Third Way Result in New Jersey Marriage Case:

In what looks like a Vermont-style ruling, the New Jersey Supreme Court has unanimously ordered the state to grant all of the privileges and rights of marriage -- but not necessarily the word "marriage" -- to same-sex couples. The opinion is here.

The legislature has 180 days to act. The court leaves open the possibility that gay-marriage litigants can come back to the state courts at a future date and request full marriage.

Three justices concurred, saying that the state should have been required to grant full marriage under state law. Litigants thus fell one vote short of a majority for same-sex marriage.

I'll have more to say about the decision when I've had a chance to look at it in detail.

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Gay Rights Laws, Slippery Slopes, and a Constitutional Right to Same-Sex Civil Unions:

The New Jersey Supreme Court has just held that the New Jersey Constitution's equal protection principles require the legislature to recognize at least same-sex civil unions. (Whether the legislature must recognize outright same-sex marriage is left open.) I'm not sure I'll have much to add on the big picture questions this raises, but I did want to note one thing -- this decision, whether you like it or not, seems to be an illustration that the slippery slope is a real phenomenon. Even when there are conceptually quite clear distinctions that could be used to distinguish the first step A from the final step B, A may nonetheless help bring B about.

Consider how the decision relies on the enactment of past gay rights laws. The backers of such laws often argue that these laws do not create a slippery slope towards same-sex marriage or civil unions. Thus, for instance, an editorial in the Boston Globe, Oct. 15, 1989, at A30, said "[A proposed antidiscrimination law barring sexual orientation discrimination in credit, employment, insurance, public accommodation and housing] does not legalize 'gay marriage' or confer any right on homosexual, lesbian or unmarried heterosexual couples to 'domestic benefits.' Nor does passage of the bill put Massachusetts on a 'slippery slope' toward such rights." See also Phil Pitchford, Council Members Wary of Partner Registry, Riverside Press-Enterprise, Apr. 30, 1994, at B1, quoting Riverside Human Relations Commission member Kay Smith as saying that "[t]hose that truly have a problem with homosexuality will see [a domestic partnership proposal] as part of the 'slippery slope' [toward gay marriages] . . . . But, this legislation needs to be looked at on the face value of what it is, and it really does very little." And see the Editorial, A Vote Against Hate, Louisville Courier-J., Feb. 3, 1994, at 6A, rejecting as "arrant nonsense" the claim that a hate crime law "would lead to acceptance of gay marriages."

Yet the New Jersey Supreme Court's equal protection argument begins by citing such non-same-sex-marriage, non-civil-union gay rights laws (citations omitted):

In addressing plaintiffs’ claimed interest in equality of treatment, we begin with a retrospective look at the evolving expansion of rights to gays and lesbians in this State. Today, in New Jersey, it is just as unlawful to discriminate against individuals on the basis of sexual orientation as it is to discriminate against them on the basis of race, national origin, age, or sex. Over the last three decades, through judicial decisions and comprehensive legislative enactments, this State, step by step, has protected gay and lesbian individuals from discrimination on account of their sexual orientation.

In 1974, a New Jersey court held that the parental visitation rights of a divorced homosexual father could not be denied or restricted based on his sexual orientation. Five years later, the Appellate Division stated that the custodial rights of a mother could not be denied or impaired because she was a lesbian. This State was one of the first in the nation to judicially recognize the right of an individual to adopt a same-sex partner’s biological child. Additionally, this Court has acknowledged that a woman can be the “psychological parent” of children born to her former same-sex partner during their committed relationship, entitling the woman to visitation with the children. Recently, our Appellate Division held that under New Jersey’s change of name statute an individual could assume the surname of a same-sex partner.

Perhaps more significantly, New Jersey’s Legislature has been at the forefront of combating sexual orientation discrimination and advancing equality of treatment toward gays and lesbians. In 1992, through an amendment to the Law Against Discrimination, New Jersey became the fifth state in the nation to prohibit discrimination on the basis of “affectional or sexual orientation.” In making sexual orientation a protected category, the Legislature committed New Jersey to the goal of eradicating discrimination against gays and lesbians. In 2004, the Legislature added “domestic partnership status” to the categories protected by the LAD.

