No Easy Answers
Monday, October 30, 2006
Libby Motion to Preclude Reporter Litigation Evidence [Doc 167]
Case 1:05-cr-00394-RBW Document 167 Filed 10/30/2006 Page 1 of 12
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA )
)
v. ) CR. NO. 05-394 (RBW)
)
I. LEWIS LIBBY, ) Oral Argument Requested
also known as "Scooter Libby," )
Defendant. )
I. LEWIS LIBBY'S MOTION IN LIMINE TO EXCLUDE EVIDENCE
RELATING TO REPORTERS' FIRST AMENDMENT LITIGATION,
CONTEMPT PROCEEDINGS, AND JUDITH MILLER'S INCARCERATION
I. Lewis Libby, through his counsel, hereby moves in limine to preclude the government
from presenting evidence or argument at trial concerning any of the following four topics:
1. Whether any news reporters refused to testify in the government's investigation of
the disclosure of Valerie Wilson's identity (the "investigation");
2. Litigation involving news reporters and relating to the investigation, including
any news reporters' motions to quash grand jury subpoenas;
3. Threatened or actual contempt proceedings against any news reporter, including
Judith Miller and Matthew Cooper, relating to the investigation; and
4. Judith Miller's imprisonment for contempt of court, including the letter dated
September 15, 2005 that Mr. Libby sent to Ms. Miller in jail.
The government has indicated that it plans to argue at trial that Mr. Libby felt free to lie
about his conversations with reporters because he expected that they would not cooperate with
the investigation. The defense is concerned that the government will attempt to use the evidence
we seek to exclude as part of an unfair and misleading effort to prop up this implausible
argument. Such evidence also threatens to lure jurors into mistakenly believing that Mr. Libby
did something to impede the government from obtaining testimony from certain reporters. Of
Case 1:05-cr-00394-RBW Document 167 Filed 10/30/2006 Page 2 of 12
course, just the opposite is true. Mr. Libby voluntarily waived all confidentiality guarantees he
had received from reporters and repeatedly requested them to testify.
None of these issues has any relevance to the charges against Mr. Libby. The reporters
who resisted testifying grounded their legal challenges on the First Amendment, reporters'
privilege, and principles of journalistic ethics. Neither the litigation concerning reporters'
motions to quash the grand jury's subpoenas nor the related contempt proceedings are probative
of whether Mr. Libby lied to the FBI or the grand jury. Mr. Libby's state of mind is at issue in
this matter--not the litigation strategies of reporters.
If necessary, the defense is prepared to establish at trial that no reporter refused to comply
with a subpoena or went to jail at Mr. Libby's behest. But proving this point would require a
lengthy "trial within a trial" involving extensive testimony from many additional witnesses,
including the attorneys who represented certain reporters. The defense may even need to call the
Special Counsel to testify about his discussions with counsel for Mr. Libby and counsel for
reporters concerning the voluntariness of Mr. Libby's waiver. To avoid such unnecessary
distractions, the subject matters listed above should be excluded at trial.
MEMORANDUM OF LAW
BACKGROUND
A. Mr. Libby Released All Reporters From Their Pledges Of Confidentiality To Him.
Shortly after the government's investigation of the disclosure of Valerie Wilson's identity
began, Mr. Libby was interviewed twice by the FBI, on October 14 and on November 26, 2003.
Mr. Libby answered questions during these interviews about his on- and off-the-record
conversations in June and July 2003 with numerous reporters, including Tim Russert, Matthew
Cooper, and Judith Miller, all of whom are mentioned in the indictment, as well as Evan Thomas
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of Newsweek, David Sanger of the New York Times and Glenn Kessler of the Washington Post,
who are not.
During the second interview, the FBI asked Mr. Libby to release reporters it wanted to
question from any promises of confidentiality they had made to him, and to request that they
fully disclose any conversations they may have had with him regarding former Ambassador
Joseph Wilson or his wife. Consistent with his desire to cooperate fully with the investigation,
Mr. Libby signed such a waiver on January 5, 2004. See Statement & Waiver of I. Lewis Libby
(Jan. 5, 2004) (Ex. A). That waiver states:
I request any member of the media with whom I may have
communicated regarding the subject matters under investigation1
to fully disclose all such communications to federal law
enforcement authorities. In particular, I request that no member of
the media assert any privilege or refuse to answer any questions
from federal law enforcement authorities on my behalf or for my
benefit in connection with the subject matters under investigation.
Id. Mr. Libby testified before the grand jury on March 5 and 24, 2004. Again, he testified fully
about his conversations with reporters in June and July 2003.
Mr. Libby expected that all of the reporters to whom he had spoken would also cooperate
with the government. Through his attorney, Joseph Tate, he confirmed the voluntariness of his
confidentiality waiver every time he was asked to do so by counsel for reporters and requested
that reporters disclose their communications with him to the government. Mr. Libby expected
that he would be exonerated by the reporters' testimony, largely because--contrary to press
speculation at the time--he was not a source for Robert Novak's column mentioning Ms.
Wilson's CIA employment, because he had never engaged in any effort, concerted or otherwise,
1
These subject matters were defined as "the possible disclosure to unauthorized persons of
classified information in connection with Ambassador Joseph Wilson, his trip to Niger in
February 2002, and matters relating thereto."
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to disclose Ms. Wilson's identity, and because he had no reason to believe that the conversations
he had with reporters regarding Ms. Wilson were unlawful or wrongful in any respect.
B. Certain Reporters Challenged Grand Jury Subpoenas Issued To
Them Notwithstanding Mr. Libby's Voluntary And Unqualified
Confidentiality Waiver And His Request That They Testify.
At various times during 2004, the grand jury issued subpoenas to reporters who had
spoken to Mr. Libby. These reporters reacted to the subpoenas in different ways. Certain of
them (such as Robert Novak, Glenn Kessler and Walter Pincus) testified without mounting legal
challenges to the subpoenas they had received. Mr. Kessler and Mr. Pincus made clear that they
were testifying because Mr. Libby had asked them to speak to the Special Counsel. For
example, Mr. Kessler made the following public statement: "Mr. Libby signed a waiver in
which he asked me to discuss with the Special Counsel whether the Wilson matter was raised in
two conversations I had with him in 2003. Under these circumstances, at the request of my
source, I am giving a deposition regarding these questions." Statement of Glenn Kessler (June
22, 2004) (Ex. B).
Mr. Russert, Mr. Cooper, and Ms. Miller moved to quash the subpoenas issued to them,
invoking a so-called "reporters' privilege" purportedly arising under the First Amendment and
common law. The resulting litigation, contempt proceedings, and negotiations involving the
Special Counsel and these reporters were protracted and complex.
The District Court rejected motions to quash by Mr. Russert and Mr. Cooper on July 20,
2004. Mr. Russert chose not to appeal and was interviewed by the Special Counsel on August 7,
2004 about what he had said and not said to Mr. Libby. A statement issued two days later by
NBC, Mr. Russert's employer, announced Mr. Russert's decision to testify, explaining that "Mr.
Libby had previously told the FBI about the conversation and had formally requested that the
conversation be disclosed." NBC News Statement (Aug. 9, 2004) (Ex. C).
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Mr. Cooper resisted the District Court's order to testify. In his words, he "fought the
order to protect the principle of source confidentiality." Matthew Cooper, What Scooter Libby
And I Talked About, TIME, Oct. 30, 2005 at 1 (Ex. D). Upon the Special Counsel's subsequent
contempt motion, Mr. Cooper was found in civil contempt on August 9, 2004. Mr. Cooper
agreed to a deposition concerning his discussions with Mr. Libby after his attorney, Floyd
Abrams, was reassured by Mr. Tate that Mr. Libby's confidentiality waiver was indeed
voluntary. ^2 Id. at 2. Mr. Cooper has made clear that he testified because he received personal
assurances from Mr. Libby that his waiver was voluntary. Id.
In 2004, Ms. Miller, like Mr. Cooper, was represented by Mr. Abrams. After Ms. Miller
received grand jury subpoenas in August 2004, Mr. Tate confirmed to Mr. Abrams that Mr.
Libby had voluntarily agreed to waive confidentiality with respect to his conversations with Ms.
Miller. See Letter from Joseph A. Tate to Patrack J. Fitzgerald at 1 (Sept. 16, 2005) (Ex. E). Mr.
Abrams said he understood this, but that Ms. Miller was committed to challenging the subpoenas
on principle and to protect sources other than Mr. Libby. Id. Throughout the legal struggle that
followed, Ms. Miller maintained in her public statements and court filings that she was refusing
to testify to vindicate "the highest traditions of the press." See, e.g., Mot. of Judith Miller for
Recons. of Oct. 7, 2004 Contempt Order at 1 (July 1, 2005).
Ms. Miller's motion to quash was denied by the District Court on September 9, 2004.
The Special Counsel's subsequent contempt motion led to an order from the District Court
holding Ms. Miller in civil contempt on October 7, 2004. The D.C. Circuit affirmed the
2
Mr. Cooper was held in contempt by the District Court again on October 13, 2004, based on
his refusal to comply with a second subpoena seeking information solely relating to his
communications with Karl Rove. After further proceedings, which were entirely unrelated to
Mr. Cooper's testimony regarding Mr. Libby, Mr. Cooper eventually testified before the
grand jury again on July 13, 2005.
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contempt order on February 15, 2005. After the Supreme Court denied certiorari on June 27,
2005, and Ms. Miller continued to defy the order to testify, the District Court ordered her to jail
on July 6, 2005.
In August 2005, attorney Robert Bennett, who had taken over representation of Ms.
Miller, began contacting Mr. Tate to discuss Ms. Miller's desire to get out of jail. Mr. Tate was
surprised to hear from Mr. Bennett. Based on Mr. Abrams' previous statements, and because
Mr. Libby had provided a full and voluntary waiver, Mr. Tate and Mr. Libby had both assumed
that Ms. Miller's incarceration had to do with her principles and her desire to protect other
sources, and had nothing to do with Mr. Libby. Mr. Tate assured Mr. Bennett that he had told
Mr. Abrams previously that Mr. Libby's waiver was indeed voluntary.
On September 12, 2005, the Special Counsel sent a letter to Mr. Tate expressing concern
that Ms. Miller was in jail because of a possible "misunderstanding" about the waiver and stating
that communications between Mr. Libby and Ms. Miller about the waiver would not "be viewed
as obstructive conduct." Letter from Patrick J. Fitzgerald to Joseph A. Tate at 3-4 (Sept. 12,
2005) (Ex. F). "In fact," the Special Counsel stated, "I would welcome such a communication
reaffirming Mr. Libby's waiver as it might assist the investigation and lead to Ms. Miller's
release." Id. at 3. Mr. Tate learned from Mr. Bennett (for the first time) that Ms. Miller wanted
personal communications from Mr. Libby repeating that his waiver had not been coerced--
specifically, a phone call and a letter. In response to these requests from the Special Counsel and
Ms. Miller's attorney, Mr. Libby, through his counsel, sent Ms. Miller a letter dated September
15, 2005. In that letter, he reaffirmed that she should rely on his waiver and urged her to leave
jail and testify. Mr. Libby conveyed the same message to Ms. Miller by telephone on September
19, 2005.
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After Ms. Miller agreed to testify, she was released from jail on September 29, 2005. She
has stated publicly that her decision to testify was based on Mr. Libby's personal encouragement
and the Special Counsel's agreement to limit the scope of his questioning so that she could
protect sources other than Mr. Libby. See Judith Miller, A Personal Account; My Four Hours
Testifying in the Federal Grand Jury Room, N.Y. TIMES, Oct. 16, 2005, at 2 (Ex. G). Ms. Miller
testified before the grand jury twice, on September 30 and October 12, 2005.
In sum, Mr. Libby repeatedly communicated to reporters that his waiver was voluntary
and exhorted them to testify before the grand jury. He will likely present such evidence at trial.
Mr. Libby bears no responsibility for the decisions some reporters made to invoke the reporters'
privilege and refuse to testify. No evidence adduced by the government suggests that Mr. Libby
attempted to impede the grand jury from obtaining testimony from reporters, and Mr. Libby
certainly has not been charged with such an offense. In addition, in a letter dated January 23,
2006, the government informed the defense that it did not intend to offer any evidence of "other
crimes" pursuant to Rule 404(b), and the government has never indicated to the defense that this
position has changed.
ARGUMENT
I. THE EVIDENCE AT ISSUE SHOULD BE EXCLUDED BECAUSE
IT IS NOT RELEVANT.
Evidence and arguments about reporters' motions to quash, related contempt
proceedings, and Ms. Miller's incarceration are irrelevant and therefore inadmissible. See Fed.
R. Evid. 402. These are collateral matters that bear absolutely no relationship to the perjury,
obstruction, and false statements charges against Mr. Libby.
"[T]he only question the jury will be asked to resolve in this matter will be whether the
defendant intentionally lied when he testified before the grand jury and spoke with FBI
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agents . . . ." Order at 2 (June 2, 2006) (Dkt. 112). The Court's rulings in this case have made
clear that this trial will focus primarily on Mr. Libby's state of mind. See, e.g., id. at 6. The
decisions made by certain reporters and their attorneys to challenge grand jury subpoenas and
contempt orders are not probative of Mr. Libby's state of mind. And although reporters who
fought the grand jury's subpoenas will be important witnesses at trial, the proper focus of their
testimony will be their conversations with Mr. Libby in June and July 2003, not their First
Amendment litigation in 2004 and 2005.
The defense is particularly concerned that the government will attempt to use the
evidence we seek to exclude as part of an improper attempt to bolster its motive arguments. The
government's motive theory is that Mr. Libby decided to tell a false story in his October 14,
2003 FBI interview: specifically, that he learned that Mr. Wilson's wife worked for the CIA
from the Vice President, forgot this information, and later thought he learned it for the first time
from a reporter. See Government's Resp. to Def.'s Third Mot. to Compel Disc. at 28 (Apr. 5,
2006) (Dkt. 80). According to the government, after this interview, the "die was cast" and Mr.
Libby was subsequently locked in to this untrue version of events. Id. Based on this unfounded
conjecture, the government has argued--and will likely argue at trial--that Mr. Libby thought he
could lie about his conversations with reporters with impunity because he assumed they would
not cooperate with the investigation. ^3 Sept. 28, 2006 Hr'g Tr. at 16-18. The reporters' legal
3
This argument rings hollow for a number of reasons. For example, regardless of whether
Mr. Cooper chose to disclose the details of his conversation with Mr. Libby to the
government, Mr. Libby could not have assumed that he could falsely represent the details of
that conversation with abandon. This is because two other witnesses were present for that
call: Cathie Martin, Assistant to the Vice President for Public Affairs, and Jenny Mayfield,
Mr. Libby's personal assistant. Obviously, Mr. Libby could not have expected that either
Ms. Martin or Ms. Mayfield would refuse to cooperate with the investigation or testify
falsely.
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battles, however, occurred months, if not years, after Mr. Libby supposedly concocted his cover
story and repeated it to the FBI and the grand jury. These later developments could not possibly
have influenced Mr. Libby's state of mind or motives during the relevant time period. For this
reason alone, evidence of such topics should be excluded.
II. THE EVIDENCE AT ISSUE SHOULD BE EXCLUDED BECAUSE
IT WILL DISTRACT AND MISLEAD THE JURY.
Even if the evidence at issue did have any relevance, it is slight at best, and it should be
excluded under Rule 403 because of the likelihood that it will confuse the jury and protract the
proceedings with litigation of what is indisputably a collateral matter.
If the subjects we request the Court to exclude are raised by the government at trial,
jurors will undoubtedly speculate about why certain reporters resisted testifying notwithstanding
Mr. Libby's urging--an issue wholly unrelated to Mr. Libby's guilt or innocence. They may
assume, incorrectly, that certain reporters were trying to protect Mr. Libby by fighting the
subpoenas from the grand jury. In fact, as shown above, each reporter who refused to testify
appears to have been influenced by a different mix of personal and professional motivations,
none of which had anything to do with Mr. Libby. To counter any suggestion otherwise, the
defense would need, and be entitled, to show the jury that reporters resisted complying with the
subpoenas for a variety of different reasons, such as defending what they perceived to be First
Amendment values; upholding the integrity and tradition of their profession; enhancing their
reputations among their peers; courting favorable media coverage; and protecting other sources.
The defense would demonstrate such points at trial by presenting evidence about
reporters' legal and public relations strategies; about communications between and among Mr.
Libby's counsel, the Special Counsel, and attorneys for the reporters; and about reporters'
understandings of the nature of Mr. Libby's confidentiality waiver. The presentation of such
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evidence could significantly delay the trial. For example, the defense would need to call
attorneys including Mr. Abrams and Mr. Bennett to testify, which could lead to motions to quash
and/or litigation regarding the scope of the attorney-client privilege. The defense may also need
additional discovery regarding certain reporters' efforts to avoid testifying.
Further, the defense would be entitled to show that Mr. Libby had no reason to believe
that the reporters would be successful in resisting grand jury subpoenas based on claims of
reporters' privilege, even if (for reasons unrelated to him) they attempted to do so. Explaining
this complicated matter of constitutional law could require hours of testimony and argument
about a confusing legal issue that is ultimately irrelevant to Mr. Libby's guilt or innocence.
In sum, allowing the evidence Mr. Libby seeks to exclude would produce exactly the
kind of lengthy "trial within a trial" that this Court should prevent. See, e.g., United States v.
Fonseca, 435 F.3d 369, 376 (D.C. Cir. 2006) (Rule 403 intended to prevent delay and "mini-
trial[s]" on collateral issues); United States v. Hill, 322 F.3d 301, 309-10 (4th Cir. 2003)
(Traxler, J. concurring) (noting that district court could have excluded evidence because it may
have resulted in a "trial within a trial" and confused the issues to be decided by the jury). Even if
jurors arrive at a complete understanding of why each reporter resisted testifying, they will be no
closer to determining whether the government has proved the charges set forth in the indictment
beyond a reasonable doubt.
Finally, the facts relating to the contempt proceedings against Judith Miller and her 85-
day stint in jail are particularly convoluted and have a heightened potential to confuse the jury.
The introduction of these issues would undoubtedly cause jurors to wonder whether Ms. Miller
went to jail in an effort to shield Mr. Libby from liability, and whether Mr. Libby is to blame for
her incarceration. Such speculation would be particularly prejudicial to Mr. Libby. In response,
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the defense would seek to present the full story of why Ms. Miller decided to go to jail and why
she chose to leave. The Special Counsel is a significant player in this story. He was involved in
discussions with counsel for Ms. Miller and counsel for Mr. Libby about the voluntariness of Mr.
Libby's waiver, and he made efforts to help broker an arrangement that would permit Ms. Miller
to testify (including but not limited to his September 12, 2005 letter). If the government seeks to
introduce evidence about Ms. Miller's imprisonment and about communications between Ms.
Miller and Mr. Libby concerning his confidentiality waiver, the defense may need to call the
Special Counsel as a witness at trial. It is manifest that such an unnecessary complication should
be avoided.
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Case 1:05-cr-00394-RBW Document 167 Filed 10/30/2006 Page 12 of 12
CONCLUSION
For the foregoing reasons, I. Lewis Libby respectfully requests that the Court issue the
attached order.
