Galois

Models of Marriage

At MarriageDebate.com, Maggie Gallagher notes a significant development from the Lewis decision, especially from Judge Parrillo's concurrence.  The opinion cites work of Dan Cere to the effect that there are competing models of marriage out there.  The Massachusetts court in Goodridge espoused the "close personal relationship" model of marriage which the New Jersey court rejected in favor of what I guess is the "procreative" model of marriage.  I'm trying to figure out what model of marriage I would espouse.  My views on marriage are pretty well summed up by Maggie Gallagher and Linda Waite when they wrote in The Case for Marriage:

Despite changing attitudes toward sex and gender roles, the substance of the marriage vow as Americans understand it has changed surprising little.  Marriage is, above all, seen as a permanent union ("until death do us part"), which includes the promise of sexual union ("forsaking all others"), of financial union ("with all my worldly goods I do thee endow"), and of mutual support ("to love, honor, and cherish").
Each part of this public vow is part of the punch marriage packs, the secret to its power to change lives.  But if one part of this package is more important than the others, it is probably the promise of permanence.

The promise of permanence is key to marriage's transformative power. People who expect to be part of a couple for their entire lives--unless something awful happens--organize their lives differently from people who are less certain their relationship will last.  The marriage contract, because it is long-term, encourages husbands and wives to make decisions jointly and to function as part of a team.  Each spouse expects to be able to count on the other to be there and to fulfill his or her responsibilities.  This expectation of  a long-term working relationship between husband and wife leads to substantial changes in their behavior, of which the most important is, perhaps, what economists call specialization.

I believe that model of marriage, the "promise of permanence" model can and should be applied homosexual couples as well as heterosexual couples.  I don't believe that marriage is essentially a procreative union, although of course many married couples will procreate and marriage is the optimal setting for procreation because of how it transforms the relationship.

Lewis v. Harris: Appellate Division

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. 

 

Tradition, Tradition!

In the courts, states have had a hard time explaining what possible justification there can be for denying same-sex couples the right to marry.  The two most common arguments given in the past are that the state would like to restrict marriage to couples who can procreate and the state would like provide the best environment for raising children.  More and more courts though have pointed out the severe problems with these arguments.  The first must deal with the fact that the state allows--and at times makes it easier--for non-procreative couples to wed.  While it is true that under the rational basis test a statute may be over-inclusive or under-inclusive in achieving its goals it seems laughable to suggest that the state does not really want non-procreative couples to marry and does so only through oversight or lack of convenient way to prevent it.  The second argument fares even worse.  It tends to backfire as courts agree that marriage can be vitally important to the children involved and thus the state has no business denying the children of same-sex couples this invaluable protection.  It is not surprising then that many states have recently stopped making these arguments (although Washington is one notable exception to this trend). Instead states like New Jersey, New York, and California have switched primarily to a claim that the state has an interest in preserving the traditional notion of marriage.  It is for the sake of tradition that same-sex couples must be excluded from marriage. 

I am actually somewhat sympathetic to the tradition argument.  First of all, unlike the other arguments present above I believe this one is sincere.  I think many people do oppose same-sex marriage because it disrupts their traditional concept of marriage.  This can explain why support for civil unions for same-sex couples has generally been stronger than that for marriage.  Civil unions provide a way to offer some of the protections of marriage without breaking from tradition.  It also explains why many groups opposed to same-sex marriage talk about supporting, protecting, or defending traditional marriage but we don't see proposals for license plates asking to support procreative marriage.   

I also find myself agreeing that tradition is important.  It provides stability and continuity with the past.  Tradition can be quite comforting and reassuring as we constantly face changes throughout life.  It can be particularly distressing to see changes to traditions concerning family and religion as they are areas we associate with continuity and comfort.  Because I find tradition so important I would concede that it could be a rational basis for legislation. There is something to be said for continuing to do something the way it has been done provided there is no good reason to change.  But of course that is not the situation we face with same-sex marriage.  The law as it stands violates our right to equal protection and harms families.  When tradition is accused of being discriminatory it is hardly a defense to say that the discrimination is traditional.