The LAD guarantees that gays and lesbians, as well as samesex domestic partners, will not be subject to discrimination in pursuing employment opportunities, gaining access to public accommodations, obtaining housing and real property, seeking credit and loans from financial institutions, and engaging in business transactions. The LAD declares that access to those opportunities and basic needs of modern life is a civil right.

Additionally, discrimination on the basis of sexual orientation is outlawed in various other statutes. For example, the Legislature has made it a bias crime for a person to commit certain offenses with the purpose to intimidate an individual on account of sexual orientation, and has provided a civil cause of action against the offender. It is a crime for a public official to deny a person any “right, privilege, power or immunity” on the basis of sexual orientation. It is also unlawful to discriminate against gays and lesbians under the Local Public Contracts Law and the Public Schools Contracts Law. The Legislature, moreover, formed the New Jersey Human Relations Council to promote educational programs aimed at reducing bias and bias-related acts, identifying sexual orientation as a protected category, and required school districts to adopt antibullying and anti-intimidation policies to protect, among others, gays and lesbians.

In 2004, the Legislature passed the Domestic Partnership Act, making available to committed same-sex couples “certain rights and benefits that are accorded to married couples under the laws of New Jersey.” With same-sex partners in mind, the Legislature declared that “[t]here are a significant number of individuals in this State who choose to live together in important personal, emotional and economic committed relationships,” and that those “mutually supportive relationships should be formally recognized by statute,” The Legislature also acknowledged that such relationships “assist the State by their establishment of a private network of support for the financial, physical and emotional health of their participants.” ...

In passing the Act, the Legislature expressed its clear understanding of the human dimension that propelled it to provide relief to same-sex couples. It emphasized that the need for committed same-sex partners “to have access to these rights and benefits is paramount in view of their essential relationship to any reasonable conception of basic human dignity and autonomy, and the extent to which they will play an integral role in enabling these persons to enjoy their familial relationships as domestic partners.” Aside from federal decisions such as Romer v. Evans and Lawrence v. Texas, this State’s decisional law and sweeping legislative enactments, which protect gays and lesbians from sexual orientation discrimination in all its virulent forms, provide committed same-sex couples with a strong interest in equality of treatment relative to comparable heterosexual couples.

Later in the case (opinion pages 48-49 and 51-52), the court refers back to this reasoning, and uses it as an integral part of its equal protection argument.

Now maybe this entire discussion, though detailed and prominently placed, is all makeweight; maybe the court would have reached the same result even if such laws hadn't been enacted, and would have found that something else besides those laws "provide[s] committed same-sex couples with a strong interest in equality of treatment relative to comparable heterosexual couples." But if we take the New Jersey Supreme Court at its word, it sounds like in New Jersey antidiscrimination laws, domestic partnership laws, and hate crime laws did indeed help bring about same-sex civil unions, just as they did in Vermont (PDF pages 59-61) and, as to same-sex marriage, in Massachusetts.

One can condemn this slippery-slope effect, or praise it. (I support same-sex marriages and civil unions as a policy matter (see PDF page 37), but I don't think that state courts should mandate them as a constitutional matter.) But I think that one can't dismiss the possibility that slippery slope effects, good or bad, are indeed present here, and can be present in similar contexts. And this is so even when, as a purely logical matter, the initial steps (employment discrimination bans, domestic partnership laws, hate crimes laws, and the like) are eminently distinguishable from the final step (same-sex civil unions).

Related Posts (on one page):

  1. The Third Way in New Jersey:
  2. The New Jersey marriage decision and the unstable middle ground:
  3. Gay Rights Laws, Slippery Slopes, and a Constitutional Right to Same-Sex Civil Unions:
  4. Third Way Result in New Jersey Marriage Case:
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The New Jersey marriage decision and the unstable middle ground:

This is the first of two posts on the New Jersey marriage decision, the first judicial opinion from a state supreme court anywhere in the nation to hold unanimously that gay couples are entitled to all the benefits and protections of marriage. In this post, I’ll discuss some of the state constitutional arguments and how the court handled them, as well as what it might portend for public policy in other states. In the next, I’ll talk about the remedy ordered here – equal rights, not the status of marriage.