Dated: October 30, 2006 Respectfully submitted,
/s/ James L. Brochin_____ /s/ William H. Jeffress, Jr.
Theodore V. Wells, Jr. William H. Jeffress, Jr.
(DC Bar No. 468934) (DC Bar No. 041152)
James L. Brochin Alex J. Bourelly
(DC Bar No. 455456) (DC Bar No. 441422)
Paul, Weiss, Rifkind, Wharton Baker Botts LLP
& Garrison LLP 1299 Pennsylvania Avenue, NW
1285 Avenue of the Americas Washington, DC 20004
New York, NY 10019-6064 Tel: (202) 639-7751
Tel: (212) 373-3089 Fax: (202) 585-1087
Fax: (212) 373-2217
/s/ John D. Cline
John D. Cline
(D.C. Bar No. 403824)
Jones Day
555 California Street, 26th Floor
San Francisco, CA 94104
Tel: (415) 626-3939
Fax: (415) 875-5700
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Fitzgerald Motion to Preculed Charging Decision Evidence [Doc 164]
Case 1:05-cr-00394-RBW Document 164 Filed 10/30/2006 Page 1 of 13
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA )
) CR. NO. 05-394 (RBW)
v. )
)
I. LEWIS LIBBY, )
also known as "Scooter Libby" )
GOVERNMENT'S MOTION IN LIMINE TO PRECLUDE
EVIDENCE, COMMENT, AND ARGUMENT REGARDING
THE GOVERNMENT'S CHARGING DECISIONS
The UNITED STATES OF AMERICA, by PATRICK J. FITZGERALD, SPECIAL
COUNSEL, respectfully submits the following motion in limine to preclude evidence,
comment, and argument regarding the government's charging decisions in the investigation
that gave rise to the indictment in the above-captioned matter.
INTRODUCTION
Defendant I. Lewis "Scooter" Libby is charged in the pending indictment with
obstruction of justice, perjury, and making false statements to federal investigators, in
violation of 18 U.S.C. §§ 1503, 1623 and 1001, in connection with an investigation
concerning the disclosure to reporters of then-classified information regarding the
employment of Valerie Plame Wilson. It is axiomatic that the purpose of a criminal trial is
to determine whether the government has met its burden of proof as to the charged crimes,
not to examine why the government decided to seek the indictment against the defendant,
why additional charges were not lodged against the defendant, or why other persons were or
1
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were not charged as a result of the investigation that gave rise to the pending indictment.
This motion in limine requests that the Court preclude evidence, comment, and argument
regarding the government's charging decisions and thereby confine the trial to its proper
purpose and prevent irrelevant, unfairly prejudicial, and potentially confusing matters from
influencing the jury's decision as to the charged crimes.
The evidence, comment, and argument this motion seeks to preclude are not relevant
in the trial of the charged crimes; they have zero probative value in the case. The
investigation that led to the indictment of defendant did not result in a charge against Libby
or any other person for the act of disclosing classified information, nor was any person other
than Libby charged with obstruction of justice, perjury, or making material false statements.
The fact that neither Libby nor anyone else has been charged with a crime for the disclosure
of classified information is irrelevant to whether Libby committed the crimes charged in the
indictment. Likewise, the fact that no one but Libby has been charged with obstruction of
justice, perjury, or making material false statements is irrelevant as to whether Libby
committed the charged crimes. Evidence, comment, and argument about the government's
charging decisions have no tendency to make any matter of consequence to the determination
of the action more or less probable.
Besides lacking any relevance, the evidence, comment, and argument sought to be
precluded carry enormous danger of unfair prejudice and confusion of the issues in that they
have an undue tendency to suggest decision on improper bases. For a jury to decide the case
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on any basis other than the facts and the law is a species of jury nullification. The courts have
roundly rejected jury nullification arguments and jury nullification instructions. The courts
also have rejected the notion that otherwise irrelevant evidence may be admissible because
it supports a jury nullification argument or verdict. In this case, evidence, comment, and
argument concerning the government's charging decisions would risk unfair prejudice and
confusion of the issues. By way of example: (1) the jury might improperly second guess the
government's charging decision as to Libby based on its perception of the relative merits of
potential charges against other individuals that were not lodged; and (2) the jury might
impute to the government certain beliefs based on the decision not to charge certain crimes
and improperly draw inferences regarding the government's view of the conduct, such as the
conclusion that the government believes the defendant's behavior in disclosing information
was proper. The danger of unfair prejudice and confusion of the issues resulting from
improper inferences is manifest. To allow such potentially prejudicial and confusing matters
before the jury would have an undue tendency to suggest jury nullification.
Given the complete lack of relevance of the evidence, comment, and argument
regarding the government's charging decisions, and the substantial risks of unfair prejudice,
this is not a matter that can be addressed solely through limiting instructions to the jury.
Evidence that is not relevant is not admissible. Where the probative value of evidence is
substantially outweighed by the danger of unfair prejudice, that evidence should be excluded.
The Court should preclude evidence, comment, and argument regarding the government's
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charging decisions.
ARGUMENT
I. The District Court Should Preclude Evidence, Comment, and Argument
Regarding the Government's Charging Decisions on Relevance Grounds.
Evidence, comment, and arguments regarding the government's charging decisions
including the fact that no other person under investigation has been charged with a crime
are irrelevant to the issues to be decided by the jury at trial. Such evidence, comment, and
argument should be precluded on that basis.
The basic principles of relevance are well known to the Court. Relevant evidence is
"evidence having any tendency to make the existence of any fact that is of consequence to
the determination of the action more probable or less probable than it would be without the
evidence." Fed. R. Evid. 401. Relevancy "exists only as a relation between an item of
evidence and a matter properly provable in the case." Advisory Committee Notes, Rule 401.
The determination of relevancy involves an inquiry into whether evidence "possesses
sufficient probative value to justify receiving it in evidence." Id. "Evidence which is not
relevant is not admissible." Fed. R. Evid. 402.
The decision by a prosecutor not to bring additional criminal charges against a
defendant or not to charge additional persons is irrelevant at the trial of charges lodged
against the defendant. The decision not to file other charges or charge other defendants has
no tendency to make the existence of any fact that is of consequence to the action more
probable or less probable. For example, in United States v. Young, 20 F.3d 758 (7th Cir.
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1994), defendant Young appealed the district court's exclusion of evidence that another
person (Russell) arrested for drug crimes along with defendant was released and not charged.
Id. at 765. The district court ruled that the evidence that Russell had been released and not
charged was irrelevant. Id. The Court of Appeals affirmed:
"Young's defense at trial was that he did not knowingly participate in the
attempted cocaine purchase. Accordingly, the primary issue for the jury was
whether the government met its burden of proof as to Young's knowledge.
Whether or not Russell was criminally charged does not make the facts relating
to Young's knowledge and participation in the attempted purchase more or less
probable."
Id. (citing Fed. R. Evid. 401). See also United States v. Mosky, 1990 WL 70832 (N.D.
Ill.)("The government seeks to bar only any reference to its decisions regarding who to indict
and for what acts. The government is correct that those decisions are not relevant to the
charges faced by these defendants.") Therefore, evidence concerning the government's
charging decisions is irrelevant and has no probative value.
Application of the test of relevancy to defendant Libby's case is straightforward. In
this case, the defendant is charged with obstruction of justice, perjury, and making material
false statements. It is expected that the issue at trial will be whether the government can
prove that the defendant had the requisite mens rea required for conviction or whether the
defendant's statements in his grand jury testimony and FBI interviews were the result of
inaccurate memory. Neither the fact that Libby has not been charged with any crime relating
to the disclosure of classified information, nor the government's reasons for not seeking such
charges, has any tendency to make any fact of consequence more or less likely in the trial of
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the obstruction of justice, perjury, and material false statement charges. Obviously, the jury
will know that defendant Libby is not charged with any other crime in the pending
indictment. But neither the fact that no crime relating to the disclosure has been charged, nor
the reasons underlying that decision, has any bearing on whether the defendant is guilty of
the crimes charged in the indictment.
As for evidence, comment, and argument regarding whether other persons have been
charged with crimes as a result of the investigation, those too lack relevance to the issues on
trial. ^1 The fact that no other person was charged with a crime relating to the disclosure of
classified information says absolutely nothing about whether defendant Libby is guilty of the
charged crimes. Similarly, the fact that no other person has been charged with obstruction
of justice, perjury, or making false statements has no relevance to the issues in the trial.
The court should preclude evidence, comment, and argument concerning the
government's charging decisions on the ground that such matters are irrelevant to the issues
at the upcoming trial.
II. The District Court Should Preclude Evidence, Comment, and Argument
Regarding the Government's Charging Decisions Because of the Significant Risk
of Unfair Prejudice and Confusion of the Issues.
Evidence, comment, and argument regarding the government's charging decisions is
irrelevant and should be excluded on that basis alone. However, there is another basis to
1
Of course, the government acknowledges that information relating to its discussions with
prospective witnesses, for example, an agreement to provide immunity, is relevant on the issue of
the witnesses' motivation.
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grant the government's motion in limine: the evidence, comment, and argument at issue will
create a substantial risk of unfair prejudice and confusion of the issues. Those are risks that
warrant the exclusion of even relevant evidence when the risk substantially outweighs the
probative value of the evidence. In this case, the risks are significant and the probative value
is nil. The risks of unfair prejudice and confusion of the issues provide a compelling basis
for granting the government's motion.
Under the Federal Rules of Evidence, even relevant evidence may be excluded if its
probative value is "substantially outweighed by the danger of unfair prejudice [or] confusion
of the issues." Fed. R. Evid. 403. "Unfair prejudice" is defined as "an undue tendency to
suggest decision on an improper basis." Advisory Committee Notes, Rule 403. The jury's
duty in any criminal case is to be the finder of fact with respect to whether the prosecution
has proven the elements of the charged offenses. Jurors are sworn to follow the instructions
of the court and are routinely told that they are obligated to follow the law as told to them by
the court. Instruction 2.01, Criminal Jury Instructions for the District of Columbia (4 th ed.
rev. 2005) ("It is your duty to accept the law as I state it to you."); Federal Jury Practice and
Instructions, Fifth Edition, Vol. 1A § 10.01 ("I instruct you that the law as given to you by
the Court in these and other instructions constitutes the only law for your guidance. It is your
duty to accept and to follow the law as I give it to you even though you may disagree with
the law."). See also United States v. Bruce, 109 F.3d 323, 327 (7th Cir. 1997).
7
Case 1:05-cr-00394-RBW Document 164 Filed 10/30/2006 Page 8 of 13
It is improper for the jury to consider, or for counsel to suggest, that the decisions by
the government not to charge additional crimes or defendants are grounds that could support
an acquittal on the crimes charged in the indictment. An acquittal based upon the jury's view
of the government's charging decisions would be a form of jury nullification. It follows that
since jury nullification arguments are improper, evidence that is otherwise irrelevant to the
charges in the pending indictment does not become admissible to support a nullification
argument. The D.C. Circuit adheres to the almost universal rule disapproving arguments that
ask the jury to decide a criminal case on extraneous matters, that is, to engage in jury
nullification. In United States v. Washington, 705 F.2d 489 (D.C. Cir. 1983), the court, in
holding that a defendant has no right to a jury instruction informing the jury of its power to
engage in nullification, stated:
A jury has no more "right" to find a "guilty" defendant "not guilty" than it has
to find a "not guilty" defendant "guilty," and the fact that the former cannot be
corrected by a court, while the latter can be, does not create a right out of the
power to misapply the law. Such verdicts are lawless, a denial of due process
and constitute an exercise of erroneously seized power.
Id. at 494. Indeed, since the Supreme Court's decision in Sparf and Hansen v. United States,
156 U.S. 51 (1895), "federal courts have uniformly recognized the right and the duty of the
judge to instruct the jury on the law and the jury's obligation to apply the law to the facts, and
that nullification instructions should not be allowed." United States v. Drefke, 707 F.2d 978,
982 (8th Cir. 1983). See also, United States v. Carr, 424 F.3d 213, 220 (2d Cir. 2005)("We
categorically reject the idea that, in a society committed to the rule of law, jury nullification
8
Case 1:05-cr-00394-RBW Document 164 Filed 10/30/2006 Page 9 of 13
is desirable or that courts may permit it to occur when it is within their authority to
prevent."); United States v. Bruce, 109 F.3d 323, 327 (7th Cir. 1997)(jury nullification is not
to be sanctioned by instructions, but is to be viewed as an aberration under our system);
United States v. Desmarais, 938 F.2d 347, 350 (1st Cir. 1991)(it is "improper to urge the jury
to nullify applicable law."); United States v. Trujillo, 714 F.2d 102, 105-06 (11th Cir.
1983)("We therefore join with those courts which hold that defense counsel may not argue
jury nullification during closing argument."); United States v. Childress, 746 F. Supp 1122,
1140 (D.D.C. 1990)(a defendant has no right to have the court inform the jury of its inherent
power to acquit nor may counsel argue jury nullification in closing argument).
A corollary to the rejection by the D.C. Circuit and other courts of jury nullification
arguments and instructions that encourage nullification is the strident refusal by courts to
admit otherwise irrelevant evidence to support a jury nullification argument or verdict. In
United States v. Gorham, 523 F.2d 1088 (D.C. Cir. 1975), the D.C. Circuit did exactly that.
In Gorham, defendants were charged with an attempted prison escape during which hostages
were taken. While the hostages were being held, two persons without legal authority
promised the defendants immunity for their actions if they gave up and released the hostages.
At trial, the defendants lost their argument that the promises were binding, but sought to
admit the promises so that the jury might consider them in rendering a verdict. The trial
judge found that the promises of immunity "were irrelevant to the issue of appellants' guilt
or innocence of the offenses charged, and thus declined to admit them into evidence." Id.
9
Case 1:05-cr-00394-RBW Document 164 Filed 10/30/2006 Page 10 of 13
at 1097-98. The D.C. Circuit affirmed: "We approve [the district judges's] determination
and agree that introduction of [the promise] would have been unnecessarily confusing and
potentially prejudicial." See also United States v. Funches, 135 F.3d 1405, 1409 (11th Cir.
1998)("Because the jury enjoys no right to nullify criminal laws, and the defendant enjoys
a right to neither a nullification instruction nor a nullification argument to a jury, the potential
for nullification is no basis for admitting otherwise irrelevant evidence . . . . No reversible
error is committed when evidence, otherwise inadmissible under Rule 402 of the Federal
Rules of Evidence, is excluded, even if the evidence might have encouraged the jury to
disregard the law and to acquit the defendant "); Zal v. Steppe, 969 F.2d 924-31 (9th Cir.
1992) (Trott, J., concurring)(no right to present evidence that is irrelevant to a legal defense);
United States v. Crosby, 713 F.2d 1066, 1074 (5th Cir. 1983)(following Gorham and
affirming exclusion of evidence finding "similar irrelevance and potential for prejudice");
United States v. Lucero, 895 F. Supp 1421, 1426 (D. Kan. 1995)("defendants are not entitled
to present evidence which is irrelevant for any purpose other than to provoke finder of fact
to disregard the law").
Application of these principles to the facts of the pending case leads inexorably to the
conclusion that the Court should preclude evidence, comment, and argument concerning the
government's charging decisions. While there are many improper inferences that a jury
might draw from consideration of the irrelevant information about charging decisions,
several examples illustrate the potential for unfair prejudice and confusion of the issues.
10
Case 1:05-cr-00394-RBW Document 164 Filed 10/30/2006 Page 11 of 13
First, the jury might improperly second guess the government's charging decision as to Libby
based on its perception of the relative merits of potential charges against other individuals
that were not lodged. Whether other persons were investigated for disclosing classified
information were not charged either with a crime relating to the disclosure or with
obstruction of justice, perjury, or making false statements has no relevance to the charges
against Libby, but might cause the jury to improperly render a verdict on its evaluation of the
government's charging decisions rather than the facts and the law. The jury must evaluate
the case against defendant on its own merits, and may not evaluate the case on a relative
basis. If Mr. X was investigated for leaking classified information, the government's
decision not to charge Mr. X should have nothing to do with the jury's role as the finder of
fact in Libby's case. If Mr. Y submitted to interviews and testified before the grand jury, but
was not charged with obstruction of justice, perjury, or making false statements, the
government's decision not to charge Mr. Y should have nothing to do with the jury's
deliberation. Evidence, comment, and argument focusing the jury on the relative merits of
the government's charging decisions in different cases injects unfair prejudice and potential
confusion and induces the jury to nullify the law rather than uphold it.
Second, the jury might impute to the government certain beliefs and opinions based
on the decision not to charge certain crimes, and improperly draw inferences regarding the
government's view of the conduct, such as the conclusion that the government believes that
the defendant's disclosure of the classified information at issue was proper. The
11
Case 1:05-cr-00394-RBW Document 164 Filed 10/30/2006 Page 12 of 13
government's decision not to charge a crime is not a declaration as to the legality or propriety
of the defendant's conduct. Indeed, perjury and obstructive conduct very often frustrates the
government's strong interest in discovering whether the underlying crime was in fact illegal,
and thus to suggest that a decision not to charge the underlying disclosure of classified
information is a clean bill of health in fact contradicts the very purpose of bringing perjury,
false statements, and obstruction charges. In any event, the beliefs of government officers
supporting charging decisions are not properly considered by a jury. Evidence, comment,
and argument based on the government's charging decisions that the government held certain
beliefs or reached certain conclusions about the conduct of the defendant or anyone else is
irrelevant and will cause unfair prejudice and confusion of the issues.
The Court should grant the government's motion in limine and preclude the evidence,
comment, and argument that is the subject of the motion. The government may seek one or
more jury instructions to encourage the jury to remain focused on the facts and the applicable
law, ^2 but the government respectfully suggests that granting the motion and precluding
evidence, comment, and argument regarding the government's charging decisions is vital to
preventing unfair prejudice and confusion of the issues.
2
For example, the government may seek an instruction telling the jury not to speculate why
any other person whose name the jurors may have heard during the trial is not on trial.
12
Case 1:05-cr-00394-RBW Document 164 Filed 10/30/2006 Page 13 of 13
CONCLUSION
For all of the foregoing reasons, the United States respectfully requests that this Court
grant the government motion in limine to preclude comment and argument regarding the
government's charging decisions.
Respectfully submitted,
/s/
PATRICK J. FITZGERALD
Special Counsel
JAMES P. FLEISSNER
DEBRA RIGGS BONAMICI
KATHLEEN M. KEDIAN
Deputy Special Counsels
Office of the United States Attorney
Northern District of Illinois
219 South Dearborn Street
Chicago, Illinois 60604
(312) 353-5300
Dated: October 30, 2006
13
Wednesday, October 25, 2006
Lewis et al v. Harris - NJ Homosexual Marriage
Source:
http://www.judiciary.state.nj.us/opinions/supreme/a-68-05.pdf
SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
Mark Lewis and Dennis Winslow, et al. v. Gwendolyn L. Harris, etc., et al. (A-68-05)
Argued February 15, 2006 -- Decided October 25, 2006
ALBIN, J., writing for a majority of the Court.