This is particularly the case when we deal with traditions concerning the role of gender in our society.  Traditions have long dictated distinct roles for women and men.  In our present day those traditions have come into conflict with our ideals of equality and liberty.  There is a belief that we should all have equal opportunities without regard to our gender; and we should have the  liberty to pursue  our dreams without the government using our gender to dictate our decisions for us.  These new beliefs have caused many of our traditional laws to change.  Some of those changes were initiated through the legislative process, some through executive orders, and many have come through court orders.  The area of family law has been especially ripe for change in this regard.  The role of each gender was perhaps no where more differentiated than in the home.  At one point a woman lost all separate legal identity at the time of marriage.  Only the husband could own property.  These laws were challenged, often in the courts.  If tradition had been an acceptable defense, the laws of marriage would not have changed.  If tradition had been an  acceptable defense, VMI would still exclude women.  Fortunately our new ideals won out over or older traditions.

I find it remarkable to read in the same legal brief that the laws forbidding same-sex marriage have nothing to do with gender discrimination and a few pages later that they are necessary to preserve our traditions regarding marriage.  Do they not realize that the tradition to which they appeal is one based upon the same gender discrimination they deny exists?  Yes marriage has generally always been between a man and a woman, but when in that time has it not also always defined distinct gender roles? 

It is difficult to resolve the tension between tradition and change.  Too rigid an adherence to tradition prevents us from progress in achieving our ideals.  A rush to change in blindness to tradition can leave us feeling adrift and lost.  The key must be not to abandon our traditions wholesale, but rather to gradually modify them when and where necessary so that our traditions evolve.  That is what has happened with marriage as we have seen it gradually lose its gender based distinctions emphasizing instead aspects of mutual responsibility and commitment.  To keep the gendered entrance requirements of marriage based upon an allegiance to these past traditional distinctions would be a repudiation of the changes we have made toward gender equality.  No court should be making that repudiation.

 

New Jersey's Balancing Test

Last week I mentioned how the Washington State Supreme Court was about to hear oral arguments in two same-sex marriage cases.  As the other same-sex marriage cases around the country are currently before lower courts Washington will almost certainly be the location for the next major development in the movement for same-sex marriage.  Still that won't be for some time.  Arguments won't be heard until March 8 and it will likely be several months or more after that before a decision is handed down.  Before then we will likely hear from at least two lower courts on the subject. These decisions will be far less significant as they will undoubtedly be appealed, nevertheless it will be interesting to see what conclusions are reached and why in those cases.  In California, San Francisco County Superior Court Judge Richard Kramer heard arguments in the case of Woo v. Lockyer at the end of last December.  A decision from him is expected any day now.  Likewise a decision is expected shortly in the New Jersey case of Lewis v. Harris which is currently before the New Jersey's Appellate Division of Superior Court an intermediate Appellate Court.  A panel there heard oral arguments last December 7.  It is this case I would like to focus on today.  Last May I introduced my readers to the families involved and some of the harms they suffered.  Today I thought I would try to explain the arguments presented as I understand them.

In most other states and in the federal courts when there is a claim of a denial of equal protection or due process the court first determines what level of scrutiny to apply (basically the idea is how much deference to give to the legislature).  In general the court gives the legislature great latitude and the legislation must only be shown to be rationally related to achieving a legitimate state interest.  If the legislation infringes on a fundamental right, though, or if it discriminates against a suspect class (or perhaps on a suspect basis), it will be held to a higher standard and the state will have a heftier burden.  It will have to demonstrate both that its interests in the legislation are more important, and that the legislation is more likely to be necessary to achieve these goals. 

The New Jersey courts, however, have tended over the past thirty years to use a different scheme when analyzing violations under the state constitution.  They use a three part balancing test when dealing with equal protection and/or due process claims.  The court asks (1) What is the nature of the plaintiff's interest being affected? (2) How much of an intrusion is there upon those interests? And it weighs those answers against (3) How great is the public need for that intrusion?  The result of this test will often lead to the same conclusion as the traditional federal test, but the New Jersey Supreme Court has found the balancing test offers a more flexible approach that can better get to the key clash between individual and governmental interests that lie at the heart of these disputes.  So let us look at how the plaintiffs answer the above questions in this case.

