

On another occasion, Ms. Gorenberg wrote in a Lambda Legal press release:

"The constitutional guarantee of equality under the law does not stop midway through the Lincoln Tunnel. 5 Our clients have been kept from each other during medical crises, denied health insurance, and even discriminated against in funeral homes because their civil unions relegate them to second-class status. New Jersey's same-sex couples have been stuck in a limbo caused by the confusion and indignity of living with an inferior status." 6

Lambda Legal's press release also said:

"In court papers filed today, Lambda Legal addressed how New Jersey's civil unions fall short. Civil unions place same-sex couples in an inferior status to different-sex couples. Without full marriage equality, same-sex couples are denied workplace benefits and protections equal to those accorded to married people, and they are blocked from seeing their loved ones during medical emergencies. The exclusion of same-sex couples from marriage deprives them and their children of their dignity as a family and certainty in their legal rights and status to each other." 6

Steven Goldstein, Chair and CEO of Garden State Equality -- a pro-equality group -- issued a statement saying:

"By now, everybody in New Jersey knows that civil unions don't work. Since civil unions became law in New Jersey, Garden State Equality has received reports from a multitude of civil union couples who have told us their employers refuse to provide the equal rights and benefits the civil union law mandates. It's time for the courts to fix this mess and give full marriage equality to New Jersey's same-sex couples and their children." 4

Two of the plaintiffs, Karen and Marcye Nicholson-McFadden, were also part of the first suit during 2002-2006. They have been together for 21 years and have two children. Karen said:

"I don't know one straight couple that would say, 'I am going to give up my marriage and take a civil union.' If civil unions are so great and so perfect, then why don't straight couples get civil unions too? And the answer is that they are not so great and so perfect; they are second best."

"I went to a new dentist a few weeks ago and civil union doesn't even exist on the paperwork. It had married, single, divorced and separated - every iteration and civil union was not on the paper. I had to rewrite the form and make my own check box with civil union in it and hand my paper work in."

"And in this most recent example the woman who processed the paperwork said to me, 'Well do you want me to just put you in the system as married?' and I said "I am not married; I'm not allowed to be married in this state.' She said to me, "I'm just concerned that you might not get covered because the insurers want to see married in the system."

"In the best scenario, [their confusion] is because they never heard of it, they don't understand it or they haven't been educated. There's no malice, but they just don't get it. And in the worst case scenarios it opens the door for discrimination because it sets you aside as different."

"I heard my daughter in first grade trying to explain to her friend what a civil union is. Kids do not get it. The simple thing [would be to be able] to say is 'My parents are married just like yours. They happen to be two women, but they love each other.' We come home, we have family dinner, we do homework, we do the PTA. There's nothing exciting here."

"When you look at the interactions between these couples and doctors or with schools, they're not trying to discriminate, they're just confused. They're provided with a status that is confusing and different. People are being denied their rights because the state separates them into civil unions. That's unfair and it's not right." 4

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Court activity continues in 2011-NOV

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. Marc Piorier, "Lewis v. Harris II -- 'Civil union' versus 'marriage,' one more time," Concurring Opinions, 2010-APR-29, at: http://www.concurringopinions.com/
  2. "The Legal, Social, Medical, and Economic Consequences of New Jersey’s Civil Union Law." New Jersey Civil Union Review Commission, 2008-DEC-10, at http://nj.gov/ This is a PDF file.
  3. "Report of the Vermont Commission on Family Recognition and Protection", Office of Legislative Council, 2008-APR-21, at: http://www.leg.state.vt.us/
  4. Davy James & Chelsea Naso, "Aberdeen Couple Joins Lawsuit to Bring Marriage Equality to New Jersey," Matawan-Aberdeen Patch, 2011-JUN-30, at: http://matawan-aberdeen.patch.com/
  5. The Lincoln Tunnel is a 1.5-mile (2.4 km) long tunnel under the Hudson River, connecting Weehawken, NJ to New York City, NY. You can drive free from New York to New Jersey, but the return trip costs $6.00. There is a message there, but I can't quite figure it out.
  6. Adam Polaski, "Lawsuit Filed for Marriage Equality in New Jersey," The Bilerico Project, 2011-JUN-29, at: http://www.bilerico.com/

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Site navigation: Home > Homosexuality > Same-sex marriage > SSM Menu > New Jersey > here

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Copyright © 2011 by Ontario Consultants on Religious Tolerance
Originally posted: 2011-JUL-03
Latest update: 2011-JUL-08
Author: B.A. Robinson

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