Plaintiffs are seven same-sex couples who have been in permanent committed relationships for more than ten years. Each seeks to marry his or her partner and to enjoy the legal, financial, and social benefits that marriage affords. After being denied marriage licenses in their respective municipalities, plaintiffs sued challenging the constitutionality of the State's marriage statutes.
In a complaint filed in the Superior Court, Law Division, plaintiffs sought a declaration that laws denying same-sex marriage violated the liberty and equal protection guarantees of Article I, Paragraph 1 of the New Jersey Constitution. They also sought injunctive relief compelling the defendant State officials to grant them marriage licenses. (The named defendants are Gwendolyn L. Harris, former Commissioner of the Department of Human Services, Clifton R. Lacy, former Commissioner of the Department of Health and Senior Services, and Joseph Komosinski, former Acting State Registrar of Vital Statistics. For the purpose of this decision, they are being referred to collectively as the "State.")
Both parties moved for summary judgment. The trial court, Superior Court Judge Linda Feinberg, entered summary judgment in the State's favor and dismissed the complaint. Plaintiffs appealed. In a split decision, the Appellate Division affirmed. Judge Stephen Skillman wrote the majority opinion in which he concluded that New Jersey's marriage statutes do not contravene the substantive due process and equal protection guarantees of Article I, Paragraph 1 of the State Constitution. He determined that only the Legislature could authorize same-sex marriages.
Appellate Division Judge Anthony Parrillo filed a concurring opinion. Although joining Judge Skillman's opinion, Judge Parrillo added his view of the twofold nature of the relief sought by plaintiffs -- the right to marry and the rights of marriage. He submitted that it was the Legislature's role to weigh the benefits and costs flowing from a profound change in the meaning of marriage.
Appellate Division Judge Donald Collester, Jr., dissented. He concluded that the substantive due process and equal protection guarantees of Article I, Paragraph 1 obligate the State to afford same-sex couples the right to marry on terms equal to those afforded opposite-sex couples.
The matter came before the Court as an appeal as of right by virtue of the dissent in the Appellate Division.
HELD: Denying committed same-sex couples the financial and social benefits and privileges given to their married heterosexual counterparts bears no substantial relationship to a legitimate governmental purpose. The Court holds that under the equal protection guarantee of Article I, Paragraph 1 of the New Jersey Constitution, committed same- sex couples must be afforded on equal terms the same rights and benefits enjoyed by opposite-sex couples under the civil marriage statutes. The name to be given to the statutory scheme that provides full rights and benefits to same- sex couples, whether marriage or some other term, is a matter left to the democratic process.
1. As this case presents no factual dispute, the Court addresses solely questions of law. The Court perceives plaintiffs' equal protection claim to have two components: whether committed same-sex couples have a constitutional right to the benefits and privileges afforded to married heterosexual couples, and, if so, whether they have a constitutional right to have their relationship recognized by the name of marriage. (pp. 19-21)
2. In attempting to discern the substantive rights that are "fundamental" under Article I, Paragraph 1, of the State Constitution, the Court has followed the general standard adopted by the United States Supreme Court in construing the Due Process Clause of the Fourteenth Amendment. First, the asserted fundamental liberty interest must be clearly identified. In this case, the identified right is the right of same-sex couples to marry. Second, the liberty interest in same-sex marriage must be objectively and deeply rooted in the traditions, history, and conscience of the people of this State. (pp. 21-25)
3. New Jersey's marriage laws, which were first enacted in 1912, limit marriage to heterosexual couples. The recently enacted Domestic Partnership Act explicitly acknowledges that same-sex couples cannot marry. Although today there is a national debate over whether same-sex marriages should be authorized by the states, the framers of the 1947 New Jersey Constitution could not have imagined that the liberty right protected by Article I, Paragraph 1 embraced same-sex marriage. (pp. 25-28)
4. Times and attitudes have changed. There has been a developing understanding that discrimination against gays and lesbians is no longer acceptable in this State. On the federal level, the United States Supreme Court has struck down laws that have unconstitutionally targeted gays and lesbians for disparate treatment. Although plaintiffs rely on the federal cases to support the argument that they have a fundamental right to marry under our State Constitution, those cases fall far short of establishing a fundamental right to same-sex marriage "deeply rooted in the traditions, history, and conscience of the people of this State." Despite the rich diversity of this State, the tolerance and goodness of its people, and the many recent advances made by gays and lesbians toward achieving social acceptance and equality under the law, the Court cannot find that the right to same-sex marriage is a fundamental right under our constitution. (pp. 28-33)
5. The Court has construed the expansive language of Article I, Paragraph 1 to embrace the fundamental guarantee of equal protection, thereby requiring the Court to determine whether the State's marriage laws permissibly distinguish between same-sex and heterosexual couples. The test the Court has applied to equal protection claims is a flexible one that includes three factors: the nature of the right at stake, the extent to which the challenged statutory scheme restricts that right, and the public need for the statutory restriction. (pp. 34-36)
6. In conducting its equal protection analysis, the Court discerns two distinct issues. The first is whether same-sex couples have the right to the statutory benefits and privileges conferred on heterosexual married couples. Assuming that right, the next issue is whether committed same-sex partners have a constitutional right to define their relationship by the name of marriage. (p. 37)
7. New Jersey's courts and its Legislature have 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 (LAD), New Jersey became the fifth state 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. (pp. 37-40)
8. Discrimination on the basis of sexual orientation is also outlawed in our criminal law and public contracts law. The Legislature, moreover, created 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. In 2004, the Legislature passed the Domestic Partnership Act, which confers certain benefits and rights on same-sex partners who enter into a partnership under the Act. (pp. 40-42)
9. The Domestic Partnership Act has failed to bridge the inequality gap between committed same-sex couples and married opposite-sex couples. Significantly, the economic and financial inequities that are borne by same-sex domestic partners are also borne by their children. Further, even though same-sex couples are provided fewer benefits and rights by the Act, they are subject to more stringent requirements to enter into a domestic partnership than opposite-sex couples entering a marriage. (pp. 43-48)
10. At this point, the Court does not consider whether committed same-sex couples should be allowed to marry, but only whether those couples are entitled to the same rights and benefits afforded to married heterosexual couples. Cast in that light, the issue is not about the transformation of the traditional definition of marriage, but about the unequal dispensation of benefits and privileges to one of two similarly situated classes of people. (p. 48)
11. 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 committed same-sex couples of the host of benefits and privileges that are afforded to married heterosexual couples. There is, on the one hand, no rational basis for giving gays and lesbians full civil rights as individuals while, on the other hand, giving them an incomplete set of rights when they enter into committed same- sex relationships. To the extent that families are strengthened by encouraging monogamous relationships, whether heterosexual or homosexual, the Court cannot discern a public need that would justify the legal disabilities that now afflict same-sex domestic partnerships. (pp. 48-51)
12. In arguing to uphold the system of disparate treatment that disfavors same-sex couples, the State offers as a justification the interest in uniformity with other states' laws. Our current laws concerning same-sex couples are more in line with those of Vermont, Massachusetts, and Connecticut than the majority of other states. Equality of treatment is a dominant theme of our laws and a central guarantee of our State Constitution. This is fitting for a state with so diverse a population. Article I, Paragraph 1 protects not only the rights of the majority but also the rights of the disfavored and the disadvantaged; they too are promised a fair opportunity for "pursuing and obtaining safety and happiness." (pp. 51-56)
13. The equal protection requirement of Article I, Paragraph 1 leaves the Legislature with two apparent options. The Legislature could simply amend the marriage statutes to include same-sex couples, or it could create a separate statutory structure, such as a civil union. Because this State has no experience with a civil union construct, the Court will not speculate that identical schemes offering equal rights and benefits would create a distinction that would offend Article I, Paragraph 1, and will not presume that a difference in name is of constitutional magnitude. New language is developing to describe new social and familial relationships, and in time will find a place in our common vocabulary. However the Legislature may act, same-sex couples will be free to call their relationships by the name they choose and to sanctify their relationships in religious ceremonies in houses of worship. (pp. 57-63)
14. In the last two centuries, the institution of marriage has reflected society's changing social mores and values. Legislatures, along with courts, have played a major role in ushering marriage into the modern era of equality of partners. The great engine for social change in this country has always been the democratic process. Although courts can ensure equal treatment, they cannot guarantee social acceptance, which must come through the evolving ethos of a maturing society. Plaintiffs' quest does not end here. They must now appeal to their fellow citizens whose voices are heard through their popularly elected representatives. (pp. 63-64)
15. To bring the State into compliance with Article I, Paragraph 1 so that plaintiffs can exercise their full constitutional rights, the Legislature must either amend the marriage statutes or enact an appropriate statutory structure within 180 days of the date of this decision. (p. 65)
The judgment of the Appellate Division is MODIFIED and, as MODIFIED, is AFFIRMED.
CHIEF JUSTICE PORITZ has filed a separate CONCURRING and DISSENTING opinion, in which JUSTICES LONG and ZAZZALI join. She concurs in the finding of the majority that denying the rights and benefits to committed same-sex couples that are statutorily given to their heterosexual counterparts violates the equal protection guarantee of Article I, Paragraph 1 of the New Jersey Constitution. She dissents from the majority's distinguishing those rights and benefits from the right to the title of marriage. She also dissents from the majority's conclusion that there is no fundamental due process right to same-sex marriage encompassed within the concept of "liberty" guaranteed by Article I, Paragraph 1. She is of the view that persons who exercise their autonomous liberty interest to choose same-sex partners have a fundamental right to participate in a state-sanctioned civil marriage.
JUSTICES LaVECCHIA, WALLACE, and RIVERA-SOTO join in JUSTICE ALBIN's opinion. CHIEF JUSTICE PORITZ filed a separate concurring and dissenting opinion in which JUSTICES LONG and ZAZZALI join.
SUPREME COURT OF NEW JERSEY
A-68 September Term 2005
MARK LEWIS and DENNIS
WINSLOW; SAUNDRA HEATH and
CLARITA ALICIA TOBY; CRAIG
HUTCHISON and CHRIS LODEWYKS;
MAUREEN KILIAN and CINDY
MENEGHIN; SARAH and SUYIN
LAEL; MARILYN MANEELY and
DIANE MARINI; and KAREN and
MARCYE NICHOLSON-MCFADDEN,
Plaintiffs-Appellants,
v.
GWENDOLYN L. HARRIS, in her
official capacity as
Commissioner of the New
Jersey Department of Human
Services; CLIFTON R. LACY, in
his official capacity as the
Commissioner of the New
Jersey Department of Health
and Senior Services; and
JOSEPH KOMOSINSKI, in his
official capacity as Acting
State Registrar of Vital
Statistics of the New Jersey
State Department of Health
and Senior Services,
Defendants-Respondents.
Argued February 15, 2006 Decided October 25, 2006
On appeal from the Superior Court, Appellate
Division, whose opinions are reported at 378
N.J. Super. 168 (2005).
David S. Buckel, a member of the New York
bar, argued the cause for appellants
(Gibbons, Del Deo, Dolan, Griffinger &
Vecchione, attorneys; Mr. Buckel, Susan L.
Sommer, a member of the New York bar,
Lawrence S. Lustberg and Megan Lewis, on the
briefs).
Patrick DeAlmeida, Assistant Attorney
General argued the cause for respondents
(Anne Milgram, Acting Attorney General of
New Jersey, attorney; Mr. DeAlmeida and Mary
Beth Wood, on the briefs).
David R. Oakley submitted a brief on behalf
of amicus curiae Alliance for Marriage, Inc.
(Anderl & Oakley, attorneys).
Edward L. Barocas, Legal Director, submitted
a brief on behalf of amici curiae American
Civil Liberties Union of New Jersey,
American-Arab Anti-Discrimination Committee,
Asian American Legal Defense and Education
Fund, Hispanic Bar Association of New
Jersey, and The National Organization for
Women of New Jersey.
Howard M. Nashel submitted a brief on behalf
of amici curiae American Psychological
Association and New Jersey Psychological
Association (Nashel, Kates, Nussman, Rapone
& Ellis, attorneys).
Franklyn C. Steinberg, III, submitted a
brief on behalf of amicus curiae The
Anscombe Society at Princeton University.
Douglas S. Eakeley submitted a brief on
behalf of amicus curiae City of Asbury Park
(Lowenstein Sandler, attorneys).
Kevin H. Marino and John A. Boyle submitted
a brief on behalf of amici curiae Asian
Equality, Equality Federation, People for
the American Way Foundation and Vermont
Freedom to Marry Task Force (Marino &
Associates, attorneys; Paul A. Saso, of
counsel).
2
Mark L. Hopkins submitted a brief on behalf
of amicus curiae Clergy of New Jersey.
Richard F. Collier, Jr., submitted a brief
on behalf of amicus curiae Family Leader
Foundation (Collier & Basil, attorneys).
Dennis M. Caufield submitted a brief on
behalf of amicus curiae Family Research
Council.
Leslie A. Farber and Thomas H. Prol
submitted a brief on behalf of amici curiae
Garden State Equality Education Fund, Inc.
and Garden State Equality, LLC, a Continuing
Political Committee (Leslie A. Farber,
attorneys; Mr. Prol, of counsel).
Alan E. Kraus submitted a brief on behalf of
amici curiae Human Rights Campaign, Human
Rights Campaign Foundation, Children of
Lesbians and Gays Everywhere (COLAGE),
Family Pride Coalition, Freedom to Marry,
Gay & Lesbian Advocates & Defenders (GLAD),
National Center for Lesbian Rights, National
Gay and Lesbian Task Force, New Jersey
Lesbian and Gay Coalition (NJLGC), and
Parents, Families and Friends of Lesbians
and Gays (PFLAG) (Latham & Watkins,
attorneys).
Kevin Costello submitted a brief on behalf
of amicus curiae Legal Momentum (Levow &
Costello, attorneys).
Cliona A. Levy submitted a brief on behalf
of amicus curiae Madeline Marzano-Lesnevich
(Sonnenschein Nath & Rosenthal, attorneys).
Demetrios K. Stratis submitted a brief on
behalf of amici curiae Monmouth Rubber &
Plastics, Corp. and John M. Bonforte, Sr.,
(Demetrios K. Stratis, attorneys; Mr.
Stratis and Vincent P. McCarthy, on the
brief).
3
Stephen M. Orlofsky and Jordana Cooper
submitted a brief on behalf of amici curiae
National Association of Social Workers and
National Association of Social Workers New
Jersey Chapter (Blank Rome, attorneys).
Steven G. Sanders submitted a brief on
behalf of amicus curiae National Black
Justice Coalition (Arseneault, Fassett &
Mariano, attorneys).
Robert R. Fuggi, Jr., submitted a brief on
behalf of amicus curiae National Legal
Foundation (Fuggi & Fuggi, attorneys).
Michael Behrens submitted a brief on behalf
of amici curiae The New Jersey Coalition to
Preserve and Protect Marriage, The New
Jersey Family Policy Council and The New
Jersey Catholic Conference (Messina &
Laffey, attorneys).
Debra E. Guston and Trayton M. Davis, a
member of the New York bar, submitted a
brief on behalf of amici curiae New Jersey
Religious Leaders and National and Regional
Religious Organizations in Support of
Marriage (Guston & Guston, attorneys).
Stuart A. Hoberman, President, submitted a
brief on behalf of amicus curiae New Jersey
State Bar Association (Mr. Hoberman,
attorney; Felice T. Londa, Andrew J. DeMaio,
Gail Oxfeld Kanef, Robert A Knee, Scott A.
Laterra and Thomas J. Snyder, on the brief).
R. William Potter submitted a brief on
behalf of amici curiae Princeton Justice
Project and Undergraduate Student Government
of Princeton University (Potter and Dickson,
attorneys; Mr. Potter and Linda A. Colligan,
on the brief).
Michael P. Laffey submitted a brief on
behalf of amicus curiae Professors of
Psychology and Psychiatry.
4
Adam N. Saravay submitted a brief on behalf
of amicus curiae Professors of the History
of Marriage, Families, and the Law (McCarter
& English, attorneys; Mr. Saravay and Sydney
E. Dickey, on the brief).
Donald D. Campbell submitted a letter in
lieu of brief on behalf of amici curiae
United Families International and United
Families-New Jersey (Campbell & Campbell,
attorneys).
Ralph Charles Coti submitted a brief on
behalf of amici curiae James Q. Wilson,
Douglas Allen, Ph.D., David Blankenhorn,
Lloyd R. Cohen, J.D., Ph.D., John Coverdale,
J.D., Nicholas Eberstadt, Ph.D., Robert P.
George, J.D., Harold James, Ph.D., Leon R.
Kass, M.D., Ph.D., Douglas W. Kmiec and
Katherine Shaw Spaht (Coti & Segrue,
attorneys).
JUSTICE ALBIN delivered the opinion of the Court.
The statutory and decisional laws of this State protect
individuals from discrimination based on sexual orientation.
When those individuals are gays and lesbians who follow the
inclination of their sexual orientation and enter into a
committed relationship with someone of the same sex, our laws
treat them, as couples, differently than heterosexual couples.
As committed same-sex partners, they are not permitted to marry
or to enjoy the multitude of social and financial benefits and
privileges conferred on opposite-sex married couples.
In this case, we must decide whether persons of the same
sex have a fundamental right to marry that is encompassed within
5
the concept of liberty guaranteed by Article I, Paragraph 1 of
the New Jersey Constitution. Alternatively, we must decide
whether Article I, Paragraph 1's equal protection guarantee
requires that committed same-sex couples be given on equal terms
the legal benefits and privileges awarded to married
heterosexual couples and, if so, whether that guarantee also
requires that the title of marriage, as opposed to some other
term, define the committed same-sex legal relationship.
Only rights that are deeply rooted in the traditions,
history, and conscience of the people are deemed to be
fundamental. Although we cannot find that a fundamental right
to same-sex marriage exists in this State, the unequal
dispensation of rights and benefits to committed same-sex
partners can no longer be tolerated under our State
Constitution. With this State's legislative and judicial
commitment to eradicating sexual orientation discrimination as
our backdrop, we now hold that denying rights and benefits to
committed same-sex couples that are statutorily given to their
heterosexual counterparts violates the equal protection
guarantee of Article I, Paragraph 1. To comply with this
constitutional mandate, the Legislature must either amend the
marriage statutes to include same-sex couples or create a
parallel statutory structure, which will provide for, on equal
terms, the rights and benefits enjoyed and burdens and
6
obligations borne by married couples. We will not presume that
a separate statutory scheme, which uses a title other than
marriage, contravenes equal protection principles, so long as
the rights and benefits of civil marriage are made equally
available to same-sex couples. The name to be given to the
statutory scheme that provides full rights and benefits to same-
sex couples, whether marriage or some other term, is a matter
left to the democratic process.
I.
A.
Plaintiffs are seven same-sex couples who claim that New
Jersey's laws, which restrict civil marriage to the union of a
man and a woman, violate the liberty and equal protection
guarantees of the New Jersey Constitution. Each plaintiff has
been in a "permanent committed relationship" for more than ten
years and each seeks to marry his or her partner and to enjoy
the legal, financial, and social benefits that are afforded by
marriage. When the seven couples applied for marriage licenses
in the municipalities in which they live, the appropriate
licensing officials told them that the law did not permit same-
sex couples to marry. Plaintiffs then filed a complaint in the
Superior Court, Law Division, challenging the constitutionality
of the State's marriage statutes.