(1)  Plaintiffs have extremely weighty interests in marrying their chosen partner.  They spend 36 pages explaining how everybody has such extreme interests and these interests do not diminish because one's partner happens to be of the same sex.  Here is a very brief outline of how important marriage is to a couple (quotes are from appellant's brief):

1. Marriage expresses the deepest possible personal commitment of a couple to one another.  "Many individuals do not want to intertwine their life so deeply with the life of another person unless there is every reason to believe that each will give the maximum effort to succeed in the relationship, and marriage is widely considered the best vehicle for doing so."  This commitment can help couples get through difficult times.
2. "Marriage is an expression of one's values and beliefs."  "The expression of one's values can be particularly important for parents who want to be role models for their children and impart their beliefs in the importance of marriage."
3. Marriage is in itself the realization of a shared societal dream.  "For many, marrying and settling down to raise children is at the core of dreams for their future, a central way to participate as an adult in our society."  This dream is not just one for the couple getting married but often for their parents and family as well giving them some security that their loved one will be secure and well cared for through life (both emotionally and materially).
4. "Marriage is a gateway to a comprehensive legal structure that strengthens and supports families."   This structure is truly comprehensive and includes both responsibilities and benefits.  One cannot duplicate this structure piecemeal through some alternate structure like domestic partnerships.  "The broad matrix of interlocking rights and responsibilities created through the singular status of legal marriage reaches into virtually every dimension of a couple's life and provides a level of support for the relationship unparalleled anywhere else in the statutory framework." One area in particular that threatens the welfare of children in these families is the benefit of automatic and immediate legal relationship to both parents of a child conceived through assisted insemination as opposed to the current situation of a lengthy, costly, and intrusive adoption process.
5. Because of the deep public commitment involved in marriage it opens the door to a web of social support that "further builds and shelters the family."  That is just by knowing that a couple is married the rest of society can presume a certain level of commitment and obligation the couple has to one another and treat them accordingly.  This can be extremely important in emergency medical circumstances.

Note that these interests apply just as well to same-sex and opposite-sex couples.  There is no getting around how important marriage can be for the individual and the family and that importance does not depend on gender.

(2)  The couples are completely excluded from this vital institution.  No domestic partnership plan can replace the vast significance of the marital relationship.

(3)  The only interests expressed by the state were a need to preserve the traditional definition of marriage and to maintain uniformity of laws with other states.   The couples' attorneys argue that preserving a definition cannot itself justify an infringement.  The whole question is why this definition is vital to the public need and the state avoided that question.  As for the need for uniformity, the laws of New Jersey and in particular family laws already differ from other states.  If the New Jersey constitution forbids a certain discrimination it cannot be justified because other states allow it. 

The trial court pretty much rejected not only the plaintiff's claims, but the whole balancing test analysis by saying marriage was by definition between a man and a woman, so no rights were infringed here.  They also pointed out that plaintiffs could still marry somebody else or get a domestic partnership.  This sort of defense by definition rationale for prohibiting same-sex marriage has been rejected by most courts in the past 15 years so it will be interesting to see how the Appellate Division reacts to it.  We should know soon. 

Lewis v. Harris: The Families

Lambda Legal filed their appeal brief today in the case of Lewis v. Harris, a lawsuit seeking marriage equality in New Jersey.  The suit is currently before the appellate division and will most likely end up before the New Jersey Supreme Court regardless of how the appellate court rules.  At some point in the near future I'll write about the legal arguments in the case, but for now I just want to focus on the families involved.  What follows is the statement of facts from the brief, with only the internal citations omitted.

The facts of this case are undisputed.  The plaintiffs are seven New Jersey couples who have been denied the right to marry solely because they are committed same-sex couples.  These couples live in communities spanning the state--from Butler, Pompton Lakes, Union City, Newark, Franklin Park, and Aberdeen to Haddonfield.  The plaintiffs include a Federal Express dispatcher, an ordained minister, an investment asset manager, a university web services director, a church administrator, a speech therapist who works with special needs children, a non-profit organization administrator,two pastors, a nurse, a small business owner, and co-owners of an executive search frim who have alternated being stay-at-home moms.

