Same-Sex Marriage In New Jersey

The New Jersey Supreme Court, which had previously ruled that same-sex couples must be granted the same rights as heterosexual married couples, ruled in September that civil unions no longer satisfy that ruling, and that New Jersey must allow couples to marry starting October 21. The state said, “hey, we’re appealing, can we hang on until you rule on the appeal?” and the court just said, “Nope.”

You should read the decision, not just because of the great line “when a party presents a clear case of ongoing unequal treatment, and asks the court to vindicate constitutionally protected rights, a court may not sidestep its obligation to rule for an indefinite amount of time.” (This was in response to the state saying, “let the democratic process take its course.”) And not just because the court strongly hints that the state’s appeal is going to fail (one of the criteria for granting a stay is if the plaintiff makes a strong case that their appeal will succeed, and the court said several times that the state did not make that case).

What’s interesting to me is that this kind of takes the U.S. Supreme Court decision in June–which said, you recall, that because SOME states allowed same-sex marriage, those couples were being denied federal benefits, and that was unconstitutional–and turns it around. The court found that because NJ couples in civil unions could not get the federal benefits that married couples could, those couples were not being served under NJ’s constitution’s equal protection clause.

So while the U.S. Supreme Court seemed to leave marriage to the states–if you allow same-sex marriage, we’ll honor it, and if you don’t, we don’t care–this decision actually looks at it from the state level as part of a union. In effect, NJ is saying that because its same-sex couples don’t get the benefits they could get if the state allowed marriage, they are being discriminated against.

It’ll be interesting to see how many other states follow this line of reasoning…

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