One of the cases I have been following on this blog is the New Jersey marriage case Lewis v. Harris. I have written about some of the families involved, as well as some of the issues involved, explaining New Jersey's balancing test which makes this case somewhat different than other marriage suits. Last week the Appellate Court handed down their 2-1 decision (pdf) upholding the lower court ruling in favor of the state. From here the case will most likely move to the New Jersey Supreme Court, but in the meantime I thought I would share some highlights of the majority decision, Judge Parrillo's concurrence, and Judge Collester's dissent. [Throughout I will freely omit internal citations]. This post is a bit lengthy, but then the original three decisions combined for 77 pages!
I. The Majority Opinion (written by J. Skillman)
At issue was the plaintiffs claim that the marriage restriction violated their state due process and equal protection rights as guaranteed by the article I, paragraph 1 of the New Jersey Constitution which reads:
All persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness.
The NJ Supreme Court had previously ruled the above clause includes a right of members of the opposite sex to marry, but the question now was whether it also included the right of members of the same sex to marry. The majority determined it does not do so. They started by noting:
Our Supreme Court has indicated that in determining whether a claimed right is entitled to protection as a matter of substantive due process, a court should "look to 'the traditions and [collective] conscience of our people to determine whether a principle is so rooted [there] . . . as to be ranked as fundamental.'"
The court concluded that marriage between members of the same sex is not deeply rooted in New Jersey's tradition. To further this claim the court examined society's view of marriage:
However, our society and laws view marriage as something more than just State recognition of a committed relationship between two adults. Our leading religions view marriage as a union of men and women recognized by God, and our society considers marriage between a man and woman to play a vital role in propagating the species and in providing the ideal environment for raising children....
...Indeed, the very cases that plaintiffs rely upon for the proposition that there is a fundamental right to marry reflect these common understandings of the religious and social foundations of marriage that limit the institution to members of the opposite sex. For example, in [Turner], the Court noted that "many religions recognize marriage as having spiritual significance; . . . and . . . , therefore, the commitment of marriage may be an exercise of religious faith as well as an expression of personal dedication." In [Zablocki], the Court "recognized that the right 'to marry, establish a home and bring up children' is a central part of the liberty protected by the Due Process Clause," and described marriage "as 'fundamental to the very existence and survival of the race.'"
Two things strike me about this argument. The first is its reliance on religious views. The quote from Turner talks about the spiritual significance of marriage and it being an exercise of religious faith. And yet the court rejected this amicus brief filed by more than 100 New Jersey clergy members from a variety of faiths arguing that this religious and spiritual dimension is equally vital for homosexual couples and their religious communities. The majority certainly deemed religious support significant as they note:
Indeed, there is arguably a stronger foundation for challenging statutes prohibiting polygamy than statutes limiting marriage to members of the opposite sex "because, unlike gay marriage, [polygamy] has been and still is condoned by many religions and societies."
The other thing that struck me was the angle the court took with the procreation argument. The court explains in footnote 2 [emphasis added]:
The Attorney General disclaims reliance upon promotion of procreation and creating the optimal environment for raising children as justifications for the limitation of marriage to members of the opposite sex. However, several amici curiae, including the New Jersey Coalition to Preserve and Protect Marriage, the New Jersey Family Policy Council and the New Jersey Catholic Conference, argue that our current form of marriage provides an environment in which procreation may be embraced and the optimal condition established for child rearing. Although an amicus curiae is ordinarily limited to arguing issues raised by the parties, an amicus may present different arguments than the parties relating to those issues. We also note that plaintiffs were afforded an adequate opportunity to answer those arguments; in fact, half of their reply brief is devoted to those arguments. Therefore, we consider the amici's arguments regarding procreation and child rearing to be properly before us. In any event, there is no need for us to determine the validity of those justifications for limitation of the institution of marriage to opposite-sex couples. We only note that the historical and prevailing contemporary conception of marriage as solely a union between a single man and a single woman is based partly on society's view that this institution plays an essential role in propagating the species and child rearing.