Most of these couples are very active in their communities.  The plaintiffs serve on local zoning and planning boards, sit on the boards of trustees of a community hospital and a YMCA camp, act as a Police and Fire Chaplain, participate in local business and professional associations and a variety of church activities, and volunteer as school class moms, youth soccer coaches, PTA members, and soup kitchen workers.

Many of the plaintiff couples are raising children together.  Cindy Meneghin and Maureen Kilian have two children: Josh (age 10) and Sarah (age 8).  Sarah and Suyin Lael are the parents of three girls: Zemali (age 6), Tanaj (age 4) and Danica (age 3).  At the time of the filings below, Karen and Marcye Nicholson-McFadden had a 4-year old son named Kasey and a newborn daughter, Maya.  Marilyn Maneely and Diane Marini have raised five children together, the youngest of whom recently left home for college.  Alicia Toby and Saundra Heath are now grandparents.  Many of the plaintiffs also have shared in the care and support of each other's elderly parents and are deeply involved with one another's extended families.

The plaintiffs have been in committed relationships with their respective partners for periods of between one and three decades.  Dennis Winslow and Mark Lewis have shared their lives for 11 years.  Marilyn Maneely and Diane Marini have been together 12 years.  Sarah and Suyin Lael have been comitted to one another for 13 years.  Alicia Toby and Saundra Heath have been partners for 14 years, as have Karen and Marcye Nicholson-McFadden.  Cindy Meneghin and Maureen Kilian met in their teens at church, became high school sweethearts, and have been a committed couple for over 29 years.  And Chris Lodewsyks and Craig Hutchinson, who met in college and are now in their early fifties, have been in a committed relationship for 32 years.  The level of commitment and love these couples feel is no different than their married friends.

In June of 2000, each of the plaintiff couples appeared before the officer authorized to issue marriage licenses in the municipality or county where the couple resides and requested a marriage license.  Each couple fulfilled all of New Jersey's statutory requirements for the issuance of the license, except for the fact that they were same-sex couples.  The government officials in each instance refused to grant them the liense and turned them away solely because they were a same-sex couple. 

The harms each of the plaintiffs has suffered by being denied the ability to enter a civil marriage with the one person who is the love of his or her life are multiple, ongoing, and often of momentous import.  Some are very tangible, economic injuries.  For example, Cindy and Maureen have had to pay for expensive cross-adoptions of their children that would not have been necessary had they been married.  Karen and Marcye likewise had to pay for second-parent adoptions and, over the years, have paid four lawyers, a financial planner, and a tax accountant ot advise them on ways best protect their family that married couples never need even consider.  Karen and Marcye, as well as Sarah and Suyin, have had to maintain two separate health plans and pay double deductibles that would not have been necessary had they been allowed to wed.  Without marriage, Alicia and Saundra likewise have had higher health insurance and other costs and less disposable income.  As a result, they have not even been able to afford a lawyer to drap up documents providing the few protections unmarried couples can secure in that way.  The higher expenses Maureen and Cindy have experienced because they could not mary has meant that they couldnot afford to have one of them stay at home while their children were little, as they believed was best.  For Suyin and Sarah, these costs have affected their educational and career choices.  As someone who legally was married earlier in life, Marilyn once enjoyed the discounts on insurance, car rentals, and travel and the employment benefits that are not available to her and Diane or to other committed same-sex couples because the State excludes them from marriage. 

Some harms in being excluded from marriage are not financial, but still are quite significant.  For example, unlike married couples who have children through assisted insemination, Maureen and Cindy had no presumption that they were both legal parents of their children and had to undergo invasive home visits by social workers, disclose highly personal information, an dworry for three years while their children's legal status with one parent was unresolved pending finalization of cross-adoptions.  Karen and Marcye similarly had to undergo invasive home studies, fingerprinting, and an FBI background check, and many months of uncertainty to adopt their own children.  Sarah was not entitled to family leave or family sick days when Suyin needed surgery and then support during her recovery.

These harms will remain notwithstanding the State's recent passage of a domestic partnership law, as explained below.  Moreover, that law does not address any of the noneconomic harms the couples experience in being denied the freedom to marry.

