The NJ Supreme Court and Gay Rights: A View from the Trenches
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Jeff Willard is the Regional Social Action Co-chair, URJ, New Jersey West Hudson Valley Council Member Commission on Social Action. |
In a 4 -3 decision of the New Jersey Supreme Court, Justice Barry T. Albin wrote for the majority; … “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.” However the court failed to apply a remedy. Instead the court referred the issue to the State’s Legislature. Because of the fear of being accused of judicial activism the court abdicated its responsibility. The court’s responsibility is to dispense justice regardless of public opinion.
The New Jersey Legislature has several options:
1) Change the State’s Constitution to define marriage to include same sex couples. Even though a small majority of New Jersey citizens favors same sex marriage, the majority of the State’s Legislators believes that marriage should be between a man and a woman.
2) Pass a Civil Union Law. In the dissenting opinion, Chief Justice Deborah T. Poritz wrote … “marriage bestows enormous private and social advantages.” “We can find no principled basis, however, on which to distinguish those rights and benefits from the right to the title of marriage.” A Civil Union statue would create a separate but equal citizenship for all of New Jersey’s GLBT population. We learned from the civil rights movement that separate is always separate, but is never equal. In Loving v. Virginia , 388 U.S. 1 ( 1967), a landmark civil rights case in which the United States Supreme Court declared Virginia's anti- miscegenation statute, the " Racial Integrity Act of 1924", unconstitutional, thereby ending all race-based legal restriction on marriage in the United States. The Supreme Court overturned the convictions in a unanimous decision, dismissing the Commonwealth of Virginia's argument that a law forbidding both white and black persons from marrying persons of another race, and providing identical penalties to white and black violators, could not be construed as racially discriminatory. In its decision, the court wrote “Marriage is one of the basic civil rights of man, fundamental to our very existence and survival” .... “To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State”. The court did not establish a different classification for these couples. The court recognized that all American citizens should be treated the same under our constitution.
Unfortunately Civil Unions will probably be the end result. New Jersey’s same sex couples may gain rights that they do not have now under the State’s Domestic Partnership statute, but they will be relegated to permanent second class citizenship.






