7
In terms of the value they place on family, career, and
community service, plaintiffs lead lives that are remarkably
similar to those of opposite-sex couples. ^1 Alicia Toby and
Saundra Heath, who reside in Newark, have lived together for
seventeen years and have children and grandchildren. Alicia is
an ordained minister in a church where her pastoral duties
include coordinating her church's HIV prevention program.
Saundra works as a dispatcher for Federal Express.
Mark Lewis and Dennis Winslow reside in Union City and have
been together for fourteen years. They both are pastors in the
Episcopal Church. In their ministerial capacities, they have
officiated at numerous weddings and signed marriage
certificates, though their own relationship cannot be similarly
sanctified under New Jersey law. When Dennis's father was
suffering from a serious long-term illness, Mark helped care for
him in their home as would a devoted son-in-law.
Diane Marini and Marilyn Maneely were committed partners
for fourteen years until Marilyn's death in 2005. ^2 The couple
lived in Haddonfield, where Diane helped raise, as though they
were her own, Marilyn's five children from an earlier marriage.
1
The following sketches of plaintiffs' lives come from
affidavits submitted to the trial court in 2003 and from factual
assertions in the complaint. We assume that their familial
relationships remain unchanged.
2
As a result of Marilyn's passing, Diane, who remains a party to
this action, seeks only declaratory relief.
8
Diane's mother considered Marilyn her daughter-in-law and
Marilyn's children her grandchildren. The daily routine of
their lives mirrored those of "other suburban married couples
[their] age." Marilyn was a registered nurse. Diane is a
businesswoman who serves on the planning board in Haddonfield,
where she is otherwise active in community affairs.
Karen and Marcye Nicholson-McFadden have been committed
partners for seventeen years, living together for most of that
time in Aberdeen. There, they are raising two young children
conceived through artificial insemination, Karen having given
birth to their daughter and Marcye to their son. They own an
executive search firm where Marcye works full-time and Karen at
night and on weekends. Karen otherwise devotes herself to
daytime parenting responsibilities. Both are generally active
in their community, with Karen serving on the township zoning
board.
Suyin and Sarah Lael have resided together in Franklin Park
for most of the sixteen years of their familial partnership.
Suyin is employed as an administrator for a non-profit
corporation, and Sarah is a speech therapist. They live with
their nine-year-old adopted daughter and two other children who
they are in the process of adopting. They legally changed their
surname and that of their daughter to reflect their status as
9
one family. Like many other couples, Suyin and Sarah share
holidays with their extended families.
Cindy Meneghin and Maureen Kilian first met in high school
and have been in a committed relationship for thirty-two years.
They have lived together for twenty-three years in Butler where
they are raising a fourteen-year-old son and a twelve-year-old
daughter. Through artificial insemination, Cindy conceived
their son and Maureen their daughter. Cindy is a director of
web services at Montclair State University, and Maureen is a
church administrator. They are deeply involved in their
children's education, attending after-school activities and PTA
meetings. They also play active roles in their church, serving
with their children in the soup kitchen to help the needy.
Chris Lodewyks and Craig Hutchison have been in a committed
relationship with each other since their college days thirty-
five years ago. They have lived together in Pompton Lakes for
the last twenty-three years. Craig works in Summit, where he is
an investment asset manager and president of the Summit Downtown
Association. He also serves as the vice-chairman of the board
of trustees of a YMCA camp for children. Chris, who is retired,
helps Craig's elderly mother with daily chores, such as getting
to the eye doctor.
The seeming ordinariness of plaintiffs' lives is belied by
the social indignities and economic difficulties that they daily
10
face due to the inferior legal standing of their relationships
compared to that of married couples. Without the benefits of
marriage, some plaintiffs have had to endure the expensive and
time-consuming process of cross-adopting each other's children
and effectuating legal surname changes. Other plaintiffs have
had to contend with economic disadvantages, such as paying
excessive health insurance premiums because employers did not
have to provide coverage to domestic partners, not having a
right to "family leave" time, and suffering adverse inheritance
tax consequences.
When some plaintiffs have been hospitalized, medical
facilities have denied privileges to their partners customarily
extended to family members. For example, when Cindy Meneghin
contracted meningitis, the hospital's medical staff at first
ignored her pleas to allow her partner Maureen to accompany her
to the emergency room. After Marcye Nicholson-McFadden gave
birth to a son, a hospital nurse challenged the right of her
partner Karen to be present in the newborn nursery to view their
child. When Diane Marini received treatment for breast cancer,
medical staff withheld information from her partner Marilyn
"that would never be withheld from a spouse or even a more
distant relative." Finally, plaintiffs recount the indignities,
11
embarrassment, and anguish that they as well as their children
have suffered in attempting to explain their family status. ^3
B.
In a complaint filed in the Superior Court, plaintiffs
sought both a declaration that the laws denying same-sex
marriage violated the liberty and equal protection guarantees of
Article I, Paragraph 1 of the New Jersey Constitution and
injunctive relief compelling defendants to grant them marriage
licenses. ^4 The defendants named in the complaint are Gwendolyn
L. Harris, the then Commissioner of the New Jersey Department of
Human Services responsible for implementing the State's marriage
statutes; Clifton R. Lacy, the then Commissioner of the New
Jersey Department of Health and Senior Services responsible for
the operation of the State Registrar of Vital Statistics; and
Joseph Komosinski, the then Acting State Registrar of Vital
3
While plaintiffs' appeal was pending before the Appellate
Division, the Legislature enacted the Domestic Partnership Act,
L. 2003, c. 246, affording certain rights and benefits to same-
sex couples who enter into domestic partnerships. With the
passage of the Act and subsequent amendments, some of the
inequities plaintiffs listed in their complaint and affidavits
have been remedied. See discussion infra Part IV.A-B. For
example, under the Domestic Partnership Act, same-sex domestic
partners now have certain hospital visitation and medical
decision-making rights. N.J.S.A. 26:8A-2(c).
4
The initial complaint in this case was filed on June 26, 2002.
That complaint was replaced by the "amended complaint" now
before us. All references in this opinion are to the amended
complaint.
12
Statistics of the Department of Health and Senior Services
responsible for supervising local registration of marriage
records. ^5 The departments run by those officials have oversight
duties relating to the issuance of marriage licenses.
The complaint detailed a number of statutory benefits and
privileges available to opposite-sex couples through New
Jersey's civil marriage laws but denied to committed same-sex
couples. Additionally, in their affidavits, plaintiffs asserted
that the laws prohibiting same-sex couples to marry caused harm
to their dignity and social standing, and inflicted psychic
injuries on them, their children, and their extended families.
The State moved to dismiss the complaint for failure to
state a claim upon which relief could be granted, see R. 4:6-
2(e), and later both parties moved for summary judgment, see R.
4:46-2(c). The trial court entered summary judgment in favor of
the State and dismissed the complaint.
In an unpublished opinion, the trial court first concluded
that marriage is restricted to the union of a man and a woman
under New Jersey law. The court maintained that the notion of
"same-sex marriage was so foreign" to the legislators who in
1912 passed the marriage statute that "a ban [on same-sex
marriage] hardly needed mention." The court next rejected
5
Each defendant was sued in his or her official capacity and
therefore stands as an alter ego of the State. For the sake of
simplicity, we refer to defendants as "the State."
13
plaintiffs' argument that same-sex couples possess a fundamental
right to marriage protected by the State Constitution, finding
that such a right was not so rooted in the collective conscience
and traditions of the people of this State as to be deemed
fundamental. Last, the court held that the marriage laws did
not violate the State Constitution's equal protection guarantee.
The court determined that "limiting marriage to mixed-gender
couples is a valid and reasonable exercise of government
authority" and that the rights of gays and lesbians could "be
protected in ways other than alteration of the traditional
understanding of marriage." Plaintiffs were attempting "not to
lift a barrier to marriage," according to the court, but rather
"to change its very essence." To accomplish that end, the court
suggested that plaintiffs would have to seek relief from the
Legislature, which at the time was considering the passage of a
domestic partnership act.
C.
A divided three-judge panel of the Appellate Division
affirmed. Lewis v. Harris, 378 N.J. Super. 168, 194 (App. Div.
2005). Writing for the majority, Judge Skillman determined that
New Jersey's marriage statutes do not contravene the substantive
due process and equal protection guarantees of Article I,
Paragraph 1 of the State Constitution. Id. at 188-89. In
14
analyzing the substantive due process claim, Judge Skillman
concluded that "[m]arriage between members of the same sex is
clearly not a fundamental right." Id. at 183 (internal
quotation marks omitted). He reached that conclusion because he
could find no support for such a proposition in the text of the
State Constitution, this State's history and traditions, or
contemporary social standards. Id. at 183-84. He noted that
"[o]ur leading religions view marriage as a union of men and
women recognized by God" and 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." Id. at 185. ^6
In rebuffing plaintiffs' equal protection claim, Judge
Skillman looked to the balancing test that governs such claims -
- a consideration of "`the nature of the affected right, the
extent to which the governmental restriction intrudes upon it,
and the public need for the restriction.'" Id. at 189 (quoting
Greenberg v. Kimmelman, 99 N.J. 552, 567 (1985)). Starting with
the premise that there is no fundamental right to same-sex
marriage, Judge Skillman reasoned that plaintiffs could not
demonstrate the existence of an "affected" or "claimed" right.
6
It should be noted that the "Attorney General disclaim[ed]
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." Id. at
185 n.2.
15
Id. at 189-90 (internal quotation marks omitted). From that
viewpoint, the State was not required to show that a public need
for limiting marriage to opposite-sex couples outweighed a non-
existent affected right to same-sex marriage. Id. at 190.
Judge Skillman chronicled the legislative progress made by
same-sex couples through such enactments as the Domestic
Partnership Act and expressed his view of the constricted role
of judges in setting social policy: "A constitution is not
simply an empty receptacle into which judges may pour their own
conceptions of evolving social mores." Id. at 176-79. In the
absence of a constitutional mandate, he concluded that only the
Legislature could authorize marriage between members of the same
sex. Id. at 194. Judge Skillman, however, emphasized that
same-sex couples "may assert claims that the due process and
equal protection guarantees of [the State Constitution] entitle
them to additional legal benefits provided by marriage." Ibid.
In a separate opinion, Judge Parrillo fully concurred with
Judge Skillman's reasoning, but added his view of the twofold
nature of the relief sought by plaintiffs -- "the right to marry
and the rights of marriage." Id. at 194-95 (Parrillo, J.,
concurring). Judge Parrillo observed that the right to marry
necessarily includes significant "economic, legal and regulatory
benefits," the so-called rights of marriage. Id. at 195. With
regard to those "publicly-conferred tangible [and] intangible
16
benefits" incident to marriage that are denied to same-sex
couples, Judge Parrillo asserted plaintiffs are free to
challenge "on an ad-hoc basis" any "particular statutory
exclusion resulting in disparate or unfair treatment." Ibid.
He concluded, however, that courts had no constitutional
authority to alter "a core feature of marriage," namely "its
binary, opposite-sex nature." Id. at 199-200. He maintained
that "[p]rocreative 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." Id. at 197. He submitted that it was the
Legislature's role "to weigh the societal costs against the
societal benefits flowing from a profound change in the public
meaning of marriage." Id. at 200.
In dissenting, Judge Collester concluded that the
substantive due process and equal protection guarantees of
Article I, Paragraph 1 obligate the State to afford same-sex
couples the right to marry on terms equal to those afforded to
opposite-sex couples. Id. at 218-20 (Collester, J.,
dissenting). He charted the evolving nature of the institution
of marriage and of the rights and protections afforded to same-
sex couples, and reasoned that outdated conceptions of marriage
"cannot justify contemporary violations of constitutional
17
guarantees." Id. at 206-10. He described the majority's
argument as circular: Plaintiffs have no constitutional right
to marry because this State's laws by definition do not permit
same-sex couples to marry. Id. at 204. That paradigm, Judge
Collester believed, unfairly insulated the State's marriage laws
from plaintiffs' constitutional claims and denied "plaintiffs
the right to enter into lawful marriage in this State with the
person of their choice." Id. at 204, 211. Judge Collester
dismissed the notion that "procreation or the ability to
procreate is central to marriage" today and pointed out that
four plaintiffs in this case gave birth to children after
artificial insemination. Id. at 211-12. He further asserted
that if marriage indeed is "the optimal environment for child
rearing," then denying plaintiffs the right to marry their
committed partners is fundamentally unfair to their children.
Id. at 212-13 (internal quotation marks omitted). Because the
current marriage laws prohibit "a central life choice to some
and not others based on sexual orientation" and because he could
find no rational basis for limiting the right of marriage to
opposite-sex couples, Judge Collester determined that the State
had deprived plaintiffs of their right to substantive due
process and equal protection of the laws. Id. at 216-20.
We review this case as of right based on the dissent in the
Appellate Division. See R. 2:2-1(a)(2). We granted the motions
18
of a number of individuals and organizations to participate as
amici curiae.
II.
This appeal comes before us from a grant of summary
judgment in favor of the State. See R. 4:46-2(c). As this case
raises no factual disputes, we address solely questions of law,
and thus are not bound to defer to the legal conclusions of the
lower courts. See Balsamides v. Protameen Chems., Inc., 160
N.J. 352, 372 (1999) (stating that "matters of law are subject
to a de novo review").
Plaintiffs contend that the State's laws barring members of
the same sex from marrying their chosen partners violate the New
Jersey Constitution. They make no claim that those laws
contravene the Federal Constitution. Plaintiffs present a
twofold argument. They first assert that same-sex couples have
a fundamental right to marry that is protected by the liberty
guarantee of Article I, Paragraph 1 of the State Constitution.
They next assert that denying same-sex couples the right to
marriage afforded to opposite-sex couples violates the equal
protection guarantee of that constitutional provision.
In defending the constitutionality of its marriage laws,
the State submits that same-sex marriage has no historical roots
in the traditions or collective conscience of the people of New
19
Jersey to give it the ranking of a fundamental right, and that
limiting marriage to opposite-sex couples is a rational exercise
of social policy by the Legislature. The State concedes that
state law and policy do not support the argument that limiting
marriage to heterosexual couples is necessary for either
procreative purposes or providing the optimal environment for
raising children. ^7 Indeed, the State not only recognizes the
right of gay and lesbian parents to raise their own children,
but also places foster children in same-sex parent homes through
the Division of Youth and Family Services.
The State rests its case on age-old traditions, beliefs,
and laws, which have defined the essential nature of marriage to
be the union of a man and a woman. The long-held historical
view of marriage, according to the State, provides a sufficient
basis to uphold the constitutionality of the marriage statutes.
Any change to the bedrock principle that limits marriage to
persons of the opposite sex, the State argues, must come from
the democratic process.
The legal battle in this case has been waged over one
overarching issue -- the right to marry. A civil marriage
license entitles those wedded to a vast array of economic and
social benefits and privileges -- the rights of marriage.
7
Unlike the Appellate Division, we will not rely on policy
justifications disavowed by the State, even though vigorously
advanced by amici curiae.
20
Plaintiffs have pursued the singular goal of obtaining the right
to marry, knowing that, if successful, the rights of marriage
automatically follow. We do not have to take that all-or-
nothing approach. We perceive plaintiffs' equal protection
claim to have two components: whether committed same-sex couples
have a constitutional right to the benefits and privileges
afforded to married heterosexual couples, and, if so, whether
they have the constitutional right to have their "permanent
committed relationship" recognized by the name of marriage.
After we address plaintiffs' fundamental right argument, we will
examine those equal protection issues in turn.
III.
Plaintiffs contend that the right to marry a person of the
same sex is a fundamental right secured by the liberty guarantee
of Article I, Paragraph 1 of the New Jersey Constitution.
Plaintiffs maintain that the liberty interest at stake is "the
right of every adult to choose whom to marry without
intervention of government." Plaintiffs do not profess a desire
to overthrow all state regulation of marriage, such as the
prohibition on polygamy and restrictions based on consanguinity
and age. ^8 They therefore accept some limitations on "the
8
Plaintiffs concede that the State can insist on the binary
nature of marriage, limiting marriage to one per person at any
21
exercise of personal choice in marriage." They do claim,
however, that the State cannot regulate marriage by defining it
as the union between a man and a woman without offending our
State Constitution. In assessing their liberty claim, we must
determine whether the right of a person to marry someone of the
same sex is so deeply rooted in the traditions and collective
conscience of our people that it must be deemed fundamental
under Article I, Paragraph 1. We thus begin with the text of
Article I, Paragraph 1, which provides:
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.
[N.J. Const. art. I, ¶ 1.]
The origins of Article I, Paragraph 1 date back to New
Jersey's 1844 Constitution. ^9 That first paragraph of our
Constitution is, in part, "a `general recognition of those
absolute rights of the citizen which were a part of the common
given time. As Judge Skillman pointed out, polygamists
undoubtedly would insist that the essential nature of marriage
is the coupling of people of the opposite sex while defending
multiple marriages on religious principles. Lewis, supra, 378
N.J. Super. at 187-88.
9
The text of Article I, Paragraph 1 of the 1947 New Jersey
Constitution largely parallels the language of the 1844
Constitution. Compare N.J. Const. art. I, ¶ 1, with N.J. Const.
of 1844 art. I, ¶ 1.
22
law.'" King v. S. Jersey Nat'l Bank, 66 N.J. 161, 178 (1974)
(quoting Ransom v. Black, 54 N.J.L. 446, 448 (Sup. Ct. 1892),
aff'd per curiam, 65 N.J.L. 688 (E. & A. 1893)). In attempting
to discern those substantive rights that are fundamental under
Article I, Paragraph 1, we have adopted the general standard
followed by the United States Supreme Court in construing the
Due Process Clause of the Fourteenth Amendment of the Federal
Constitution. We "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.'" Ibid.
(internal quotation marks omitted) (alterations in original)
(quoting Griswold v. Connecticut, 381 U.S. 479, 493, 85 S. Ct.
1678, 1686, 14 L. Ed. 2d 510, 520 (1965) (Goldberg, J.,
concurring)); see also Watkins v. Nelson, 163 N.J. 235, 245
(2000); Doe v. Poritz, 142 N.J. 1, 120 (1995); State v. Parker,
124 N.J. 628, 648 (1991), cert. denied, 503 U.S. 939, 112 S. Ct.
1483, 117 L. Ed. 2d 625 (1992).
Under Article I, Paragraph 1, as under the Fourteenth
Amendment's substantive due process analysis, determining
whether a fundamental right exists involves a two-step inquiry.
First, the asserted fundamental liberty interest must be clearly
identified. See Washington v. Glucksberg, 521 U.S. 702, 721,
117 S. Ct. 2258, 2268, 138 L. Ed. 2d 772, 788 (1997). Second,
that liberty interest must be objectively and deeply rooted in
23
the traditions, history, and conscience of the people of this
State. See King, supra, 66 N.J. at 178; see also Glucksberg,
supra, 521 U.S. at 720-21, 117 S. Ct. at 2268, 138 L. Ed. 2d at
787-88 (stating that liberty interest must be "objectively,
deeply rooted in this Nation's history and tradition" and
"implicit in the concept of ordered liberty" (internal quotation
marks omitted)).