Once the court established that there was no due process right to marry someone of the same sex, it quickly dismissed the equal protection argument:
In contrast, the essential question in this case is whether same-sex couples have any constitutional right to marry. For reasons set forth at length in section I of this opinion, we are satisfied that only members of the opposite sex have a constitutionally protected right to marry. Therefore, plaintiffs have failed to satisfy their threshold burden to show the existence of an "affected right," and for that reason the State is not required to show that the "public need" for restrictions upon that right outweigh plaintiffs' interest in its exercise.
That last statement was in reference to the balancing test about which I had written previously, and the court did not apply it because there was no "affected right".
II. Judge Parrillo's Concurrence
Judge Parillo briefly noted the distinction between the right to marry, and the rights of marriage. He noted that with the passage of New Jersey's domestic partnership law, the plaintiff's could avail themselves of many of the rights of marriage. He noted that if there was a specific right of marriage that was not contained in the DP law, the plaintiffs could seek to challenge access to that specific right, as he wrote:
Of course, to the extent those laws unconstitutionally withhold any of the publicly-conferred tangible or intangible benefits of marriage from same-sex couples, plaintiffs remain free to redress any such deprivation on an ad-hoc basis, by challenging the particular statutory exclusion resulting in disparate or unfair treatment.
This same idea was also mentioned in the majority opinion:
...and they may enter into domestic partnership unions under the Domestic Partnership Act that entitle them to many of the same legal benefits enjoyed by married opposite-sex couples. Moreover, domestic partners may assert claims that the due process and equal protection guarantees of article I, paragraph 1, of the New Jersey Constitution entitle them to additional legal benefits provided by marriage.
I found it interesting that in California a court used the existence of a domestic partnership law as an argument against prohibiting same-sex marriage, and here such a law was used in favor of the prohibition. In any case, the concurrence continued onto the procreation argument:
The simple fact is that the very existence of marriage does "privilege procreative heterosexual intercourse." Marriage, plainly speaking, is a privileged state and that is precisely why plaintiffs are waging this battle. Procreative heterosexual intercourse is and has been historically through all times and cultures an important feature of that privileged status, and that characteristic is a fundamental, originating reason why the State privileges marriage. When plaintiffs, in defense of genderless marriage, argue that the State imposes no obligation on married couples to procreate, they sorely miss the point. Marriage's vital purpose is not to mandate procreation but to control or ameliorate its consequences - the so-called "private welfare" purpose. To maintain otherwise is to ignore procreation's centrality to marriage...
...Indeed, there are reasons for limiting unfettered access to marriage. Otherwise, by allowing the multiplicity of human choices that bear no resemblance to marriage to qualify, the institution would become non-recognizable and unable to perform its vital function.
III. Judge Collester's Dissent
Judge Collester started his dissent by noting the duties and limitations of the court:
In the ongoing public debate there are persons of intelligence, sensitivity and good will on each side of the issue. Some believe that lawful marriage between persons of the same gender would undermine the essential nature of both marriage and family life. Others argue that it would give proper recognition to committed same-sex relationships and by doing so enhance marriage. Our function as judges is to interpret the Constitution, not rewrite it, and our interpretation must be principled rather than skewed to fit an individual philosophy or a desired result. Nonetheless, we must interpret our Constitution to uphold individual rights, liberties and guarantees for all citizens even though our conclusion may disappoint or offend some earnest and thoughtful citizens.
The court then noted that crucial to the right to marry is the right of the individual to have the choice in his or her spouse, subject to the state's proper exercise of its authority:
The right to marry is effectively meaningless unless it includes the freedom to marry a person of one's choice. In [Loving], the United States Supreme Court struck down laws prohibiting interracial marriage under both the Due Process and Equal Protection Clauses of the Federal Constitution. Zablocki invalidated a Wisconsin law requiring a person under a child support order to meet financial requirements and seek court approval in order to marry. Prison inmates cannot be foreclosed from marrying a person of their choosing, who is either inside or outside the institution. See also, Vasquez v. Dep't of Corrections, (holding the denial of a request by an inmate serving a life sentence violated her constitutional right to marry).
