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. 

Comments

[Asim Alam]

Your argument is interesting. What you called "Defense by Definition Rationale" is known as Legal Formalism.

In the 1920's and 1930's, the US Supreme Court discredited analysis by Legal Formalism (Law students know it as "Lochner-ism"). Most lawyers will tell you that, in conservative politicians and judges, this form of reasoning is alive & well.

You've just pointed out an excellent example it.

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