How the right is defined may dictate whether it is deemed
fundamental. One such example is Glucksberg, supra, a case
involving a challenge to Washington's law prohibiting and
criminalizing assisted suicide. 521 U.S. at 705-06, 117 S. Ct.
at 2261, 138 L. Ed. 2d at 779. In that case, the Supreme Court
stated that the liberty interest at issue was not the "`liberty
to choose how to die,'" but rather the "right to commit suicide
with another's assistance." Id. at 722-24, 117 S. Ct. at 2269,
138 L. Ed. 2d at 789-90. Having framed the issue that way, the
Court concluded that the right to assisted suicide was not
deeply rooted in the nation's history and traditions and
therefore not a fundamental liberty interest under substantive
due process. Id. at 723, 728, 117 S. Ct. at 2269, 2271, 138 L.
Ed. 2d at 789, 792.
The right to marriage is recognized as fundamental by both
our Federal and State Constitutions. See, e.g., Zablocki v.
Redhail, 434 U.S. 374, 383-84, 98 S. Ct. 673, 679-80, 54 L. Ed.
24
2d 618, 628-29 (1978); J.B. v. M.B., 170 N.J. 9, 23-24 (2001).
That broadly stated right, however, is "subject to reasonable
state regulation." Greenberg, supra, 99 N.J. at 572. Although
the fundamental right to marriage extends even to those
imprisoned, Turner v. Safley, 482 U.S. 78, 95-96, 107 S. Ct.
2254, 2265, 96 L. Ed. 2d 64, 83 (1987), and those in
noncompliance with their child support obligations, Zablocki,
supra, 434 U.S. at 387-91, 98 S. Ct. at 681-83, 54 L. Ed. 2d at
631-33, it does not extend to polygamous, incestuous, and
adolescent marriages, N.J.S.A. 2C:24-1; N.J.S.A. 37:1-1, -6. In
this case, 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. Thus, we are
concerned only with the question of whether the right to same-
sex marriage is deeply rooted in this State's history and its
people's collective conscience. ^10
In answering that question, we are not bound by the
nation's experience or the precedents of other states, although
10
The dissent posits that we have defined the right too narrowly
and that the fundamental right to marry involves nothing less
than "the liberty to choose, as a matter of personal autonomy."
Post at (slip op. at 11). That expansively stated
formulation, however, would eviscerate any logic behind the
State's authority to forbid incestuous and polygamous marriages.
For example, under the dissent's approach, the State would have
no legitimate interest in preventing a sister and brother or
father and daughter (assuming child bearing is not involved)
from exercising their "personal autonomy" and "liberty to
choose" to marry.
25
they may provide guideposts and persuasive authority. See Doe
v. Poritz, supra, 142 N.J. at 119-20 (stating that although
practice "followed by a large number of states is not
conclusive[,] . . . it is plainly worth considering in
determining whether the practice offends some principle of
justice so rooted in the traditions and conscience of our people
as to be ranked as fundamental" (internal quotation marks
omitted)). Our starting point is the State's marriage laws.
Plaintiffs do not dispute that New Jersey's civil marriage
statutes, N.J.S.A. 37:1-1 to 37:2-41, which were first enacted
in 1912, limit marriage to heterosexual couples. That
limitation is clear from the use of gender-specific language in
the text of various statutes. See, e.g., N.J.S.A. 37:1-1
(describing prohibited marriages in terms of opposite-sex
relatives); N.J.S.A. 37:2-10 (providing that "husband" is not
liable for debts of "wife" incurred before or after marriage);
N.J.S.A. 37:2-18.1 (providing release rights of curtesy and
dower for "husband" and "wife"). More recently, in passing the
Domestic Partnership Act to ameliorate some of the economic and
social disparities between committed same-sex couples and
married heterosexual couples, the Legislature explicitly
acknowledged that same-sex couples cannot marry. See N.J.S.A.
26:8A-2(e).
26
Three decades ago, Justice (then Judge) Handler wrote that
"[d]espite winds of change," there was almost a universal
recognition that "a lawful marriage requires the performance of
a ceremonial marriage of two persons of the opposite sex, a male
and a female." M.T. v. J.T., 140 N.J. Super. 77, 83-84 (App.
Div.), certif. denied, 71 N.J. 345 (1976). With the exception
of Massachusetts, every state's law, explicitly or implicitly,
defines marriage to mean the union of a man and a woman. ^11
Although today there is a nationwide public debate raging
over whether same-sex marriage should be authorized under the
laws or constitutions of the various states, the framers of the
1947 New Jersey Constitution, much less the drafters of our
11
Alaska Const. art. I, § 25; Ark. Const. amend. 83, § 1; Ga.
Const. art. I, § IV, ¶ I; Haw. Const. art. I, § 23; Kan. Const.
art. XV, § 16; Ky. Const. § 233a; La. Const. art. XII, § 15;
Mich. Const. art. I, § 25; Miss. Const. art. 14, § 263A; Mo.
Const. art. I, § 33; Mont. Const. art. XIII, § 7; Neb. Const.
art. I, § 29; Nev. Const. art. I, § 21; N.D. Const. art. XI, §
28; Ohio Const. art. XV, § 11; Okla. Const. art. II, § 35; Or.
Const. art. XV, § 5a; Tex. Const. art. I, § 32; Utah Const. art.
I, § 29; Ala. Code § 30-1-19; Ariz. Rev. Stat. § 25-101; Cal.
Fam. Code § 308.5; Colo. Rev. Stat. § 14-2-104; Conn. Gen. Stat.
§ 45a-727a; Del. Code Ann. tit. 13, § 101; Fla. Stat. § 741.212;
Idaho Code Ann. § 32-201; 750 Ill. Comp. Stat. 5/201, 5/212;
Ind. Code § 31-11-1-1; Iowa Code § 595.2; Me. Rev. Stat. Ann.
tit. 19-A, §§ 650, 701; Md. Code Ann., Fam. Law § 2-201; Minn.
Stat. §§ 517.01, 517.03; N.H. Rev. Stat. Ann. §§ 457:1, 457:2;
N.J.S.A. 37:1-1, -3; N.M. Stat. § 40-1-18; N.Y. Dom. Rel. Law §§
12, 50; N.C. Gen. Stat. §§ 51-1, 51-1.2; 23 Pa. Cons. Stat. §§
1102, 1704; R.I. Gen. Laws §§ 15-1-1, 15-1-2, 15-2-1; S.C. Code
Ann. § 20-1-15; S.D. Codified Laws § 25-1-1; Tenn. Code Ann. §
36-3-113; Vt. Stat. Ann. tit. 15, § 8; Va. Code Ann. §§ 20-45.2,
20-45.3; Wash. Rev. Code § 26.04.020(1)(c); W. Va. Code § 48-2-
104(c); Wis. Stat. §§ 765.001(2), 765.01; Wyo. Stat. Ann. § 20-
1-101.
27
marriage statutes, could not have imagined that the liberty
right protected by Article I, Paragraph 1 embraced the right of
a person to marry someone of his or her own sex. See, e.g.,
Baker v. Nelson, 191 N.W.2d 185, 186 (Minn. 1971) ("The
institution of marriage as a union of man and woman . . . is as
old as the book of Genesis."), appeal dismissed, 409 U.S. 810,
93 S. Ct. 37, 34 L. Ed. 2d 65 (1972); Nancy F. Cott, Public
Vows: A History of Marriage and the Nation 2-3 (2000)
(describing particular model of marriage "deeply implanted" in
United States history to be "lifelong, faithful monogamy, formed
by the mutual consent of a man and a woman"); see also 1
U.S.C.A. § 7 (defining under Federal Defense of Marriage Act
"the word `marriage' [to] mean[] only a legal union between one
man and one woman as husband and wife").
Times and attitudes have changed, and there has been a
developing understanding that discrimination against gays and
lesbians is no longer acceptable in this State, as is evidenced
by various laws and judicial decisions prohibiting differential
treatment based on sexual orientation. See, e.g., N.J.S.A.
10:5-4 (prohibiting discrimination on basis of sexual
orientation); N.J.S.A. 26:8A-1 to -13 (affording various rights
to same-sex couples under Domestic Partnership Act); In re
Adoption of a Child by J.M.G., 267 N.J. Super. 622, 623, 625
(Ch. Div. 1993) (determining that lesbian partner was entitled
28
to adopt biological child of partner). See generally Joshua
Kaplan, Unmasking the Federal Marriage Amendment: The Status of
Sexuality, 6 Geo. J. Gender & L. 105, 123-24 (2005) (noting that
"1969 is widely recognized as the beginning of the gay rights
movement," which is considered "relatively new to the national
agenda"). On the federal level, moreover, the United States
Supreme Court has struck down laws that have unconstitutionally
targeted gays and lesbians for disparate treatment.
In Romer v. Evans, Colorado passed an amendment to its
constitution that prohibited all legislative, executive, or
judicial action designed to afford homosexuals protection from
discrimination based on sexual orientation. 517 U.S. 620, 623-
24, 116 S. Ct. 1620, 1623, 134 L. Ed. 2d 855, 860-61 (1996).
The Supreme Court declared that Colorado's constitutional
provision violated the Fourteenth Amendment's Equal Protection
Clause because it "impos[ed] a broad and undifferentiated
disability on a single named group" and appeared to be motivated
by an "animus toward" gays and lesbians. Id. at 632, 116 S. Ct.
at 1627, 1628, 134 L. Ed. 2d at 865-66. The Court concluded
that a state could not make "a class of persons a stranger to
its laws." Id. at 635, 116 S. Ct. at 1629, 134 L. Ed. 2d at
868.
More recently, in Lawrence v. Texas, the Court invalidated
on Fourteenth Amendment due process grounds Texas's sodomy
29
statute, which made it a crime for homosexuals "to engage in
certain intimate sexual conduct." 539 U.S. 558, 562, 578, 123
S. Ct. 2472, 2475, 2484, 156 L. Ed. 2d 508, 515, 525-26 (2003).
The Court held that the "liberty" protected by the Due Process
Clause prevented Texas from controlling the destiny of
homosexuals "by making their private sexual conduct a crime."
Id. at 578, 123 S. Ct. at 2484, 156 L. Ed. 2d at 525. The
Lawrence Court, however, pointedly noted that the case did "not
involve whether the government must give formal recognition to
any relationship that homosexual persons seek to enter." Ibid.
In a concurring opinion, Justice O'Connor concluded that the
Texas law, as applied to the private, consensual conduct of
homosexuals, violated the Equal Protection Clause, but strongly
suggested that a state's legitimate interest in "preserving the
traditional institution of marriage" would allow for
distinguishing between heterosexuals and homosexuals without
offending equal protection principles. Id. at 585, 123 S. Ct.
at 2487-88, 156 L. Ed. 2d at 530 (O'Connor, J., concurring).
Plaintiffs rely on the Romer and Lawrence cases to argue
that they have a fundamental right to marry under the New Jersey
Constitution, not that they have such a right under the Federal
Constitution. Although those recent cases openly advance the
civil rights of gays and lesbians, they fall far short of
30
establishing a right to same-sex marriage deeply rooted in the
traditions, history, and conscience of the people of this State.
Plaintiffs also rely on Loving v. Virginia, 388 U.S. 1, 87
S. Ct. 1817, 18 L. Ed. 2d 1010 (1967), to support their claim
that the right to same-sex marriage is fundamental. In Loving,
the United States Supreme Court held that Virginia's
antimiscegenation statutes, which prohibited and criminalized
interracial marriages, violated the Equal Protection and Due
Process Clauses of the Fourteenth Amendment. Id. at 2, 87 S.
Ct. at 1818, 18 L. Ed. 2d at 1012. Although the Court
reaffirmed the fundamental right of marriage, the heart of the
case was invidious discrimination based on race, the very evil
that motivated passage of the Fourteenth Amendment. Id. at 10-
12, 87 S. Ct. at 1823-24, 18 L. Ed. 2d at 1017-18. The Court
stated that "[t]he clear and central purpose of the Fourteenth
Amendment was to eliminate all official state sources of
invidious racial discrimination in the States." Id. at 10, 87
S. Ct. at 1823, 18 L. Ed. 2d at 1017. For that reason, the
Court concluded that "restricting the freedom to marry solely
because of racial classifications violates the central meaning
of the Equal Protection Clause." Id. at 12, 87 S. Ct. at 1823,
18 L. Ed. 2d at 1018. From the fact-specific background of that
case, which dealt with intolerable racial distinctions that
patently violated the Fourteenth Amendment, we cannot find
31
support for plaintiffs claim that there is a fundamental right
to same-sex marriage under our State Constitution. We add that
all of the United States Supreme Court cases cited by
plaintiffs, Loving, Turner, and Zablocki, involved heterosexual
couples seeking access to the right to marriage and did not
implicate directly the primary question to be answered in this
case.
Within the concept of liberty protected by Article I,
Paragraph 1 of the New Jersey Constitution are core rights of
such overriding value that we consider them to be fundamental.
Determining whether a particular claimed right is fundamental is
a task that requires both caution and foresight. When engaging
in a substantive due process analysis under the Fourteenth
Amendment, the United States Supreme Court has instructed that
it must "exercise the utmost care" before finding new rights,
which place important social issues beyond public debate, "lest
the liberty protected by the Due Process Clause be subtly
transformed into the policy preferences of the Members of [the]
Court." Glucksberg, supra, 521 U.S. at 720, 117 S. Ct. at 2267-
68, 138 L. Ed. 2d at 787 (internal quotation marks omitted). In
searching for the meaning of "liberty" under Article I,
Paragraph 1, we must resist the temptation of seeing in the
majesty of that word only a mirror image of our own strongly
felt opinions and beliefs. Under the guise of newly found
32
rights, we must be careful not to impose our personal value
system on eight-and-one-half million people, thus bypassing the
democratic process as the primary means of effecting social
change in this State. That being said, this Court will never
abandon its responsibility to protect the fundamental rights of
all of our citizens, even the most alienated and disfavored, no
matter how strong the winds of popular opinion may blow.
Despite the rich diversity of this State, the tolerance and
goodness of its people, and the many recent advances made by
gays and lesbians toward achieving social acceptance and
equality under the law, we cannot find that a right to same-sex
marriage is so deeply rooted in the traditions, history, and
conscience of the people of this State that it ranks as a
fundamental right. When looking for the source of our rights
under the New Jersey Constitution, we need not look beyond our
borders. Nevertheless, we do take note that no jurisdiction,
not even Massachusetts, has declared that there is a fundamental
right to same-sex marriage under the federal or its own
constitution. ^12
12
See Dean v. District of Columbia, 653 A.2d 307, 331 (D.C.
1995); Standhardt v. Superior Court of Ariz., 77 P.3d 451, 459-
60 (Ariz. Ct. App. 2003); Baehr v. Lewin, 852 P.2d 44, 57 (Haw.
1993); Morrison v. Sadler, 821 N.E.2d 15, 34 (Ind. Ct. App.
2005); Baker, supra, 191 N.W.2d at 186; Hernandez v. Robles,
Nos. 86-89, 2006 N.Y. LEXIS 1836, at *14-15 (N.Y. July 6, 2006)
(plurality opinion); Andersen v. State, 2006 Wash. LEXIS 598, at
*38-43, *68 (Wash. July 26, 2006) (plurality opinion); see also
33
Having decided that there is no fundamental right to same-
sex marriage does not end our inquiry. See WHS Realty Co. v.
Town of Morristown, 323 N.J. Super. 553, 562-63 (App. Div.)
(recognizing that although provision of municipal service is not
fundamental right, inequitable provision of that service is
subject to equal protection analysis), certif. denied, 162 N.J.
489 (1999). We now must examine whether those laws that deny to
committed same-sex couples both the right to and the rights of
marriage afforded to heterosexual couples offend the equal
protection principles of our State Constitution.
IV.
Article I, Paragraph 1 of the New Jersey Constitution sets
forth the first principles of our governmental charter -- that
every person possesses the "unalienable rights" to enjoy life,
liberty, and property, and to pursue happiness. Although our
State Constitution nowhere expressly states that every person
shall be entitled to the equal protection of the laws, we have
construed the expansive language of Article I, Paragraph 1 to
embrace that fundamental guarantee. Sojourner A. v. N.J. Dep't
of Human Servs., 177 N.J. 318, 332 (2003); Greenberg, supra, 99
Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941, 961 (Mass.
2003) (stating that it was not necessary to reach fundamental
right issue in light of finding that no rational basis existed
for denying same-sex couples right to marry under state
constitution).
34
N.J. at 568. Quite simply, that first paragraph to our State
Constitution "protect[s] against injustice and against the
unequal treatment of those who should be treated alike."
Greenberg, supra, 99 N.J. at 568.
Plaintiffs claim that the State's marriage laws have
relegated them to "second-class citizenship" by denying them the
"tangible and intangible" benefits available to heterosexual
couples through marriage. Depriving same-sex partners access to
civil marriage and its benefits, plaintiffs contend, violates
Article I, Paragraph 1's equal protection guarantee. We must
determine whether the State's marriage laws permissibly
distinguish between same-sex and heterosexual couples.
When a statute is challenged on the ground that it does not
apply evenhandedly to similarly situated people, our equal
protection jurisprudence requires that the legislation, in
distinguishing between two classes of people, bear a substantial
relationship to a legitimate governmental purpose. Caviglia v.
Royal Tours of Am., 178 N.J. 460, 472-73 (2004); Barone v. Dep't
of Human Servs., 107 N.J. 355, 368 (1987). The test that we
have applied to such equal protection claims involves the
weighing of three factors: the nature of the right at stake, the
extent to which the challenged statutory scheme restricts that
right, and the public need for the statutory restriction.
Greenberg, supra, 99 N.J. at 567; Robinson v. Cahill, 62 N.J.
35
473, 491-92, cert. denied, 414 U.S. 976, 94 S. Ct. 292, 38 L.
Ed. 2d 219 (1973). The test is a flexible one, measuring the
importance of the right against the need for the governmental
restriction. ^13 See Sojourner A., supra, 177 N.J. at 333. Under
that approach, each claim is examined "on a continuum that
reflects the nature of the burdened right and the importance of
the governmental restriction." Ibid. Accordingly, "the more
personal the right, the greater the public need must be to
justify governmental interference with the exercise of that
right." George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J.
8, 29 (1994); see also Taxpayers Ass'n of Weymouth Twp. v.
Weymouth Twp., 80 N.J. 6, 43 (1976), cert. denied, 430 U.S. 977,
97 S. Ct. 1672, 52 L. Ed. 2d 373 (1977). Unless the public need
justifies statutorily limiting the exercise of a claimed right,
the State's action is deemed arbitrary. See Robinson, supra, 62
N.J. at 491-92.
A.
13
Our state equal protection analysis differs from the more
rigid, three-tiered federal equal protection methodology. When
a statute is challenged under the Fourteenth Amendment's Equal
Protection Clause, one of three tiers of review applies --
strict scrutiny, intermediate scrutiny, or rational basis --
depending on whether a fundamental right, protected class, or
some other protected interest is in question. Clark v. Jeter,
486 U.S. 456, 461, 108 S. Ct. 1910, 1914, 100 L. Ed. 2d 465, 471
(1988). All classifications must at a minimum survive rational
basis review, the lowest tier. Ibid.