The gay-marriage litigants in the New Jersey case made two arguments. First, they argued that the “liberty” protected by the state constitution includes a fundamental right to marry that extends to same-sex couples. Second, they argued that prohibiting marriage to same-sex couples denies them the equal protection of the law.

The court’s answer to the fundamental right argument has been given by every state supreme court to look at the issue. It follows the federal precedents on fundamental rights claims by protecting only those rights “objectively and deeply rooted in the traditions, history, and conscience of the people of this State.” Because there is no deeply rooted, historical “right to marry someone of the same sex,” the court held, the claim fails.

The court recognizes that “[h]ow the right is defined may dictate whether it is deemed fundamental.” This is by now a familiar issue in fundamental rights cases: the more specifically a right is defined the more likely it will be rejected as “fundamental.” There is a fundamental “right to marry” recognized by federal and state courts, but no fundamental “right to same-sex marriage.” Sometimes courts define the right at stake broadly – protecting the “right to marry” of prison inmates or protecting the “right to marry” of interracial couples – where a more specific description of the right would cause the claim to fail (there’s no historic “right of prison inmates to marry” or “right of interracial couples to marry”).

So far, so good: the New Jersey court acknowledges the level-of-generality problem. But then the court chooses the specific definition of the right at stake (“a right to same-sex marriage”) with a very unsatisfying explanation for its choice. It cites, for example, state statutes that deny marriage to “polygamous, incestuous, and adolescent” unions as evidence that “the liberty interest at stake is not some undifferentiated, abstract right to marriage, but rather the right of people of the same sex to marry.” Citing state statutes limiting marriage – not for the evidence they provide about traditions but for deciding the threshold question of how broadly to define the right — is an odd way to proceed. If the Supreme Court had done that in Loving v. Virginia, for example, it would have had to look at the state statutes (including Virginia’s own) that denied marriage to “polygamous, incestuous, and adolescent” unions as evidence that the right at issue was the untraditional “right of interracial couples to marry”; or in Turner v. Safley, that the right at issue was the untraditional “right of prison inmates to marry.”

I’m not arguing that the choice of a narrower characterization of the fundamental right at issue (“a right to same-sex marriage”) is the wrong choice. I’m only noting that, after a handful of state supreme court and federal opinions, we still do not have a very defensible methodology for making this choice in the context of gay-marriage claims.

On the second claim – equal protection – the New Jersey courts have interpreted the state constitution in ways that are very different from the federal precedents and many other state courts. New Jersey does not follow what the court calls the “rigid” three-tiered scrutiny of the federal equal protection cases: “strict scrutiny” for race classifications, “intermediate” scrutiny for sex/gender classifications, and “rational basis” for almost every other kind of classification. (In fact, the New Jersey state constitution does not even contain an explicit equal protection guarantee.) Instead, the state courts have adopted a “flexible” test that calls for distinctions between “similarly situated people” to be justified by “a substantial relationship to a legitimate governmental purpose.”

I won’t go into the details of the holding on this point, but it’s enough to say this: 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. But yet the domestic partnership system does not extend other rights of married couples to these same-sex couples. What’s the basis for granting a select list of the rights but not the others?

This discussion of a gap served two equal-protection functions in the opinion: it established the importance of the issue of rights already given to gay couples and highlighted the importance of the remaining rights denied them. (Unlike other courts addressing the issue, the court also emphasized the hardships that denial of the remaining rights places on children being raised by gay couples. Hardly any court before this one has underscored that point.)