Statutory restrictions on the right to marry are few, and they are grounded in the State's proper regulatory authority, commonly called its police power, to protect general health, safety and welfare. Marriage is prohibited to a child, a close relative, a mental incompetent or a person afflicted with a venereal disease in a communicable stage. None of the plaintiffs in this case fall within these proscribed categories, and neither the State nor the majority opinion suggest a reason of health, safety or general welfare to justify a prohibition of their right to marry the person of their choosing.
After discussing the families involved in this case, Judge Collester moved to the fundamental area of disagreement:
My colleagues and I agree as to the fundamental nature of the right to marry, but they reject plaintiffs' constitutional claims by defining marriage strictly as heterosexual unions. By this definition, plaintiffs are not deprived of the right to marry as long as it is to a member of the opposite sex. But since they cannot marry the person of their choice, it is really no right at all. By so defining marriage, the majority views plaintiffs' assertion of a right to marry as a claim of a different kind of right or to a different kind of marriage, which is beyond judicial authority to recognize as lawful...
...The argument is circular: plaintiffs cannot marry because by definition they cannot marry. But it has the advantage of simplicity. If marriage by definition excludes plaintiffs from marrying persons of their choosing, then, unlike all others, they have no fundamental or constitutionally protected right and must seek creation of that right through the political process and a legislative redefinition of marriage. Therefore, opposite-sex marriage is a tautology. Same-sex marriage, an oxymoron. We need go no further. Case closed.
I disagree with both the analysis and the result. To cabin the right to marry within a definition of marriage which prohibits plaintiffs from even asserting a constitutional claim for entitlement to marry the person of their choosing robs them of constitutional protections and deprives them of the same rights of marriage enjoyed by the other individuals of this State, even those confined in State prisons.
After recasting the issue as to whether plaintiffs' claim fits within the restricted definition of marriage, not surprisingly the majority finds no support for marriage between same-sex persons that is "deeply rooted in this Nation's history and tradition" or "implicit in the concept of ordered liberty," and thereby declares that plaintiffs have no fundamental right of marriage.
The analysis is reminiscent of arguments in support of anti-miscegenation laws before Loving. Those laws defined marriage as the union of a man and woman of the same race, and proponents presented a long history in support of the definition. Indeed, in Loving the State of Virginia argued that there was no fundamental right to interracial marriage because "the historic tradition of marriage" did not contemplate such marriages. In rejecting the argument, the Supreme Court framed the issue not as a claim of right to interracial marriage but rather as an assertion of a fundamental right to marriage.
The dissent then looked at the religion and history argument:
The majority grounds its definition of marriage excluding persons of the same sex upon historic or religious tradition as well as the societal value attached to procreation. In my view, the first reason is unpersuasive, the second, irrelevant.
With respect to religious beliefs and traditions, it is clear that no matter how marriage is defined, the marriage ceremony has spiritual significance to most, and many consider it a sacrament or exercise of religious faith...
The dissent agreed that in 1947, when the NJ Constitution was ratified, the idea of homosexual marriage was not considered, but that laws of marriage have changed as society's view of marriage had changed:
Certainly, marriage was not perceived as a partnership to the extent that it is today. The common law concept of marriage as a unity was still prevalent. Interspousal immunity from civil suit, then considered fundamental to marriage, was not rejected until decades later. The unity of marriage precluded spouses from being co-conspirators until the 1970s. A more egregious example was the marriage defense to rape, whereby a husband could avoid prosecution because marriage was a unity and consent by the wife to sexual intercourse was implied.
By far the greatest changes in marriage as it has evolved from its common law unity to a partnership were in terms of its dissolution. Equitable distribution of property acquired during marriage, rehabilitative alimony, child support guidelines and joint custody are just some of the issues which judges routinely consider, but they were outside the scope of divorce litigation law a generation past. Indeed, divorce was relatively uncommon when our State Constitution was adopted. Current estimates are that up to fifty percent of marriages end in divorce, most of which are granted on no-fault grounds, which did not exist in 1947. The dynamics within marriage have also undergone great changes. Married couples, with or without children, are commonly both employed. Single parent households have multiplied as divorce rates have climbed, and adoptions are now more readily available to unmarried persons, including same-sex couples.