36
In conducting this equal protection analysis, we discern
two distinct issues. The first is whether committed same-sex
couples have the right to the statutory benefits and privileges
conferred on heterosexual married couples. Next, assuming a
right to equal benefits and privileges, the issue is whether
committed same-sex partners have a constitutional right to
define their relationship by the name of marriage, the word that
historically has characterized the union of a man and a woman.
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. See N.J.S.A. 10:5-4.
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. In re
J.S. & C., 129 N.J. Super. 486, 489 (Ch. Div. 1974), aff'd per
curiam, 142 N.J. Super. 499 (App. Div. 1976). Five years later,
37
the Appellate Division stated that the custodial rights of a
mother could not be denied or impaired because she was a
lesbian. M.P. v. S.P., 169 N.J. Super. 425, 427 (App. Div.
1979). 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. ^14 J.M.G., supra, 267 N.J. Super.
at 625, 626, 631 (recognizing "importance of the emotional
benefit of formal recognition of the relationship between [the
non-biological mother] and the child" and that there is not one
correct family paradigm for creating "supportive, loving
environment" for children); see also In re Adoption of Two
Children by H.N.R., 285 N.J. Super. 1, 3 (App. Div. 1995)
(finding that "best interests" of children supported adoption by
same-sex partner of biological mother). 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. V.C. v. M.J.B., 163 N.J. 200, 206-07, 230,
cert. denied, 531 U.S. 926, 121 S. Ct. 302, 148 L. Ed. 2d 243
(2000); see also id. at 232 (Long, J., concurring) (noting that
no one "particular model of family life" has monopoly on
14
Unlike New Jersey, a number of states prohibit adoption by
same-sex couples. See Kari E. Hong, Parens Patriarchy:
Adoption, Eugenics, and Same-Sex Couples, 40 Cal. W. L. Rev. 1,
2-3 (2003) (detailing states that have enacted measures to
restrict adoption by same-sex couples).
38
"`family values'" and that "[t]hose qualities of family life on
which society places a premium . . . are unrelated to the
particular form a family takes"). 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. In
re Application for Change of Name by Bacharach, 344 N.J. Super.
126, 130-31, 136 (App. Div. 2001).
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 (LAD), L. 1991, c. 519, New Jersey became the
fifth state ^15 in the nation to prohibit discrimination on the
basis of "affectional or sexual orientation." ^16 See N.J.S.A.
10:5-4. In making sexual orientation a protected category, the
Legislature committed New Jersey to the goal of eradicating
15
At the time of New Jersey's amendment, only four other states,
Wisconsin, Massachusetts, Connecticut, and Hawaii, had adopted
similar anti-discrimination provisions. See L. 1981, c. 112
(codified at Wis. Stat. §§ 111.31 to 111.39 (1982)); St. 1989,
c. 516 (codified at Mass. Gen. Laws ch. 151B, §§ 1 to 10
(1989)); Public Act No. 91-58 (codified at Conn. Gen. Stat. §§
46a-81a to -81r (1991)); L. 1991, c. 2 (codified at Haw. Rev.
Stat. §§ 378-1 to 6 (1991)); L. 1991, c. 519 (codified at
N.J.S.A. 10:5-1 to -42 (1992)).
16
"Affectional or sexual orientation" is defined to mean "male
or female heterosexuality, homosexuality or bisexuality by
inclination, practice, identity or expression, having a history
thereof or being perceived, presumed or identified by others as
having such an orientation." N.J.S.A. 10:5-5(hh).
39
discrimination against gays and lesbians. See also Fuchilla v.
Layman, 109 N.J. 319, 334 ("[T]he overarching goal of the [LAD]
is nothing less than the eradication of the cancer of
discrimination." (internal quotation marks omitted)), cert.
denied, 488 U.S. 826, 109 S. Ct. 75, 102 L. Ed. 2d 51 (1988).
In 2004, the Legislature added "domestic partnership status" to
the categories protected by the LAD. L. 2003, c. 246.
The LAD guarantees that gays and lesbians, as well as same-
sex 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. N.J.S.A. 10:5-12. The LAD declares that
access to those opportunities and basic needs of modern life is
a civil right. N.J.S.A. 10:5-4.
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, N.J.S.A. 2C:16-1(a)(1), and has
provided a civil cause of action against the offender, N.J.S.A.
2A:53A-21. It is a crime for a public official to deny a person
any "right, privilege, power or immunity" on the basis of sexual
orientation. N.J.S.A. 2C:30-6(a). It is also unlawful to
40
discriminate against gays and lesbians under the Local Public
Contracts Law and the Public Schools Contracts Law. N.J.S.A.
40A:11-13; N.J.S.A. 18A:18A-15. 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,
N.J.S.A. 52:9DD-8, and required school districts to adopt anti-
bullying and anti-intimidation policies to protect, among
others, gays and lesbians, N.J.S.A. 18A:37-14, -15(a).
In 2004, the Legislature passed the Domestic Partnership
Act, L. 2003, c. 246, making available to committed same-sex
couples "certain rights and benefits that are accorded to
married couples under the laws of New Jersey." ^17 N.J.S.A. 26:8A-
2(d). 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," N.J.S.A. 26:8A-
2(a), and that those "mutually supportive relationships should
be formally recognized by statute," N.J.S.A. 26:8A-2(c). The
Legislature also acknowledged that such relationships "assist
17
The rights and benefits provided by the Domestic Partnership
Act extend to two classes of people -- persons who "are of the
same sex and therefore unable to enter into a marriage with each
other that is recognized by New Jersey law" and persons "who are
each 62 years of age or older and not of the same sex."
N.J.S.A. 26:8A-4(b)(5).
41
the State by their establishment of a private network of support
for the financial, physical and emotional health of their
participants." N.J.S.A. 26:8A-2(b).
For those same-sex couples who enter into a domestic
partnership, the Act provides a limited number of rights and
benefits possessed by married couples, including "statutory
protection against various forms of discrimination against
domestic partners; certain visitation and decision-making rights
in a health care setting; certain tax-related benefits; and, in
some cases, health and pension benefits that are provided in the
same manner as for spouses." N.J.S.A. 26:8A-2(c). Later
amendments to other statutes have provided domestic partners
with additional rights pertaining to funeral arrangements and
disposition of the remains of a deceased partner, L. 2005, c.
331, inheritance privileges when the deceased partner dies
without a will, L. 2005, c. 331, and guardianship rights in the
event of a partner's incapacitation, L. 2005, c. 304.
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
42
role in enabling these persons to enjoy their familial
relationships as domestic partners." N.J.S.A. 26:8A-2(d).
Aside from federal decisions such as Romer, supra, and
Lawrence, supra, 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.
B.
We next examine the extent to which New Jersey's laws
continue to restrict committed same-sex couples from enjoying
the full benefits and privileges available through marriage.
Although under the Domestic Partnership Act same-sex couples are
provided with a number of important rights, they still are
denied many benefits and privileges accorded to their similarly
situated heterosexual counterparts. Thus, the Act has failed to
bridge the inequality gap between committed same-sex couples and
married opposite-sex couples. Among the rights afforded to
married couples but denied to committed same-sex couples are the
right to
(1) a surname change without petitioning the
court, see Bacharach, supra, 344 N.J. Super.
at 135-36;
43
(2) ownership of property as tenants by the
entirety, N.J.S.A. 46:3-17.2, which would
allow for both automatic transfer of
ownership on death, N.J.S.A. 46:3-17.5, and
protection against severance and alienation,
N.J.S.A. 46:3-17.4;
(3) survivor benefits under New Jersey's
Workers' Compensation Act, N.J.S.A. 34:15-
13;
(4) back wages owed to a deceased spouse,
N.J.S.A. 34:11-4.5;
(5) compensation available to spouses,
children, and other relatives of homicide
victims under the Criminal Injuries
Compensation Act, N.J.S.A. 52:4B-10(c), -2;
(6) free tuition at any public institution
of higher education for surviving spouses
and children of certain members of the New
Jersey National Guard, N.J.S.A. 18A:62-25;
(7) tuition assistance for higher education
for spouses and children of volunteer
firefighters and first-aid responders,
N.J.S.A. 18A:71-78.1;
(8) tax deductions for spousal medical
expenses, N.J.S.A. 54A:3-3(a);
(9) an exemption from the realty transfer
fee for transfers between spouses, N.J.S.A.
46:15-10(j), -6.1; and
(10) the testimonial privilege given to the
spouse of an accused in a criminal action,
N.J.S.A. 2A:84A-17(2).
In addition, same-sex couples certified as domestic
partners receive fewer workplace protections than married
couples. For example, an employer is not required to provide
44
health insurance coverage for an employee's domestic partner.
N.J.S.A. 34:11A-20(b). Because the New Jersey Family Leave Act
does not include domestic partners within the definition of
family member, N.J.S.A. 34:11B-3(j), gay and lesbian employees
are not entitled to statutory leave for the purpose of caring
for an ill domestic partner, see N.J.S.A. 34:11B-4(a). The
disparity of rights and remedies also extends to the laws
governing wills. For instance, a bequest in a will by one
domestic partner to another is not automatically revoked after
termination of the partnership, as it would be for a divorced
couple, N.J.S.A. 3B:3-14. For that reason, the failure to
revise a will prior to death may result in an estranged domestic
partner receiving a bequest that a divorced spouse would not.
There is also no statutory provision permitting the payment of
an allowance for the support and maintenance of a surviving
domestic partner when a will contest is pending. See N.J.S.A.
3B:3-30 (stating that support and maintenance may be paid out of
decedent's estate to surviving spouse pending will contest).
The Domestic Partnership Act, notably, does not provide to
committed same-sex couples the family law protections available
to married couples. The Act provides no comparable presumption
of dual parentage to the non-biological parent of a child born
45
to a domestic partner, N.J.S.A. 9:17-43, -44. ^18 As a result,
domestic partners must rely on costly and time-consuming second-
parent adoption procedures. ^19 The Act also is silent on critical
issues relating to custody, visitation, and partner and child
support in the event a domestic partnership terminates. See,
e.g., N.J.S.A. 9:2-4 (providing custody rights to divorced
spouses). ^20 For example, the Act does not place any support
obligation on the non-biological partner-parent who does not
adopt a child born during a committed relationship.
Additionally, there is no statutory mechanism for post-
relationship support of a domestic partner. See N.J.S.A. 2A:34-
23 (providing for spousal support following filing of
matrimonial complaint). Contrary to the law that applies to
divorcing spouses, see N.J.S.A. 2A:34-23, -23.1, the Act states
that a court shall not be required to equitably distribute
18
Every statutory provision applicable to opposite-sex couples
might not be symmetrically applicable to same-sex couples. The
presumption of parentage would apply differently for same-sex
partners inasmuch as both partners could not be the biological
parents of the child. It appears that the presumption in such
circumstances would be that the non-biological partner consented
to the other partner either conceiving or giving birth to a
child.
19
But see In re Parentage of Child of Robinson, 383 N.J. Super.
165, 176 (Ch. Div. 2005) (declaring that same-sex partner was
entitled to statutory presumption of parenthood afforded to
husbands).
20
To obtain custody or visitation rights, the non-biological
parent must petition the courts to be recognized as a
psychological parent. See V.C., supra, 163 N.J. at 206, 230
(declaring former lesbian partner of biological mother of twins
"psychological parent," and awarding regular visitation).
46
property acquired by one or both partners during the domestic
partnership on termination of the partnership. N.J.S.A. 26:8A-
10(a)(3).
Significantly, the economic and financial inequities that
are borne by same-sex domestic partners are borne by their
children too. With fewer financial benefits and protections
available, those children are disadvantaged in a way that
children in married households are not. Children have the same
universal needs and wants, whether they are raised in a same-sex
or opposite-sex family, yet under the current system they are
treated differently.
Last, even though they are provided fewer benefits and
rights, same-sex couples are subject to more stringent
requirements to enter into a domestic partnership than opposite-
sex couples entering into marriage. The Act requires that those
seeking a domestic partnership share "a common residence;" prove
that they have assumed joint responsibility "for each other's
common welfare as evidenced by joint financial arrangements or
joint ownership of real or personal property;" "agree to be
jointly responsible for each other's basic living expenses
during the domestic partnership;" and show that they "have
chosen to share each other's lives in a committed relationship
of mutual caring." N.J.S.A. 26:8A-4(b)(1), (2), (6). Opposite-
47
sex couples do not have to clear those hurdles to obtain a
marriage license. See N.J.S.A. 37:1-1 to -12.3.
Thus, under our current laws, committed same-sex couples
and their children are not afforded the benefits and protections
available to similar heterosexual households.
C.
We now must assess the public need for denying the full
benefits and privileges that flow from marriage to committed
same-sex partners. At this point, we do not consider whether
committed same-sex couples should be allowed to marry, but only
whether those couples are entitled to the same rights and
benefits afforded to married heterosexual couples. Cast in that
light, the issue is not about the transformation of the
traditional definition of marriage, but about the unequal
dispensation of benefits and privileges to one of two similarly
situated classes of people. We therefore must determine whether
there is a public need to deny committed same-sex partners the
benefits and privileges available to heterosexual couples.
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
48
any legitimate public need for depriving same-sex couples of the
host of benefits and privileges catalogued in Section IV.B.
Perhaps that is because the public policy of this State is to
eliminate sexual orientation discrimination and support legally
sanctioned domestic partnerships. The Legislature has
designated sexual orientation, along with race, national origin,
and sex, as a protected category in the Law Against
Discrimination. N.J.S.A. 10:5-4, -12. Access to employment,
housing, credit, and business opportunities is a civil right
possessed by gays and lesbians. See ibid. Unequal treatment on
account of sexual orientation is forbidden by a number of
statutes in addition to the Law Against Discrimination.
The Legislature has recognized that the "rights and
benefits" provided in the Domestic Partnership Act are directly
related "to any reasonable conception of basic human dignity and
autonomy." N.J.S.A. 26:8A-2(d). 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." 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.
49
Disparate treatment of committed same-sex couples,
moreover, directly disadvantages their children. We fail to see
any legitimate governmental purpose in disallowing the child of
a deceased same-sex parent survivor benefits under the Workers'
Compensation Act or Criminal Injuries Compensation Act when
children of married parents would be entitled to such benefits.
Nor do we see the governmental purpose in not affording the
child of a same-sex parent, who is a volunteer firefighter or
first-aid responder, tuition assistance when the children of
married parents receive such assistance. There is something
distinctly unfair about the State recognizing the right of same-
sex couples to raise natural and adopted children and placing
foster children with those couples, and yet denying those
children the financial and social benefits and privileges
available to children in heterosexual households. Five of the
seven plaintiff couples are raising or have raised children.
There is no rational basis for visiting on those children a
flawed and unfair scheme directed at their parents. To the
extent that families are strengthened by encouraging monogamous
relationships, whether heterosexual or homosexual, we cannot
discern any public need that would justify the legal
disabilities that now afflict same-sex domestic partnerships.
There are more than 16,000 same-sex couples living in
committed relationships in towns and cities across this State.
50
Ruth Padawer, Gay Couples, At Long Last, Feel Acknowledged, The
Rec., Aug. 15, 2001, at 104. Gays and lesbians work in every
profession, business, and trade. They are educators,
architects, police officers, fire officials, doctors, lawyers,
electricians, and construction workers. They serve on township
boards, in civic organizations, and in church groups that
minister to the needy. They are mothers and fathers. They are
our neighbors, our co-workers, and our friends. In light of the
policies reflected in the statutory and decisional laws of this
State, we cannot find a legitimate public need for an unequal
legal scheme of benefits and privileges that disadvantages
committed same-sex couples.
D.
In arguing to uphold the system of disparate treatment that
disfavors same-sex couples, the State offers as a justification
the interest in uniformity with other states' laws. Unlike
other states, however, New Jersey forbids sexual orientation
discrimination, and not only allows same-sex couples to adopt
children, but also places foster children in their households.
Unlike New Jersey, other states have expressed open hostility
toward legally recognizing committed same-sex relationships. ^21
21
A number of states declare that they will not recognize
domestic relationships other than the union of a man and a
51
See Symposium, State Marriage Amendments: Developments,
Precedents, and Significance, 7 Fla. Coastal L. Rev. 403, 403
(2005) (noting that "[s]ince November 1998, nineteen states have
passed state marriage amendments . . . defining marriage as the
union of a man and a woman" and "[v]oters in thirteen states
ratified [those amendments] in the summer and fall of 2004 alone
and by overwhelming margins").
Today, only Connecticut and Vermont, through civil union,
and Massachusetts, through marriage, extend to committed same-
sex couples the full rights and benefits offered to married
heterosexual couples. See Conn. Gen. Stat. §§ 46b-38aa to -
38pp; Vt. Stat. Ann. tit. 15, §§ 1201-1207; Goodridge v. Dep't
of Pub. Health, 798 N.E.2d 941, 969 (Mass. 2003). A few
jurisdictions, such as New Jersey, offer some but not all of
those rights under domestic partnership schemes. ^22
The high courts of Vermont and Massachusetts have found
that the denial of the full benefits and protections of marriage
to committed same-sex couples violated their respective state
woman, and specifically prohibit any marriage, civil union,
domestic partnership, or other state sanctioned arrangement
between persons of the same sex. See, e.g., Ga. Const. art. I,
§ IV, ¶ I(b); Kan. Const. art. XV, § 16(b); Ky. Const. § 233a;
La. Const. art. XII, § 15; Mich. Const. art. I, § 25; Neb.
Const. art. I, § 29; N.D. Const. art. XI, § 28; Ohio Const. art.
XV, § 11; Utah Const. art. I, § 29; Alaska Stat. § 25.05.013;
Okla. Stat. tit. 51, § 255(A)(2); Tex. Fam. Code Ann. §
6.204(b); Va. Code Ann. § 20-45.3.
22
See Cal. Fam. Code §§ 297-299.6; Haw. Rev. Stat. §§ 572C-1 to
-7; Me. Rev. Stat. Ann. tit. 22, § 2710; N.J.S.A. 26:8A-1 to -
13; D.C. Code §§ 32-701 to -710.
52
constitutions. ^23 In Baker v. State, the Vermont Supreme Court
held that same-sex couples are entitled "to obtain the same
benefits and protections afforded by Vermont law to married
opposite-sex couples" under the Common Benefits Clause of the
Vermont Constitution, "its counterpart [to] the Equal Protection
Clause of the Fourteenth Amendment." 744 A.2d 864, 870, 886
(Vt. 1999). To remedy the constitutional violation, the Vermont
Supreme Court referred the matter to the state legislature. Id.
at 886. Afterwards, the Vermont Legislature enacted the
nation's first civil union law. See Vt. Stat. Ann. tit. 15, §§
1201-1207; see also Mark Strasser, Equal Protection at the
Crossroads: On Baker, Common Benefits, and Facial Neutrality, 42
Ariz. L. Rev. 935, 936 n.8 (2000).