All of this put pressure on the state to come up with a reason for the remaining gap. Here, the case differs in an important respect from other state court cases:

The state does not argue that limiting marriage to the union of a man and a woman is needed to encourage procreation or to create the optimal living environment for children. Other than sustaining the traditional definition of marriage, which is not implicated in this discussion, the State has not articulated any legitimate public need for depriving same-sex couples of the host of benefits and privileges catalogued [earlier in the opinion].

The state thus surrendered the two rationales for denying equal rights to gay couples that have been successful in other state court decisions: procreation and child-rearing. But I doubt this surrender was the result of bad lawyering by the state. Instead, it was likely a consequence of the favorable public-policy environment already created legislatively and judicially for gay couples. Consider this passage from the opinion:

It is difficult to understand how withholding the remaining “rights and benefits” from committed same-sex couples is compatible with a “reasonable conception of basic human dignity and autonomy” [recognized in the state domestic partnership law]. There is no rational basis for, on the one hand, giving gays and lesbians full civil rights in their status as individuals, and, on the other, giving them an incomplete set of rights when they follow the inclination of their sexual orientation and enter into committed same-sex relationships.

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.

Seen in this light, the New Jersey court’s quotation from Justice Brandeis’ famous dissenting opinion praising the states as “laboratories” to “try novel social and economic experiments” is a bit ironic. The New Jersey court now holds that once the state substantially experiments with gay equality it must go all the way, ending the experiment.

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.

The question then is, having closed the gap with respect to all rights in marriage, what basis could there possibly be not to close the remaining gap with respect to equal status in marriage?

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The Third Way in New Jersey:

The New Jersey court gave the state legislature 180 days to do one of two things: either (1) amend the state marriage laws to permit same-sex couples to marry or (2) create a parallel statutory system “which will provide for, on equal terms, the rights and benefits enjoyed and burdens and obligations borne by married couples.” This parallel system could be called “civil unions” (as in Vermont and Connecticut) or “domestic partnerships” (as in California) or something else. Under #1 the state will have fully met its constitutional obligation. Under #2 the state may meet its constitutional obligation but will invite further litigation on the issue. Litigants will get a second bite at the marriage apple.

The question is, having concluded that gay couples are entitled to all of the rights of marriage, why did the New Jersey court not simply order the state to issue marriage licenses to same-sex couples? The gay-marriage litigants in the case likened a parallel system to “separate-but-equal” and “second-class citizenship,” terms that emphasize the dignitary harm done by a law that denies them the status of being married. They argued that marriage is not simply an entitlement to legal goodies, but is a status rich in cultural and historical meaning. Marriage works because the status of marriage is synergistic: it combines important legal rights with important cultural rites. A parallel system can capture the former but cannot fully capture the latter. Very eloquent and even moving affidavits from the couples, quoted at length in the concurrence, make the point that there is ultimately no substitute for marriage.

The court’s tentative answer to this dignitary concern is this:

Raised here is the perplexing question – “what’s in a name?” – and is a name itself of constitutional magnitude after the State is required to provide full statutory rights and benefits to same-sex couples? 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 same-sex couples.

It’s hard to imagine a court saying that the question whether interracial unions will be called “marriages” or “civil unions” might not be “of constitutional magnitude” or could be dismissed as a controversy over a “name.” This suggests that the answer to the question – “what’s in a name?” – is, “Sometimes, a lot.” The “sometimes” here is important because it may be that, in the context of our poisonous racial history, a difference in nomenclature would send an especially demeaning and corrosive message about interracial couples, where a difference in nomenclature alone for gay couples would still signal a tremendous advance forward for gay families. But at least courts should recognize that “names” can matter in ways that law should take into account.

The court also conflates the status issue with a social acceptance issue: it treats the claim for the legal status of marriage as if it is a demand for equal social acceptance. “Although courts can ensure equal treatment, they cannot guarantee social acceptance, which must come through the evolving ethos of a changing society,” argues the court (a challenge: find a parallel claim about social attitudes and law in Plessy).