Finally the dissent addressed the procreation argument that the court had revived:
Although the Attorney General disclaims the promotion of procreation as a rationale for prohibiting same-sex marriage, the majority does give it weight, stating that "our society considers marriage between a man and woman to play a vital role in propagating the species and in providing the ideal environment for raising children." I agree with the Attorney General. Procreation is irrelevant to the issue before us...
...However, there is not, nor could there be, a threshold requirement to marriage of the intention or ability to procreate. Of course many heterosexuals marry for reasons unrelated to having children. Some never intend to do so. Some are unable to do so by reason of physical inability, age or health. Moreover, tying the essence of marriage to procreation runs into cases upholding as a right of privacy the election not to procreate.
Also if procreation or the ability to procreate is central to marriage, logic dictates that the inability to procreate would constitute grounds for its termination. However, as opposed to the inability or unwillingness to engage in sexual intercourse, the inability or refusal to procreate is not a legal basis for divorce or annulment. Finally, the claim that the promotion of procreation is a vital element of marriage and justifies exclusion of persons of the same gender falls on its face when confronted with reproductive science and technology. The fact is some persons in committed same-sex relationships can and do legally and functionally procreate. Cindy Meneghin, Maureen Kilian, Karen Nicholson-McFadden and Marcye Nicholson-McFadden, all plaintiffs in this case, each gave birth to their children following artificial insemination.
Moreover, the majority mentions the conventional wisdom of "the role that marriage plays in procreation and providing the optimal environment for child rearing," but no authority is given to justify this "optimal" status. This presents simply as an article of faith and one which ignores the reality of present family life parenting, which includes adoption, step-parenting and the myriad of other relationships of parenting noted by our Supreme Court in V.C. Further, the argument that opposite-sex persons provide a more suitable environment for raising children because they are married simply underscores that plaintiffs and their children are unjustly treated by denying them a right to marry their committed partners. Finally, there is nothing in the record to indicate that the eight plaintiffs in this case currently raising or having raised children as natural parents, adoptive parents or step-parents, are providing an environment for growth and happiness of the children that is anything less than optimal.
At this point the dissent related the details of a case relied upon by the majority. That case M.T. v J.T. concerned the validity of a marriage involving a postoperative transsexual:
We held that M.T. was a woman, that the marriage was valid and that she was entitled to support for the following reason:
Plaintiff has become physically and psychologically unified and fully capable of sexual activity with her reconciled sexual attributes of gender and anatomy. Consequently, plaintiff should be considered a member of the female sex for marital purposes. It follows that such an individual would have the capacity to enter into a valid marriage relationship with a person of the opposite sex and did so here.
I gather from M.T. that a relationship qualifies as a lawful marriage if the genitalia of the partners are different so that they can engage in sexual intercourse. Accordingly, history and procreation are irrelevant provided surgery is successful, and the new woman and her partner are then entitled to a constitutional right to marry that neither he nor she had in the pre-op room. Constitutional rights should not be limited by genitalia or the ability to engage in a particular form of sexual intimacy.
Finally the dissent concluded by addressing equal protection and essentially agreeing with the concurrence that this case was about more than just the rights of marriage:
As to equal protection, my conclusion is the same. Our Constitution and the Federal Constitution require that all similarly situated people be treated alike. It is disingenuous to say that plaintiffs are treated alike because they can marry but not the person they choose. By prohibiting them from a real right to marry, plaintiffs as well as their children suffer the real consequences of being "different." While the Domestic Partnership Act gives, at some cost, many, but not all, of the benefits and protections automatically granted to married persons, we have learned after much pain that "separate but equal" does not substitute for equal rights...
...What Sarah Lael and her partner lack and seek may be summed up in the word dignity. 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.
With great admiration for the wisdom, logic and eloquence of my colleagues, I must dissent.
We will have to wait and see how these opinions resonate with the New Jersey Supreme Court and ultimately with the public.