23
The Hawaii Supreme Court was the first state high court to
rule that sexual orientation discrimination possibly violated
the equal protection rights of same-sex couples under a state
constitution. See Encyclopedia of Everyday Law, Gay Couples,
http://law.enotes.com/everyday-law-encyclopedia/gay-couples
(last visited Oct. 10, 2006). In Baehr, supra, the Hawaii
Supreme Court concluded that the marriage statute "discriminates
based on sex against the applicant couples in the exercise of
the civil right of marriage, thereby implicating the equal
protection clause of article I, section 5 of the Hawaii
Constitution" and remanded for an evidentiary hearing on whether
there was a compelling government interest furthered by the sex-
based classification. 852 P.2d at 57, 59. After the remand but
before the Hawaii Supreme Court had a chance to address the
constitutionality of the statute, Hawaii passed a constitutional
amendment stating that "[t]he legislature shall have the power
to reserve marriage to opposite-sex couples." Haw. Const. art.
I, § 23. The Hawaii Legislature enacted a statute conferring
certain rights and benefits on same-sex couples through a
reciprocal beneficiary relationship. Haw. Rev. Stat. §§ 572C-1
to -7.
53
In Goodridge, supra, the Supreme Judicial Court of
Massachusetts declared that Massachusetts, consistent with its
own constitution, could not "deny the protections, benefits, and
obligations conferred by civil marriage to two individuals of
the same sex who wish to marry." 798 N.E.2d at 948. Finding
that the State's ban on same-sex marriage did "not meet the
rational basis test for either due process or equal protection"
under the Massachusetts Constitution, the high court redefined
civil marriage to allow two persons of the same sex to marry.
Id. at 961, 969. Massachusetts is the only state in the nation
to legally recognize same-sex marriage. ^24 In contrast to Vermont
and Massachusetts, Connecticut did not act pursuant to a court
decree when it passed a civil union statute.
Vermont, Massachusetts, and Connecticut represent a
distinct minority view. Nevertheless, our current laws
concerning same-sex couples are more in line with the legal
constructs in those states than the majority of other states.
24
After rendering its decision, the Massachusetts Supreme
Judicial Court issued an opinion advising the state legislature
that a proposed bill prohibiting same-sex couples from entering
into marriage but allowing them to form civil unions would
violate the equal protection and due process requirements of the
Massachusetts Constitution and Declaration of Rights. Opinions
of the Justices to the Senate, 802 N.E.2d 565, 566, 572 (Mass.
2004). The court later upheld the validity of an initiative
petition, which if successful would amend the Massachusetts
Constitution to define "`marriage only as the union of one man
and one woman.'" Schulman v. Attorney General, 850 N.E.2d 505,
506-07 (Mass. 2006).
54
In protecting the rights of citizens of this State, we have
never slavishly followed the popular trends in other
jurisdictions, particularly when the majority approach is
incompatible with the unique interests, values, customs, and
concerns of our people. See New State Ice Co. v. Liebmann, 285
U.S. 262, 311, 52 S. Ct. 371, 386-87, 76 L. Ed. 747, 771 (1932)
(Brandeis, J., dissenting) ("It is one of the happy incidents of
the federal system that a single courageous State may, if its
citizens choose, serve as a laboratory; and try novel social and
economic experiments without risk to the rest of the country.").
Equality of treatment is a dominant theme of our laws and a
central guarantee of our State Constitution, and fitting for a
State with so diverse a population. The New Jersey Constitution
not only stands apart from other state constitutions, but also
"may be a source of `individual liberties more expansive than
those conferred by the Federal Constitution.'" State v.
Novembrino, 105 N.J. 95, 144-45 (1987) (quoting Pruneyard
Shopping Ctr. v. Robins, 447 U.S. 74, 81, 100 S. Ct. 2035, 2040,
64 L. Ed. 2d 741, 752 (1980)). Indeed, we have not hesitated to
find that our State Constitution provides our citizens with
greater rights to privacy, free speech, and equal protection
than those available under the United States Constitution. See,
e.g., State v. McAllister, 184 N.J. 17, 26, 32-33 (2005)
(concluding that New Jersey Constitution recognizes interest in
55
privacy of bank records, unlike Federal Constitution); N.J.
Coal. Against War in the Middle East v. J.M.B. Realty Corp., 138
N.J. 326, 332, 349, 374 (1994) (holding that free speech
protection of New Jersey Constitution requires, subject to
reasonable restrictions, privately-owned shopping centers to
permit speech on political and societal issues on premises,
unlike First Amendment of Federal Constitution), cert. denied,
516 U.S. 812, 116 S. Ct. 62, 133 L. Ed. 2d 25 (1995); Right to
Choose v. Byrne, 91 N.J. 287, 298, 310 (1982) (holding that
restriction of Medicaid funding to those abortions that are
"necessary to save the life of the mother" violates equal
protection guarantee of New Jersey Constitution although same
restriction does not violate United States Constitution).
Article I, Paragraph 1 protects not just the rights of the
majority, but also the rights of the disfavored and the
disadvantaged; they too are promised a fair opportunity "of
pursuing and obtaining safety and happiness." N.J. Const. art.
I, ¶ 1. Ultimately, we have the responsibility of ensuring that
every New Jersey citizen receives the full protection of our
State Constitution. In light of plaintiffs' strong interest in
rights and benefits comparable to those of married couples, the
State has failed to show a public need for disparate treatment.
We conclude that denying to committed same-sex couples the
financial and social benefits and privileges given to their
56
married heterosexual counterparts bears no substantial
relationship to a legitimate governmental purpose. We now hold
that under the equal protection guarantee of Article I,
Paragraph 1 of the New Jersey Constitution, committed same-sex
couples must be afforded on equal terms the same rights and
benefits enjoyed by married opposite-sex couples.
V.
The equal protection requirement of Article I, Paragraph 1
leaves the Legislature with two apparent options. The
Legislature could simply amend the marriage statutes to include
same-sex couples, or it could create a separate statutory
structure, such as a civil union, as Connecticut and Vermont
have done. See Conn. Gen. Stat. §§ 46b-38aa to -38pp; Vt. Stat.
Ann. tit. 15, §§ 1201-1207.
Plaintiffs argue that even equal social and financial
benefits would not make them whole unless they are allowed to
call their committed relationships by the name of marriage.
They maintain that a parallel legal structure, called by a name
other than marriage, which provides the social and financial
benefits they have sought, would be a separate-but-equal
classification that offends Article I, Paragraph 1. From
plaintiffs' standpoint, the title of marriage is an intangible
right, without which they are consigned to second-class
57
citizenship. Plaintiffs seek not just legal standing, but also
social acceptance, which in their view is the last step toward
true equality. Conversely, the State asserts that it has a
substantial interest in preserving the historically and almost
universally accepted definition of marriage as the union of a
man and a woman. For the State, if the age-old definition of
marriage is to be discarded, such change must come from the
crucible of the democratic process. The State submits that
plaintiffs seek by judicial decree "a fundamental change in the
meaning of marriage itself," when "the power to define marriage
rests with the Legislature, the branch of government best
equipped to express the judgment of the people on controversial
social questions."
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 committed same-
sex couples.
58
We do not know how the Legislature will proceed to remedy
the equal protection disparities that currently exist in our
statutory scheme. The Legislature is free to break from the
historical traditions that have limited the definition of
marriage to heterosexual couples or to frame a civil union style
structure, as Vermont and Connecticut have done. Whatever path
the Legislature takes, our starting point must be to presume the
constitutionality of legislation. Caviglia, supra, 178 N.J. at
477 ("A legislative enactment is presumed to be constitutional
and the burden is on those challenging the legislation to show
that it lacks a rational basis."). We will give, as we must,
deference to any legislative enactment unless it is unmistakably
shown to run afoul of the Constitution. Hamilton Amusement Ctr.
v. Verniero, 156 N.J. 254, 285 (1998) (stating that presumption
of statute's validity "can be rebutted only upon a showing that
the statute's repugnancy to the Constitution is clear beyond a
reasonable doubt" (internal quotation marks omitted)), cert.
denied, 527 U.S. 1021, 119 S. Ct. 2365, 144 L. Ed. 2d 770
(1999). Because this State has no experience with a civil union
construct that provides equal rights and benefits to same-sex
couples, we will not speculate that identical schemes called by
different names would create a distinction that would offend
Article I, Paragraph 1. We will not presume that a difference
in name alone is of constitutional magnitude.
59
"A legislature must have substantial latitude to establish
classifications," and therefore determining "what is `different'
and what is `the same'" ordinarily is a matter of legislative
discretion. Plyler v. Doe, 457 U.S. 202, 216, 102 S. Ct. 2382,
2394, 72 L. Ed. 2d 786, 798-99 (1982); see also Greenberg,
supra, 99 N.J. at 577 ("Proper classification for equal
protection purposes is not a precise science. . . . As long as
the classifications do not discriminate arbitrarily between
persons who are similarly situated, the matter is one of
legislative prerogative."). ^25 If the Legislature creates a
separate statutory structure for same-sex couples by a name
other than marriage, it probably will state its purpose and
reasons for enacting such legislation. To be clear, it is not
our role to suggest whether the Legislature should either amend
the marriage statutes to include same-sex couples or enact a
civil union scheme. Our role here is limited to constitutional
adjudication, and therefore we must steer clear of the swift and
treacherous currents of social policy when we have no
constitutional compass with which to navigate.
Despite the extraordinary remedy crafted in this opinion
extending equal rights to same-sex couples, our dissenting
25
We note that what we have done and whatever the Legislature
may do will not alter federal law, which only confers marriage
rights and privileges to opposite-sex married couples. See 1
U.S.C.A. § 7 (defining marriage, under Federal Defense of
Marriage Act, as "legal union between one man and one woman").
60
colleagues are willing to part ways from traditional principles
of judicial restraint to reach a constitutional issue that is
not before us. Before the Legislature has been given the
opportunity to act, the dissenters are willing to substitute
their judicial definition of marriage for the statutory
definition, for the definition that has reigned for centuries,
for the definition that is accepted in forty-nine states and in
the vast majority of countries in the world. Although we do not
know whether the Legislature will choose the option of a civil
union statute, the dissenters presume in advance that our
legislators cannot give any reason to justify retaining the
definition of marriage solely for opposite sex couples. A
proper respect for a coordinate branch of government counsels
that we defer until it has spoken. Unlike our colleagues who
are prepared immediately to overthrow the long established
definition of marriage, we believe that our democratically
elected representatives should be given a chance to address the
issue under the constitutional mandate set forth in this
opinion.
We cannot escape the reality that the shared societal
meaning of marriage -- passed down through the common law into
our statutory law -- has always been the union of a man and a
woman. To alter that meaning would render a profound change in
the public consciousness of a social institution of ancient
61
origin. When such change is not compelled by a constitutional
imperative, it must come about through civil dialogue and
reasoned discourse, and the considered judgment of the people in
whom we place ultimate trust in our republican form of
government. Whether an issue with such far-reaching social
implications as how to define marriage falls within the judicial
or the democratic realm, to many, is debatable. Some may think
that this Court should settle the matter, insulating it from
public discussion and the political process. Nevertheless, a
court must discern not only the limits of its own authority, but
also when to exercise forbearance, recognizing that the
legitimacy of its decisions rests on reason, not power. We will
not short-circuit the democratic process from running its
course.
New language is developing to describe new social and
familial relationships, and in time will find its place in our
common vocabulary. Through a better understanding of those new
relationships and acceptance forged in the democratic process,
rather than by judicial fiat, the proper labels will take hold.
However the Legislature may act, same-sex couples will be free
to call their relationships by the name they choose and to
sanctify their relationships in religious ceremonies in houses
of worship. See Bacharach, supra, 344 N.J. Super. at 135
(noting that state laws and policies are not offended if same-
62
sex couples choose to "exchange rings, proclaim devotion in a
public or private ceremony, [or] call their relationship a
marriage"); Lynn D. Wardle, Is Marriage Obsolete?, 10 Mich. J.
Gender & L. 189, 191-92 ("What is deemed a `marriage' for
purposes of law may not be exactly the same as what is deemed
marriage for other purposes and in other settings [such as]
religious doctrines . . . .").
The institution of marriage reflects society's changing
social mores and values. In the last two centuries, that
institution has undergone a great transformation, much of it
through legislative action. The Legislature broke the grip of
the dead hand of the past and repealed the common law decisions
that denied a married woman a legal identity separate from that
of her husband. ^26 Through the passage of statutory laws, the
Legislature gave women the freedom to own property, to contract,
to incur debt, and to sue. ^27 The Legislature has played a major
role, along with the courts, in ushering marriage into the
26
See Newman v. Chase, 70 N.J. 254, 260 n.4 (1976) (noting that
prior to Married Women's Property Act of 1852 "the then
prevailing rule" entitled husband "to the possession and
enjoyment of his wife's real estate during their joint lives");
Nancy F. Cott, Public Vows: A History of Marriage and the Nation
12 (2000) (explaining that marriage resulted in husband becoming
"the one full citizen in the household"); Hendrick Hartog, Man
and Wife in America: A History 99 (2000) (stating that "merger"
of wife's identity led to wife's loss of control over property
and over her contractual capacity).
27
See, e.g., L. 1906, c. 248 (May 17, 1906) (affording married
women right to sue); L. 1852, c. 171 (Mar. 25, 1852) (providing
married women property rights).
63
modern era. See, e.g., Reva B. Siegal, Symposium, The
Modernization of Marital Status Law: Adjudicating Wives' Rights
to Earnings 1860-1930, 82 Geo. L.J. 2127, 2148-49 (1994)
(discussing courts' role in reformulation of married women's
rights).
Our decision today significantly advances the civil rights
of gays and lesbians. We have decided that our State
Constitution guarantees that every statutory right and benefit
conferred to heterosexual couples through civil marriage must be
made available to committed same-sex couples. Now the
Legislature must determine whether to alter the long accepted
definition of marriage. The great engine for social change in
this country has always been the democratic process. Although
courts can ensure equal treatment, they cannot guarantee social
acceptance, which must come through the evolving ethos of a
maturing society. Plaintiffs' quest does not end here. Their
next appeal must be to their fellow citizens whose voices are
heard through their popularly elected representatives.
VI.
To comply with the equal protection guarantee of Article I,
Paragraph 1 of the New Jersey Constitution, the State must
provide to committed same-sex couples, on equal terms, the full
64
rights and benefits enjoyed by heterosexual married couples.
The State can fulfill that constitutional requirement in one of
two ways. It can either amend the marriage statutes to include
same-sex couples or enact a parallel statutory structure by
another name, in which same-sex couples would not only enjoy the
rights and benefits, but also bear the burdens and obligations
of civil marriage. If the State proceeds with a parallel
scheme, it cannot make entry into a same-sex civil union any
more difficult than it is for heterosexual couples to enter the
state of marriage. ^28 It may, however, regulate that scheme
similarly to marriage and, for instance, restrict civil unions
based on age and consanguinity and prohibit polygamous
relationships.
The constitutional relief that we give to plaintiffs cannot
be effectuated immediately or by this Court alone. The
implementation of this constitutional mandate will require the
cooperation of the Legislature. To bring the State into
compliance with Article I, Paragraph 1 so that plaintiffs can
exercise their full constitutional rights, the Legislature must
28
We note, for example, that the Domestic Partnership Act
requires, as a condition to the establishment of a domestic
partnership, that the partners have "a common residence" and be
"otherwise jointly responsible for each other's common welfare."
N.J.S.A. 26:8A-4(b)(1). Such a condition is not placed on
heterosexual couples who marry and thus could not be imposed on
same-sex couples who enter into a civil union.
65
either amend the marriage statutes or enact an appropriate
statutory structure within 180 days of the date of this
decision.
For the reasons explained, we affirm in part and modify in part
the judgment of the Appellate Division.
JUSTICES LaVECCHIA, WALLACE, and RIVERA-SOTO join in
JUSTICE ALBIN's opinion. CHIEF JUSTICE PORITZ filed a separate
opinion concurring in part and dissenting in part in which
JUSTICES LONG and ZAZZALI join.
66
SUPREME COURT OF NEW JERSEY
A-68 September Term 2005
MARK LEWIS and DENNIS
WINSLOW; SAUNDRA HEATH and
CLARITA ALICIA TOBY; CRAIG
HUTCHISON and CHRIS LODEWYKS;
MAUREEN KILIAN and CINDY
MENEGHIN; SARAH and SUYIN
LAEL; MARILYN MANEELY and
DIANE MARINI; and KAREN and
MARCYE NICHOLSON-MCFADDEN,
Plaintiffs-Appellants,
v.
GWENDOLYN L. HARRIS, in her
official capacity as
Commissioner of the New
Jersey Department of Human
Services; CLIFTON R. LACY, in
his official capacity as the
Commissioner of the New
Jersey Department of Health
and Senior Services; and
JOSEPH KOMOSINSKI, in his
official capacity as Acting
State Registrar of Vital
Statistics of the New Jersey
State Department of Health
and Senior Services,
Defendants-Respondents.
CHIEF JUSTICE PORITZ, concurring and dissenting.
I concur with the determination of the majority that
"denying the rights and benefits to committed same-sex couples
that are statutorily given to their heterosexual counterparts
violates the equal protection guarantee of Article I, Paragraph
1[,]" of the New Jersey Constitution. ^1 Ante at ___ (slip op. at
6). I can find no principled basis, however, on which to
distinguish those rights and benefits from the right to the
title of marriage, and therefore dissent from the majority's
opinion insofar as it declines to recognize that right among all
of the other rights and benefits that will be available to same-
sex couples in the future.
I dissent also from the majority's conclusion that there is
no fundamental due process right to same-sex marriage
"encompassed within the concept of liberty guaranteed by Article
I, Paragraph 1." Ante at ___ (slip op. at 5-6). The majority
acknowledges, as it must, that there is a universally accepted
fundamental right to marriage "deeply rooted" in the
1
Article I, Paragraph 1, states:
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.
[N.J. Const. art. I, ¶ 1.]
This language constitutes our State equivalent of the Due
Process and Equal Protection Clauses of the Federal
Constitution.
2
"traditions, history, and conscience of the people." Ante at
___ (slip op. at 6). Yet, by asking whether there is a right to
same-sex marriage, the Court avoids the more difficult questions
of personal dignity and autonomy raised by this case. Under the
majority opinion, it appears that persons who exercise their
individual liberty interest to choose same-sex partners can be
denied the fundamental right to participate in a state-
sanctioned civil marriage. I would hold that plaintiffs' due
process rights are violated when the State so burdens their
liberty interests.
I.
The majority has provided the procedural and factual
context for the issues the Court decides today. I will not
repeat that information except as it is directly relevant to the
analytical framework that supports this dissent. In that vein,
then, some initial observations are appropriate.
Plaintiffs have not sought relief in the form provided by
the Court -- they have asked, simply, to be married. To be
sure, they have claimed the specific rights and benefits that
are available to all married couples, and in support of their
claim, they have explained in some detail how the withholding of
those benefits has measurably affected them and their children.
As the majority points out, same-sex couples have been forced to
3
cross-adopt their partners' children, have paid higher health
insurance premiums than those paid by heterosexual married
couples, and have been denied family leave-time even though,
like heterosexual couples, they have children who need care.
Ante at ___ (slip op. at 11). Further, those burdens represent
only a few of the many imposed on same-sex couples because of
their status, because they are unable to be civilly married.
The majority addresses those specific concerns in its opinion.
