New Jersey Supremes Announce Right to Same-Sex Unions

New Jersey has joined Massachusetts in having the state’s highest court rule that same-sex couples have the right to legally recognized unions.

New Jersey’s Supreme Court ruled Wednesday that same-sex couples are entitled to the same rights as heterosexual couples. But the court left it to the Legislature to determine whether the state will honor gay marriage or some other form of civil union.

Advocates on both sides of the issue believed the state posed the best chance for gay marriage to win approval since Massachusetts became the only state to do so in 2003 because the New Jersey Supreme Court has a history of extending civil rights protections. Instead, the high court stopped short of fully approving gay marriage and gave lawmakers 180 days to rewrite marriage laws to either include gay couples or create new civil unions. (Opinion — pdf external link)

“The issue is not about the transformation of the traditional definition of marriage, but about the unequal dispensation of benefits and privileges to one of two similarly situated classes of people,” the court said in its 4-3 ruling.

New Jersey lawmakers voted to allow domestic partnerships in 2004, but they have been reluctant to delve into the sensitive issue of marriage.

I’m no expert in the New Jersey constitution and have not yet digested the ruling, so there may be some nuance I’m missing.

The concept of equal protection of the laws would seem to indicate that either 1) the state has a right to consider gender in making laws about marriage or 2) any laws about marriage passed by the state must be applied equally regardless of gender. It’s baffling to rule simultaneously that opposite-sex unions are constitutionally identical to mixed-sex unions but allow them to be treated differently under the law. This is, essentially, Plessy v. Ferguson all over again.

UPDATE: A quick perusal of the ruling doesn’t help. My interpretation of the ruling and its basis is correct:

HELD: 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. The Court holds that under the equal protection guarantee of Article I, Paragraph 1 of the New Jersey Constitution, committed 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.

So, the treatment must be “equal” although the name can be separate. The rationale?

In the last two centuries, the institution of marriage has reflected society’s changing social mores and values. Legislatures, along with courts, have played a major role in ushering marriage into the modern era of equality of partners. The great engine for social change in this country has always been the democratic process. Although courts can ensure equal treatment, they cannot guarantee social acceptance, which must come through the evolving ethos of a maturing society. Plaintiffs’ quest does not end here. They must now appeal to their fellow citizens whose voices are heard through their popularly elected representatives.

Well, no. Either the constitution provides for equal treatment or it does not. Statute doesn’t affirm constitutional rights; it must be in conformity. It’s certainly true that proclaiming two men or two women “married” does not guarantee social acceptance of their relationship. Then again, neither did the ruling in Loving vs. Virginia that forced states to nonetheless allow blacks and whites to marry. Social enthusiasm for the law is not generally a barrier to courts doing their constitutional duty.

One could argue, of course, that the New Jersey Constitution’s equal protection clause was never intended to wipe away gender distinctions in marriage. Indeed, I would argue that. But the majority of the state’s supreme court has just ruled otherwise but then not followed the logic of their own ruling. Most odd.

UPDATE: Eugene Volokh makes an interesting argument about the slippery slope created by taking intermediate steps even though one is opposed to later steps. His colleague Dale Carpenter agrees, citing the danger of the “unstable middle ground.”

New Jersey ran into trouble because, having started down the path to full equality for gay individuals and couples through a variety of state statutes and judicial decisions, the state could not give any good reason why it should continue to differentiate. For example, the court noted, the state has adopted a domestic partnership system that gives gay couples a list of rights also given to married couples.


It’s significant that no other gay-marriage case (with the possible and instructive exception of Vermont, where the court adopted similar reasoning) has been brought to a state supreme court in a state with as favorable a public policy toward gays as this one was: a broad set of antidiscrimination laws, domestic partnerships, second-parent adoptions, a hate crimes law, and so on. In this environment — where the state was committed to protecting gay people, sustaining gay couples, and facilitating gay parenting — it was both logically and practically difficult to hold on to the procreation and child-rearing rationales. The state had nothing left in defense of the rights gap except an unadorned “tradition” that the state itself had steadily undermined in its public policy.

