An appeals court in New Jersey has dealt a setback to claims first raised by seven gay and lesbian couples in 2002 that same-sex marriage is guaranteed under the state’s constitution, but Lambda Legal, who represents the plaintiffs, is undaunted, saying the New Jersey Supreme Court has always been the venue where the group expected the issue to be resolved.
On June 14, a sharply divided panel of the appellate division, the state’s intermediate appeals court, voted 2-1 to reject Lambda’s argument that the state’s refusal to let same-sex couples marry violates its constitution.
David Buckel, the Lambda staff attorney who argued the case to the appellate court, vowed a prompt appeal to the state Supreme Court, which is required to hear the case.
When Lambda first filed the lawsuit, almost three years ago, in collaboration with Lawrence S. Lustberg of Gibbons, DelDeo, Dolan, Griffinger & Vecchione, a New Jersey law firm, the group stated that the issue could only be determined in the state’s highest court, and said bumps along the way were likely. New Jersey was a promising venue, Buckel argued at that time, because courts there had specifically held that the right to privacy included the right to marry and because of the state’s strong equal protection guarantee.
The dissenting opinion in this week’s appellate decision is significant not only for the backing it gives to Lambda’s arguments, but also because it guarantees a hearing from New Jersey’s high court. Had the appellate ruling been unanimous against the plaintiffs, the state Supreme Court would have had discretion to duck an appeal.
Lambda’s case was argued solely under the New Jersey Constitution, to insulate any final decision from review by the U.S. Supreme Court. In the past, the state’s high court has interpreted New Jersey’s constitution to provide broader protection to individual rights of privacy and equal protection than those afforded under the federal Constitution. Privacy rulings from the court led the Legislature to decriminalize consensual sodomy decades ago, and the court has in recent years embraced a liberal view of lesbian and gay family rights, including joint adoption and co-parent visitation.
The New Jersey Supreme Court also ruled against the Boy Scouts on anti-gay discrimination, in a unanimous 1999 decision in the case brought by James Dale, only to be reversed by the U.S. Supreme Court.
The final page in the state’s marriage case has clearly yet to be written. Since the Dale decision, three new members, appointed by former Democratic Gov. James McGreevey, have joined the court. All of the justices currently sitting were appointed by either McGreevey or former Gov. Christine Todd Whitman, a Republican.
Lambda is pursuing the case along two alternative constitutional theories. One relies on the concept of individual privacy and autonomy, the other on equal protection, both derived by New Jersey courts from Article I, Section 1 of the state Constitution, which has a broad statement of protection for individual rights. The New Jersey Supreme Court has taken a more flexible view of both of these concepts than the U.S. Supreme Court.
Each of the three judges on the panel wrote an opinion. Judge Stephen Skillman’s opinion speaks for the court, since it won the approval of Judge Anthony J. Parrillo, who also wrote a separate concurring opinion. Donald G. Collester, Jr., even as he acknowledged the scholarship of the majority opinion, dissented at length.
Skillman’s opinion is largely an echo of last fall’s trial court ruling, finding that history and tradition dictate that a marriage can only be the union of a man and a woman. Skillman dismissed the equal protection argument saying that every New Jerseyan, regardless of sex or sexual orientation, is equally entitled to enter into an opposite-sex marriage and equally forbidden from entering a same-sex marriage. Both Skillman and Parrillo, in his concurring opinion, argue that opening up marriage to same-sex partners would fundamentally change the institution, and that such alteration is a matter for the Legislature, not the courts, to weigh.
Responding to the parallel between Lambda’s claims and the finding in Loving v. Virginia, the 1967 U.S. Supreme Court case that found that the rights to marry, to liberty and to equal protection made bans on interracial marriage unconstitutional, Skillman noted that the context for Loving involved a heterosexual marriage. Striking down miscegenation laws, he argued, did not challenge the fundamental nature of marriage as a union between one man and one woman.
Both Skillman and Parrillo also pointed to New Jersey’s recently enacted domestic partnership law as proof that the political process can be responsive to the needs of same-sex partners. Parrillo, in particular, emphasized the difference between marriage itself, which the plaintiffs are seeking, and the rights and benefits associated with marriage, some of which have already been extended to same-sex couples through the partnership law or state judicial decisions. Parrillo argued the Legislature specifically decided to extent specific rights rather than to open up marriage itself for same-sex partners.
Collester differed with his colleagues on virtually every substantive point, criticizing their arguments as circular, particularly in their reliance on history and tradition as the arbiter of civil rights claims. He based his dissent heavily on the reasoning of the Massachusetts Supreme Judicial Court in its November 2003 marriage decision.
“While the Domestic Partnership Act gives, at some cost, many, but not all, of the benefits and protections automatically granted to married persons,” he wrote, “we have learned after much pain that separate but equal does not substitute for equal rights.”
Collester noted that inmates in New Jersey prisons have greater rights than gay and lesbian couples and that the majority opinion had gone even further than the claims made by the state, in arguing that marriage’s purpose in furthering procreation justified limiting it to the union of a man and a woman. The New Jersey attorney general specifically rejected that argument as a basis for his defense of the marriage status quo.
Referring to one of the plaintiff couples, Collester eloquently concluded his dissent by invoking the important non-material aspects of marriage that underlie the demand for fully equal status before the law.
“What Sarah Lael and her partner lack and seek may be summed up in the word: dignity,” he wrote. “But there is more they will gain from lawful marriage. That something else goes to the essence of marriage and is probably best left to poets rather than judges. It is the reason that people do get married. For marriage changes who you are. It gives stability, legal protection and recognition by fellow citizens. It provides a unique meaning to everyday life, for legally, personally and spiritually a married person is never really alone. Few would choose life differently.”
Buckel, noting that the Collester dissent was “passionate and well-reasoned,” vowed to press Lambda’s appeal as soon as possible and pointed out that last fall when the group asked the Supreme Court to hear an immediate appeal of the trial court ruling, it declined but ordered the appellate division to expedite review of the case. Supreme Court review of the appeal could, then, come sooner rather than later, he said.