But there is another dimension to the relief plaintiffs'
seek. In their presentation to the Court, they speak of the
deep and symbolic significance to them of the institution of
marriage. They ask to participate, not simply in the tangible
benefits that civil marriage provides -- although certainly
those benefits are of enormous importance -- but in the
intangible benefits that flow from being civilly married. Chief
Justice Marshall, writing for the Massachusetts Supreme Judicial
Court, has conveyed some sense of what that means:
Marriage also bestows enormous private and
social advantages on those who choose to
marry. Civil marriage is at once a deeply
personal commitment to another human being
and a highly public celebration of the
ideals of mutuality, companionship,
intimacy, fidelity, and family. "It is an
association that promotes a way of life, not
causes; a harmony in living, not political
faiths; a bilateral loyalty, not commercial
4
or social projects." Griswold v.
Connecticut, 381 U.S. 479, 486, 85 S. Ct.
1678, 14 L. Ed. 2d 510 (1965). Because it
fulfils yearnings for security, safe haven,
and connection that express our common
humanity, civil marriage is an esteemed
institution, and the decision whether and
whom to marry is among life's momentous acts
of self-definition.
[Goodridge v. Dep't. of Pub. Health, 798
N.E. 2d 941, 954-55 (Mass. 2003).]
Plaintiffs are no less eloquent. They have presented their
sense of the meaning of marriage in affidavits submitted to the
Court:
In our relationship, Saundra and I have the
same level of love and commitment as our
married friends. But being able to proudly
say that we are married is important to us.
Marriage is the ultimate expression of love,
commitment, and honor that you can give to
another human being.
****
Alicia and I live our life together as if it
were a marriage. I am proud that Alicia and
I have the courage and the values to take on
the responsibility to love and cherish and
provide for each other. When I am asked
about my relationship, I want my words to
match my life, so I want to say I am married
and know that my relationship with Alicia is
immediately understood, and after that
nothing more needs be explained.
****
I've seen that there is a significant
respect that comes with the declaration
5
"[w]e're married." Society endows the
institution of marriage with not only a host
of rights and responsibilities, but with a
significant respect for the relationship of
the married couple. When you say that you
are married, others know immediately that
you have taken steps to create something
special. . . . The word "married" gives you
automatic membership in a vast club of
people whose values are clarified by their
choice of marriage. With a marriage,
everyone can instantly relate to you and
your relationship. They don't have to
wonder what kind of relationship it is or
how to refer to it or how much to respect
it.
****
My parents long to talk about their three
married children, all with spouses, because
they are proud and happy that we are all in
committed relationships. They want to be
able to use the common language of marriage
to describe each of their children's lives.
Instead they have to use a different
language, which discounts and cheapens their
family as well as mine[, because I have a
same-sex partner and cannot be married].
By those individual and personal statements, plaintiffs express
a deep yearning for inclusion, for participation, for the right
to marry in the deepest sense of that word. When we say that
the Legislature cannot deny the tangible benefits of marriage to
same-sex couples, but then suggest that "a separate statutory
scheme, which uses a title other than marriage," is
presumptively constitutional, ante at ___ (slip op. at 7), we
6
demean plaintiffs' claim. What we "name" things matters,
language matters.
In her book Making all the Difference: Inclusion,
Exclusion, and American Law, Martha Minnow discusses "labels"
and the way they are used:
Human beings use labels to describe and sort
their perceptions of the world. The
particular labels often chosen in American
culture can carry social and moral
consequences while burying the choices and
responsibility for those consequences.
....
Language and labels play a special role in
the perpetuation of prejudice about
differences.
[Martha Minnow, Making all the Difference:
Inclusion, Exclusion, and American Law 4, 6
(1990).]
We must not underestimate the power of language. Labels set
people apart as surely as physical separation on a bus or in
school facilities. Labels are used to perpetuate prejudice
about differences that, in this case, are embedded in the law.
By excluding same-sex couples from civil marriage, the State
declares that it is legitimate to differentiate between their
commitments and the commitments of heterosexual couples.
Ultimately, the message is that what same-sex couples have is
7
not as important or as significant as "real" marriage, that such
lesser relationships cannot have the name of marriage. ^2
II.
A.
Beginning with Robinson v. Cahill, this Court has
repeatedly rejected a "mechanical" framework for due process and
equal protection analyses under Article I, Paragraph 1 of our
State Constitution. 62 N.J. 473, 491-92 (1973). See Right to
Choose v. Byrne, 91 N.J. 287, 308-09 (1982); Greenberg v.
Kimmelman 99 N.J. 552, 567-68 (1985); Planned Parenthood v.
Farmer, 165 N.J. 609, 629-30 (2000); Sojourner A. v. N.J. Dept.
of Human Serv., 177 N.J. 318, 332-33 (2003). Chief Justice
Weintraub described the process by which the courts should
conduct an Article I review:
[A] court must weigh the nature of the
restraint or the denial against the apparent
public justification, and decide whether the
State action is arbitrary. In that process,
2
Professor Michael Wald, in Same-Sex Couple Marriage: A
Family Policy Perspective similarly states that "if a State
passed a civil union statute for same-sex couples that
paralleled marriage, it would be sending a message that these
unions were in some way second class units unworthy of the term
'marriage'[,] . . . that these are less important family
relationships." 9 Va. J. Soc. Pol'y. & L. 291, 338 (2001).
8
if the circumstances sensibly so require,
the court may call upon the State to
demonstrate the existence of a sufficient
public need for the restraint or the denial.
[Robinson, supra, 62 N.J. at 492 (citation
omitted).]
Later, the Court "reaffirmed that approach [because] it provided
a . . . flexible analytical framework for the evaluation of
equal protection and due process claims." Sojourner A., supra,
177 N.J. at 333. There, we restated the nature of the weighing
process:
In keeping with Chief Justice Weintraub's
direction, we "consider the nature of
the affected right, the extent to which
the governmental restriction intrudes
upon it, and the public need for the
restriction." [In so doing] we are able
to examine each claim on a continuum that
reflects the nature of the burdened right
and the importance of the governmental
restriction.
[Ibid. (quoting Planned Parenthood, supra,
165 N.J. at 630).]
The majority begins its discussion, as it should,
with the first prong of the test, the nature of the affected
right. Ante at ___ (slip op. at 37). The inquiry is grounded
in substantive due process concerns that include whether the
affected right is so basic to the liberty interests found in
9
Article I, Paragraph 1, that it is "fundamental." ^3 When we ask
the question whether there is a fundamental right to same-sex
marriage "rooted in the traditions, and collective conscience of
our people," ante at ___ (slip op. at 22), we suggest the
answer, and it is "no". ^4 That is because the liberty interest
has been framed "so narrowly as to make inevitable the
conclusion that the claimed right could not be fundamental
because historically it has been denied to those who now seek to
exercise it." Hernandez v. Robles, Nos. 86-89, 2006 N.Y. LEXIS
1836, at *56-57, 2006 N.Y. slip op. 5239, at *14 (Kaye, C.J.,
dissenting from majority decision upholding law limiting
marriage to heterosexual couples). When we ask, however,
whether there is a fundamental right to marriage rooted in the
3
Professor Laurence Tribe has described in metaphoric
terms, the relationship between due process and equal protection
analyses. Lawrence v. Texas: The "Fundamental Right" That Dare
Not Speak Its Name, 117 Harv. L. Rev. 1893, 1897-98. His
understanding is especially apt in respect of New Jersey's test.
He finds in judges "conclusions" a "narrative in which due
process and equal protection, far from having separate missions
and entailing different inquiries, are profoundly interlocked in
a legal double helix . . . [representing] a single, unfolding
tale of equal liberty and increasingly universal dignity."
Ibid. This case is a paradigm for the interlocking concepts
that support both the due process and the equal protection
inquiry.
4
The majority understands that "[h]ow the right is defined
may dictate whether it is deemed fundamental." Ante at ___
(slip op. at 24). By claiming that the broad right to marriage
is "undifferentiated" and "abstract," and by focusing on the
narrow question of the right to same-sex marriage, the Court
thereby removes the right from the traditional concept of
marriage. Ante at ___ (slip op. at 24-25).
10
traditions, history and conscience of our people, there is
universal agreement that the answer is "yes." See Loving v.
Virginia, 388 U.S. 1, 87 S. Ct. 1817, 18 L. Ed. 2d 1010 (1967);
Turner v. Safley; 482 U.S. 78, 107 S. Ct. 2254, 96 L. Ed. 2d 64
(1987); Zablocki v. Redhail, 434 U.S. 374, 98 S. Ct. 673, 54 L.
Ed. 2d 618 (1977); see also J.B. v. M.B., 170 N.J. 9, 23-24
(2001) (noting that the right to marry is a fundamental right
protected by both the federal and state constitutions); In re
Baby M., 109 N.J. 396, 447 (1988) (same); Greenberg v.
Kimmelman, 99 N.J. 552, 571 (1985) (same). What same-sex
couples seek is admission to that most valuable institution,
what they seek is the liberty to choose, as a matter of personal
autonomy, to commit to another person, a same-sex person, in a
civil marriage. Of course there is no history or tradition
including same-sex couples; if there were, there would have been
no need to bring this case to the courts. As Judge Collester
points out in his dissent below, "[t]he argument is circular:
plaintiffs cannot marry because by definition they cannot
marry." Lewis v. Harris, 378 N.J. Super. 168, 204 (App. Div.
2005) (Collester, J., dissenting); see Hernandez v. Robles, Nos.
86-89, 2006 N.Y. LEXIS 1836 at *63-64, 2006 N.Y. slip op. 5239,
at *23-24 (Kaye, C.J., dissenting) ("It is no answer that same-
sex couples can be excluded from marriage because `marriage,' by
definition, does not include them. In the end, `an argument
11
that marriage is heterosexual because it `just is' amounts to
circular reasoning.'" (quoting Halpern v. Attorney Gen. of Can.,
65 O.R.3d 161, 181 (2003))).
I also agree with Judge Collester that Loving should have
put to rest the notion that fundamental rights can be found only
in the historical traditions and conscience of the people. See
id. at 205. Had the United States Supreme Court followed the
traditions of the people of Virginia, the Court would have
sustained the law that barred marriage between members of racial
minorities and caucasians. The Court nevertheless found that
the Lovings, an interracial couple, could not be deprived of
"the freedom to marry [that] has long been recognized as one of
the vital personal rights essential to the orderly pursuit of
happiness by free men." Loving, supra, 388 U.S. at 12, 87 S.
Ct. at 1824, 18 L. Ed. at 1018. Most telling, the Court did not
frame the issue as a right to interracial marriage but, simply,
as a right to marry sought by individuals who had traditionally
been denied that right. Loving teaches that the fundamental
right to marry no more can be limited to same-race couples than
it can be limited to those who choose a committed relationship
with persons of the opposite sex. By imposing that limitation
on same-sex couples, the majority denies them access to one of
our most cherished institutions simply because they are
homosexuals.
12
Lawrence v. Texas, 539 U.S. 558, 123 S. Ct. 2472, 156 L.
Ed. 2d 508 (2003), in overruling Bowers v. Hardwick, 478 U.S.
186, 106 S. Ct. 2841, 92 L. Ed. 2d 140 (1986), made a different
but equally powerful point. In Bowers, the Court had sustained
a Georgia statute that made sodomy a crime. 478 U.S. at 189,
106 S. Ct. at 2843, 93 L. Ed. 2d at 145. When it rejected the
Bowers holding seventeen years later, the Court stated bluntly
that "Bowers was not correct when it was decided, and it is not
correct today." Lawrence, supra, 539 U.S. at 578, 123 S. Ct. at
2484, 156 L. Ed. 2d at 525. Justice Kennedy explained further
that "times can blind us to certain truths and later generations
can see that laws once thought necessary and proper in fact
serve only to oppress. As the Constitution endures, persons in
every generation can invoke its principles in their own search
for greater freedom." Id. at 579, 123 S. Ct. at 2484, 156 L.
Ed. 2d at 526.
We are told that when the Justices who decided Brown v.
Board of Education, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873
(1954), finally rejected legal segregation in public schools,
they were deeply conflicted over the issue. Michael J. Klarman,
Brown and Lawrence (and Goodridge), 104 Mich. L. Rev. 431, 433
(2005). "The sources of constitutional interpretation to which
they ordinarily looked for guidance -- text, original
understanding, precedent, and custom -- indicated that school
13
segregation was permissible. By contrast, most of the Justices
privately condemned segregation, which Justice Hugo Black called
`Hitler's creed.' Their quandary was how to reconcile their
legal and moral views." Ibid. (footnote omitted). Today, it is
difficult to believe that "Brown was a hard case for the
Justices." Ibid.
Without analysis, our Court turns to history and tradition
and finds that marriage has never been available to same-sex
couples. That may be so -- but the Court has not asked whether
the limitation in our marriage laws, "once thought necessary and
proper in fact serve[s] only to oppress." I would hold that
plaintiffs have a liberty interest in civil marriage that cannot
be withheld by the State. Framed differently, the right that is
burdened under the first prong of the Court's equal
protection/due process test is a right of constitutional
dimension.
B.
Although the majority rejects the argument I find
compelling, it does grant a form of relief to plaintiffs on
equal protection grounds, finding a source for plaintiffs'
interest outside of the Constitution. Ante at ___ (slip op. at
43, 58-59). Having previously separated the right to the
tangible "benefits and privileges" of marriage from the right to
14
the "name of marriage," and having dismissed the right to the
name of marriage for same-sex couples because it is not part of
our history or traditions, the majority finds the right to the
tangible benefits of marriage in enactments and decisions of the
legislative, executive, and judicial branches protecting gays
and lesbians from discrimination, allowing adoption by same-sex
partners, and conferring some of the benefits of marriage on
domestic partners. Ante at ___ (slip op. at 28-29, 37-43, 49).
The enactments and decisions relied on by the majority as a
source of same-sex couples' interest in equality of treatment
are belied by the very law at issue in this case that confines
the right to marry to heterosexual couples. Moreover, as the
majority painstakingly demonstrates, the Domestic Partnership
Act, N.J.S.A. 26:8A-1 to -13, does not provide many of the
tangible benefits that accrue automatically when heterosexual
couples marry. Ante at ___ (slip op. at 43-48). New Jersey's
statutes reflect both abhorrence of sexual orientation
discrimination and a desire to prevent same-sex couples from
having access to one of society's most cherished institutions,
the institution of marriage. Plaintiffs' interests arise out of
constitutional principles that are integral to the liberty of a
free people and not out of the legislative provisions described
by the majority. In any case, it is clear that civil marriage
and all of the benefits it represents is absolutely denied same-
15
sex couples, and, therefore, that same-sex couples' fundamental
rights are not simply burdened but are denied altogether (the
second prong of the Court's test).
Finally, the majority turns to the third prong -- whether
there is a public need to deprive same-sex couples of the
tangible benefits and privileges available to heterosexual
couples. Ante at ___ (slip op. at 48). Because the State has
argued only that historically marriage has been limited to
opposite-sex couples, and because the majority has accepted the
State's position and declined to find that same-sex couples have
a liberty interest in the choice to marry, the majority is able
to conclude that no interest has been advanced by the State to
support denying the rights and benefits of marriage to same-sex
couples. Ante at ___ (slip op. at 48-49, 51). Without any
state interest to justify the denial of tangible benefits, the
Court finds that the Legislature must provide those benefits to
same-sex couples. Ante at ____ (slip op. at 48-51). I
certainly agree with that conclusion but would take a different
route to get there.
Although the State has not made the argument, I note that
the Appellate Division, and various amici curiae, have claimed
the "promotion of procreation and creating the optimal
environment for raising children as justifications for the
limitation of marriage to members of the opposite sex." Lewis,
16
supra, 378 N.J. Super. at 185 n.2. That claim retains little
viability today. Recent social science studies inform us that
"same-sex couples increasingly form the core of families in
which children are conceived, born, and raised." Gregory N.
Herek, Legal Recognition of Same-Sex Relationships in the United
States: A Social Science Perspective, 61 Am. Psychol. 607, 611
(2006). It is not surprising, given that data, that the State
does not advance a "promotion of procreation" position to
support limiting marriage to heterosexuals. Further,
"[e]mpirical studies comparing children raised by sexual
minority parents with those raised by otherwise comparable
heterosexual parents have not found reliable disparities in
mental health or social adjustment," id. at 613, suggesting that
the "optimal environment" position is equally weak. Without
such arguments, the State is left with the "but that is the way
it has always been" circular reasoning discussed supra at ___
(slip op. at 11-12).
C.
Perhaps the political branches will right the wrong
presented in this case by amending the marriage statutes to
recognize fully the fundamental right of same-sex couples to
marry. That possibility does not relieve this Court of its
responsibility to decide constitutional questions, no matter how
difficult. Deference to the Legislature is a cardinal principle
17
of our law except in those cases requiring the Court to claim
for the people the values found in our Constitution. Alexander
Hamilton, in his essay, Judges as Guardians of the Constitution,
The Federalist No. 78, (Benjamin Fletcher Wright ed., 1961)
spoke of the role of the courts and of judicial independence.
He argued that "the courts of justice are . . . the bulwarks of
a limited Constitution against legislative encroachments"
because he believed that the judicial branch was the only branch
capable of opposing "oppressions [by the elected branches] of
the minor party in the community." Id. at 494. Our role is to
stand as a bulwark of a constitution that limits the power of
government to oppress minorities.
The question of access to civil marriage by same-sex
couples "is not a matter of social policy but of constitutional
interpretation." Opinions of the Justices to the Senate, 802
N.E.2d 565, 569 (Mass. 2004). It is a question for this Court
to decide.
III.
In his essay Three Questions for America, Professor Ronald
Dworkin talks about the alternative of recognizing "a special
`civil union' status" that is not "marriage but nevertheless
provides many of the legal and material benefits of marriage."
N.Y. Rev. Books, Sept. 21, 2006 at 24, 30. He explains:
18
Such a step reduces the discrimination, but
falls far short of eliminating it. The
institution of marriage is unique: it is a
distinct mode of association and commitment
with long traditions of historical, social,
and personal meaning. It means something
slightly different to each couple, no doubt.
For some it is primarily a union that
sanctifies sex, for others a social status,
for still others a confirmation of the most
profound possible commitment. But each of
these meanings depends on associations that
have been attached to the institution by
centuries of experience. We can no more now
create an alternate mode of commitment
carrying a parallel intensity of meaning
than we can now create a substitute for
poetry or for love. The status of marriage
is therefore a social resource of
irreplaceable value to those to whom it is
offered: it enables two people together to
create value in their lives that they could
not create if that institution had never
existed. We know that people of the same
sex often love one another with the same
passion as people of different sexes do and
that they want as much as heterosexuals to
have the benefits and experience of the
married state. If we allow a heterosexual
couple access to that wonderful resource but
deny it to a homosexual couple, we make it
possible for one pair but not the other to
realize what they both believe to be an
important value in their lives.
[Ibid.]
On this day, the majority parses plaintiffs' rights to hold
that plaintiffs must have access to the tangible benefits of
state-sanctioned heterosexual marriage. I would extend the
Court's mandate to require that same-sex couples have access to
19
the "status" of marriage and all that the status of marriage
entails.
Justices Long and Zazzali join in this opinion.
20
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