No Easy Answers


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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