Lewis v. Harris

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Same-sex marriage
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Lewis v. Harris, (2006), is a New Jersey Supreme Court case that held that same-sex couples are entitled to the same equal protection as heterosexual couples under the state constitution.

The court unanimously agreed that current state law is unconstitutional with respect to the equal protection of same sex couples. The court was divided as to what remedy was required. Four justices (of seven) ruled that the legislature can either amend marriage laws or create civil unions. Three justices (the minority) argued that the only constitutional remedy is the amendment of state marriage law to include same-sex couples. The majority ruling gives the New Jersey legislature 6 months to either amend current marriage laws or create civil unions.

The majority opinion was authored by Associate Justice Barry T. Albin. The dissenting opinion was written by Chief Justice Deborah T. Poritz and was issued in her final day as a member of the court, October 25, 2006. Then-Associate Justice James R. Zazzali, sworn in as Chief Justice the following day, joined in Poritz's dissenting opinion.

1 Highlights
2 N.J. Supreme Court oral arguments
3 External link

[edit] Highlights

"In light of plaintiffs’ strong interest in rights and benefits comparable to those of married couples, the State has failed to show a public need for disparate treatment. We conclude that denying to committed same-sex couples the financial and social benefits and privileges given to their 57 married heterosexual counterparts bears no substantial relationship to a legitimate governmental purpose."

"We are mindful that in the cultural clash over same-sex marriage, the word marriage itself -- independent of the rights and benefits of marriage -- has an evocative and important meaning to both parties. Under our equal protection jurisprudence, however, plaintiffs' claimed right to the name of marriage is surely not the same now that equal rights and benefits must be conferred on committed same- sex couples."

"Our decision today significantly advances the civil rights of gays and lesbians. We have decided that our State Constitution guarantees that every statutory right and benefit conferred to heterosexual couples through civil marriage must be made available to committed same-sex couples. Now the Legislature must determine whether to alter the long accepted definition of marriage."

[edit] N.J. Supreme Court oral arguments

The New Jersey Supreme Court heard oral arguments on February 15, 2006. What follows are select quotes from the Justices.

[edit] Justice Barry T. Albin

"But the language is different. Article 1, p. 1 says that people have the natural and unalienable right to obtain and pursue happiness. Those are clauses that don't even appear in the U.S. Constitution anywhere."
"But to say that the elected branches have spoken to an issue, does not in any way help us... who have now before us the constitutional issue that we must decide. We cannot evade the issue that has been placed before us. The elected branches of Government's in the Southern States before 1954 had been spoken, if the U.S. Supreme Court took that as the article of faith, Brown v. Board of Education would have never been decided."
"And that's what cuts against the tradition argument that you make, because the state recognizes that gay couples can raise children, adopt children, send them to school, in our communities as police officers, firefighters, teachers, every profession, every trade... and after giving that particular recognition, then you say, but the tradition that still maintains or should maintain and should not be touched even under equal protection argument is that they cannot marry. Don't all of those things undercut your tradition argument?"
N.J. Attorney General: "It couldn't be in 1947, that the founders even thought of same-sex marriage, let alone enshrined it in our Constitution."
- Justice Albin: The founders couldn't have conceived of the law against discrimination that included sexual orientation in 1991."
"But we can't interpret our Constitution depending upon what Utah or Wyoming decides to do, you would agree with that? We have special interests, we have different constitutions, laws, conditions in this state are different. We have one of the most diverse populations in the country, across the board. We may have a larger gay population than many other states. All those are factors that are unique to New Jersey, and must infuse our consideration of this issue. Don't you agree?"

[edit] Justice James R. Zazzali

"You said a few seconds ago that this step that the plaintiffs are seeking would be radical, and yet all the items that have been identified by a couple of Justices here, particularly Justice Albin... GLAAD, the Domestic Partnership act, case law, and the rest of it, in the aggregate, aren't they viewed or would be viewed 10, 15 years ago as radical?"
"But if it's required let's say of the equal protection of the laws, how do we defer to the legislature in those circumstances?"
"Implicit in Justice Albin's questioning is if you take away procreation and you take away optimal child-bearing, is, what's left?"
"But following up on the Chief Justice's question, referring generally to the changes in our society in the last 60 years, what has changed more than the institution of marriage? In so many profound ways, and some would argue in so many negative ways, and you can't blame the gay rights movement on those material changes to the institution."

[edit] Chief Justice Deborah T. Poritz

"We've always read our Constitution so as to give broader individual rights. We have used a different test for equal protection analysis that allows us to do that, so in some sense, we have a Constitutional provision, we may not have a separate 14th Amendment, but we have a Constutional provision that we have interpreted in such a way traditionally that provides us with a Constitutional underpinning for dealing with this question and for really asking the question is moral disapproval a legitimate state interest?"
"The United States Supreme Court has said that separate but equal was not tenable under the U.S. Constitution. There wasn't a question of whether the majority of people agreed or did not agree with that."
"You said something about harm though that I thought was very interesting. You said that it would be an untenable argument to say, I think you said this, that same-sex marriage would in some way harm heterosexual marriage, is that true?"
"But if there is no harm to heterosexual marriage, that is the two co-exist side by side–they're both marriage, then what is the state then resting on, just that there's been a definition for a long time?"
"You say it over and over again, it is a historical fact, as Justice Long has pointed out, that marriage has been defined as between a man and a woman, but there are other historical facts that for a long time, women were property in the marriage relationship. For a long time, euhm(?), women could not make a claim of rape against a husband. There've been lots of ways in which the traditional idea of marriage and the relationship of marriage has changed, so why whould we just simply defer. It's historical. It's over."
"The founders could not have conceived that we would find ways of keeping people alive, and that at some point, a Court would say that people had a right to die under certain restraints and circumstances. There are many changes that occurred since the founders put together the documents that undergird our government, and we've worked with those changes. Those changes have made a difference in the way we've interpreted the law. They've had to. We can't ignore modern realities. Why in this situation can we only look to the founders?"
"Well actually, under our equal protection analysis, and the plaintiffs raise that claim, we need to do that weighing and balancing. We are required to in order to interpret our Constitution."

[edit] Justice Jaynee LaVecchia

"Are you suggesting that the legislature has somehow determined that allowing same-sex marriage, in some way harms or diminishes mixed-sex marriage–and if that's true, what could that possibly be based? What's the factual evidence?
"Why is the state not advancing procreation or child-rearing as rationals for this?"
"But that argument suggests that the state cannot engage in any line drawing, and I did not understand your argument to be that broad."
"Mr. Buckle, forget about whether we're bound by what the Attorney General has chosen to argue. If the rational basis test is applied in this setting, don't we have an obligation to give all rational inferences to the legislative choice, so if there is a possible rational basis for the legislative decision, we have an obligation to support it?"

[edit] Justice Virginia Long

"Why is that an interest? The interest in maintaining marriage as it has been, what is that interest?"
"But how is that a harm, a change in the meaning? How is that a harm to be placed upon in this balance?"
"That's the problem I guess, the traditional view is a fact. What we need is the legal argument that spins out of that fact other than that that was the traditional view."