Among those are serious dignitary harms.  Committed same-sex couples like the plaintiffs live in constant insecurity about what might happen to them in times of crisis or tragedy without a marriage.  When Diane struggled with treatment for breast cancer, when Marilyn was hospitalized after a car accident, and when Cindy was taken to the emergency room with meningitis, each had to worry about whether the most important person in her life would be treated as importantliy as a spouse.  As a nurse for 30 years, Marilyn knows first-hand the difference it makes when a visitor can convey the privileged status of a spouse and what it means when they cannot.

Even times of joy--both large and small--are undermined by being denied access to marriage.  When Marcye gave birth to Kasey after a long labor, Karen's role needed to be established over and over again, even in the newborn nursery, when the word's "we're married" would have averted this.  Instead of being able to celebrate at others' weddings, the plaintiffs feel sadness and heartache at their own exclusion from marraige.

Each of these couples is denied entry into the institution that would best express the commitment and the core values of integrity, community, honor, respect and love the couple shares.  The State's refusal to grant them marriage licenses has thwarted dream they have held since their youth.  For those for whom marriage has a religious dimension, the harm is also spiritual in nature.

For all of the plaintiff couples, without being able to invoke the word "marriage," they are forced to try to provide explanations that demean their relationship, at least in part because an explanation has to be made at all.  On a daily basis, they experience the insult and unfairness of being individuals whose government openly treats them unequally.  For Dennis and Mark, pastors who have officiated at hundreds of legal marriage ceremonies as agents of the State, they are put in the humiliating position of signing marriage licenses for other couples, while the State will not allow them to get one for themselves.

Without accesss to marriage, each of these couples' relationships is devalued routinely.  They have to check "single" on froms at doctor's offices and their children's schools or have to attempt to rewrite forms that acknowledge only married or single people.  Because they cannot say they are married, their relationships are seen as less worthy, or even of no significance, by many.

The plaintiff couples worry acutely about the messages their children are receiving because the goverment does not allow their parents to marry.  They also feel deeply the loss other family members experience because of the bar to their marriages.  One of the most painful sadnesses in Marcye's life is that her mother and father did not live long enough to see her married, and Maureen wishes her mother could have had the joy and peace that being part of a wedding ceremony for Maureen and Cindy would have brought her.   Several of the plaintiffs' parents further attest ot the harms their children and grandchildren suffer because the State denies the plaintiff couples access to legal marriage.

Real People and Their Lives

I actually enjoy reading the legal briefs that are filed in same-sex marriage cases.  Something about how the attorneys present the case in a logical orderly fashion with supporting case law appeals to me.   At the end of this post I'll provide links to some of the briefs filed in recent cases in Massachusetts and New Jersey.  Sometimes it's easy to forget, though, how these cases greatly affect the lives of the people involved.  People who are trying hard to protect their families.  So today I went back and read about the families in Massachusetts who fought long and hard for marriage rights, and the families in New Jersey still struggling for this protection.  The complaint in today's case of Andersen v. Sims filed in Washington tells us a few things about each of the six plaintiff-couples and their respective families continuing the fight in that state.  And thousands of couples have been able to marry recently in San Francisco.   One family that took advantage of this wonderful opportunity was the Lathe-Berryessa family.  You can read about their wedding day as well the rest of their everyday joys and struggles in parenting at their journal, Daddy, Papa & Me. 

There are those that say these families must somehow earn this protection that others take for granted by convincing state legislatures to amend the laws.  (And then they must convince the legislature of every other state to which they may someday travel or with which they may have some legal contact.)  It's important to realize that even the limited protections families have been able to win in a few legislatures would not have been possible without the lead of the courts.  Such was the case in the civil rights struggle of the 1940's-1960's as well.  Judges are required to read, in detail, both sides of the case.  They take seriously their allegiances to past precedents and their constitutions.  These judges are not the tyrants some have made them out to be.  State legislatures, on the other hand, will often simply  avoid the issue because of political expediency. 

Below are a few of the briefs from recent cases Massachusetts and New Jersey (to simplify things I have labeled the briefs as either pro or anti SSM instead of plaintiff, appelant, etc.):

• Pro-SSM in MA
  
• Anti-SSM in MA
  
• Pro-SSM in NJ
  
• Anti-SSM in NJ
  
• Pro-SSM Amici in MA
  
• Anti-SSM Amici in MA