The whole case, then, shows how unstable a middle ground can become in the hands of an aggressive court. The slope on that middle ground seems much more slippery for courts, which demand what they regard as principled reasons for any distinction, than it is for legislatures, which may refuse to budge for no reason other than that the votes aren’t there to do more or because of simple fiat. When legislatures act, they may grant 50 of the 1,000 rights of marriage now, another 25 rights next year, another 100 the year after that, and the rest whenever they get around to it, all without explaining why they’ve acted or failed to act. Courts have a harder time making these distinctions because judicial conventions mandate that they give reasons to support their opinions, and what principled reason could there be for giving 50 of the 1,000 rights of marriage but not another 25 or 100 or all of them? This is the slippery slope phenomenon Eugene points to. It’s not so much a legislative slippery slope as it is a judicial one.

Quite right. Such is a “living” constitution. Under a textualist reading of a constitution, its meaning is constant. Legislative acts would either be permissible or not; they would, however, have no impact on the constitution. If a constitution is organic, however, then judges will naturally read changed circumstances into it based on legislative acts.

Whatever one’s views on that issue, though, the end result can be perverse:

While the result in this case is surely a good one for gay families, it may chill experiments in other states where legislators might fear that they cannot move incrementally toward equality for gay couples without surrendering the judicial basis for any remaining distinctions. I doubt that’s really a great danger in most states, where courts tend to be less aggressive than New Jersey’s and where the standard rational-basis test should allow legislatures to proceed incrementally, but this opinion will surely be cited as a reason not to grant any rights to gay couples.

One would think.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. legion says:

    One thing that gets forgotten a lot in these debates is the concept of common-law marriages. If the NJ court had ruled differently, such things would be immediately relegated to the legal status of Santorum’s ‘man-on-dog’ relationships…

  2. Apparently the court recognizes the absurdity that the constitutional provision was meant to cover this.

    New Jersey’s marriage laws, which were first enacted in 1912, limit marriage to heterosexual couples. The
    recently enacted Domestic Partnership Act explicitly acknowledges that same-sex couples cannot marry. Although
    today there is a national debate over whether same-sex marriages should be authorized by the states, the framers of
    the 1947 New Jersey Constitution could not have imagined that the liberty right protected by Article I, Paragraph 1
    embraced same-sex marriage.

    But they claim they can ignore this.

    Times and attitudes have changed. There has been a developing understanding that discrimination against gays
    and lesbians is no longer acceptable in this State. On the federal level, the United States Supreme Court has struck
    down laws that have unconstitutionally targeted gays and lesbians for disparate treatment. Although plaintiffs rely
    on the federal cases to support the argument that they have a fundamental right to marry under our State
    Constitution, those cases fall far short of establishing a fundamental right to same-sex marriage “deeply rooted in the
    traditions, history, and conscience of the people of this State.” Despite the rich diversity of this State, the tolerance
    and goodness of its people, and the many recent advances made by gays and lesbians toward achieving social
    acceptance and equality under the law, the Court cannot find that the right to same-sex marriage is a fundamental
    right under our constitution.

    So following that reasoning, they could still discriminate against polygamy because they will just say that the state hasn’t developed an understanding that it is no longer unacceptable. The court has magic powers to throw out any laws they don’t like if they think that the states has developed an understanding that being against such things are no longer acceptable.

    So I figure that we can look forward to rulings that while the original intent of the constitution writers could not have imagined it, times have changed. Therefore it is legal to kill any conservative who says something you disagree with as part of preserving a leftist right to free speech. I mean, isn’t it clear that the state has developed an understanding that such hate speech by a conservative is no longer acceptable. The state legislature has 180 days to issue hunting licenses.

  3. SoloD says:

    I mean, isn’t it clear that the state has developed an understanding that such hate speech by a conservative is no longer acceptable. The state legislature has 180 days to issue hunting licenses.

    Sorry John, we liberals don’t believe in hunting either.