Of course no court can mandate social acceptance; but that is not what gay-marriage litigants asked for. What a court can do is remove any role the law might play in reinforcing social inequality. Denying the status of marriage to gay couples lends some continued legitimacy to the idea that they should not be accepted socially as the equal of married couples. For many people, that may be the correct message to send. But we cannot deny that it is sent and that law has played a role in sending it. Erasing that final status distinction at least ensures that, if social inequality between gay and straight couples remains, it will be no fault of the law.

The court has not shut the door to a claim for the status of marriage. It suggests that the legislature may be able to come up with a reason to restrict the status of marriage to opposite-sex couples, even though it has failed to come up with a sufficient reason to restrict the rights of marriage to opposite-sex couples. The court doesn’t tell us what this reason might be, but says that “marriage” has a “shared societal meaning” passed down through the ages as the union of one man and one woman. “To alter that meaning would render a profound change in the public consciousness of a social institution of ancient origin,” says the court. Having been hard-headed positivists about legal rights for most of the opinion, here the judges become mystics in their reverence for “marriage.” Perhaps the legislature can cite the unknown consequences of changing the “shared societal meaning” of an ancient social institution as reason enough to choose a parallel system for gay couples, but it is hard to see how this would be different from the tradition-based rationale the state offered and the court rejected for denying rights to gay couples.

Two courts so far have squarely confronted this question of nomenclature and have come to opposite conclusions. The Massachusetts high court could not think of any reason other than prejudice for the legislature to deny the status of marriage to gay couples even as it was required to grant them the rights. A Connecticut trial court recently held that a claim for the status of marriage, where all the rights have already been given, was beneath the constitutional radar.

At any rate, it is now clearer than ever that judges in future gay-marriage cases will see three options:

(1) Democracy-permitting decisions: Deny the gay-marriage claim and do nothing more, leaving all decisions about status and rights to the legislature. This was the route taken recently by the state supreme courts in New York and Washington, although the Washington court left open the possibility of choosing route #2 or #3 in the future.

(2) Status-forcing decisions: Mandate the status of marriage, and all of its rights, for gay couples. This was the route taken by the Massachusetts high court in Goodridge.

(3) Rights-forcing decisions: Mandate the rights of marriage, but not the status, for gay couples. This was the route taken by the Vermont supreme court, and now by the New Jersey supreme court.

Rights-forcing decisions are the “Third Way” in gay-marriage litigation. The gay-marriage litigants in Washington and other states have rejected this remedy. But courts sympathetic to gay-marriage claims in other states will probably see the Third Way as the most attractive option. The advantage of a rights-forcing decision over a status-forcing decision is that it leaves some room for democratic decision – specifically, whether to grant the status of marriage to gay couples. And rights-forcing decisions engender less democratic backlash than do status-forcing decisions, producing potentially more stable gains for gay couples in the long run. On the other hand, rights-forcing decisions may be may prove unstable if they lead to subsequent status-forcing decisions.

Note that the number of states where courts can be expected to be somewhat sympathetic to gay-marriage claims has dwindled to a handful. New Jersey was probably the last, best hope for a full gay marriage victory in a state court for some time to come. California, where gay-marriage litigation is pending, seems more doubtful. In that state, full rights recognition (#3) has already been achieved legislatively so the only real question will be whether the state supreme court is willing to recognize the dignitary concerns that might push it into a status-forcing decision (#2). In a growing list of states, where status-forcing or even rights-forcing judicial decisions were already very unlikely, all three options have been taken off the table by sweeping state constitutional amendments that prevent even ordinary legislative action to protect gay families.

Nevertheless, by the end of next April, New Jersey will join four other states – Massachusetts, Vermont, California, and Connecticut – in giving gay couples access to all of the rights of marriage under state law. All by itself this is a significant development. Of the 300 million people who live in the United States, about 54 million (over 1/6 of the nation’s total population) will live in a state where gay couples have access to the same rights and obligations as married straight couples. Of those 54 million, about 40 million will live in a state where this result was achieved entirely legislatively (California and Connecticut). All of that has happened in just the last six years. The experience we gain and the lessons we learn from protecting gay families under the law in those states will be difficult to ignore in the years to come.

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