  4. Tano says:

    At first reading, the decision seems to make a lot of sense to me. The name given to the institution, be it marriage or union, does not seem to rise to the level of fundamental constitutional rights. The dispensation of government benefits and preferences however, does call into play the principle of equal treatment under the laws.

  5. James Joyner says:

    Tano: But that’s essentially the logic of Plessy v. Ferguson. What difference does it make which car black people (even those, like the plaintiff, who were 7/8 white) rode in so long as they got to take the train?

  6. Triumph says:

    This sucks. There will undoubtedly be more gays recruiting new coverts in New Jersey.

  7. Tano says:

    I really dont buy that Plessy argument James. The court is saying that while it is not our business what you call it, you had better apply the law equally and grant true equality. They did not prohibit the legislature from calling it marriage, they simply focused on the actual consequences of whatever regime is enacted, and demanded that it be equal. I dont see the justification for you claiming that they are treating gay couples differently under the law, unless you think semantics is a bigger issue than I do.

    For the record, I would hope the legislature does call the unions marriages. But if the people arent ready for that, well, at least they cannot deny equal treatment to gays, in terms of legal benefits and priveledges. If it turns out that a “civil union” is a sham form of equality, as the Plessy equality was, and then I will join your critique.

  8. Anderson says:

    Not enough attention, I think, to the surprising unanimity of the decision. For all the mouthing about how the NJ constitution doesn’t really say so-and-so, not one of seven justices cared to dissent in favor of the status quo. This in a state where, traditionally, they balance the justices 3-3 on partisan lines, with the gov getting the 7th pick.

  9. Dadmanly says:

    Just as the State was unable to provide a compelling argument for preventing gay [unions] [marriages][partnerships][onions][insert legislature approved term here], they will likewise and by obvious extension be unable to provide a compelling argument why one cannot marry one’s pet, one’s house, one’s car, let alone a multitude of partners and combinations.

    When the “civil rights paradigm” was extended to sexual orientation, it was absolutely inevitable that this would spell the demise of preferential treatment to marriages and married people. Everybody must have the same opportunities and benefits.

    There will be a brief rally when sponsors try to enact preferential benefits for those who birth or adopt children, then those too will die at the hands of those unable to be parents.

    Marriage has value to society as originally construed. Marriage in this brave new world retains no value at all.

  10. Tano says:


    Marriage, as a concept, exists in two separate spheres. In the religous context, it is defined by each religion in any way that the religion chooses to do so. Religion is a voluntary matter, and one can certainly choose to associate with traditions that one feels comfortable with, and to define ones life around the ideas and institutions that the relgion promotes.

    Compliance with the laws is not a voluntary matter, and the government is not a spiritual institution. Governments recognize marriages, and offer benefits to those engaged in them, because it is a simple fact of life that humans tend to form pair bonds, and these social units are an important aspect of any successful society. For the government, the issue of marriage is a practical matter, dealing with issues like tax laws, legal contracts and the like.

    Whereas marrying your refrigerator, or your pet, or not doing so, might be an issue for a church to deal with, it is not relevant to the government. Refrigerators and pets are not persons under the law to whom benefits or legal status might accrue, nor can they enter into contracts etc.

    Your statement about the preferential treatment of marriage and married people is rather absurd. There will be no change in these preferences – in fact the NJ courts made clear that these preferences are perfectly legitimate – all they decreed is that they be extended to gay committed couples that form stable social units.

    I dont know if you are married, but if so, I hope your wife isn’t too brokenhearted by your view of the value of your marriage, now that gay couples can have legal rights too.

  11. floyd says:

    “When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another”….. how long before we are compelled to declare cause once more?

  12. Tano says:

    bye bye floyd, I always suspected that you guys on the far right were deeply uncomfortable with the reality of America, and its progress.

  13. floyd says:

    tano; progress? only for “progressives”. *awe c’mon meet me half way* *i’m a “centerist” . are you too closed minded to compromise?* these are the inane arguments commonly used by the far left to coax the middle into the gutter. how do they sound coming from your right? today’s left makes yesterday’s left look like right wing fanatics. *hurry send the thought police before the truth gets out!*