A Loss, in New Jersey, for Proponents of Same-Sex Marriage:
A Window into New Claims by Opponents about the Government's Interest In Marriage

By JOANNA GROSSMAN AND LINDA MCCLAIN
Tuesday, Jun. 28, 2005

These new claims may well pop up in a number of other ongoing and future battles over the same-sex marriage issue. (Similar cases are pending in Washington, California, and New York.)

Moreover, these claims will also be tested, once again, in this case - for plaintiffs have vowed to appeal to New Jersey's Supreme Court.

Lewis v. Harris: The Trial Court, Appeals Court, and Future Supreme Court Rulings

The appeals court in this case upheld a lower court ruling (a ruling that Joanna Grossman has written about in a previous column). That ruling had held that neither the due process nor the equal protection provisions of New Jersey's constitution compelled the State of New Jersey to allow same-sex couples to marry. The appeals court - over a dissent - agreed. (The 2-1 decision garnered three separate opinions -- - one for the court, one in concurrence, and one in dissent.)

On further appeal, New Jersey's highest court may follow Massachusetts' example in Goodridge v. Department of Public Health. There, the state's Supreme Judicial Court held it unconstitutional for the state to ban same-sex marriage. (As a result, since May 17, 2004, same-sex marriages have been occurring in Massachusetts.) Or, of course, it may do just the opposite.

But whether or not the ruling stands, the opinions it produced are telling.

A Comparison of Lewis and Goodridge: The Role of Religion

Judge Skillman wrote the opinion for the court in Lewis, holding in favor of same-sex marriage opponents. In that opinion, the court emphatically rejected the blueprint set forth in Goodridge for considering the constitutionality of excluding same-sex couples from civil marriage. The court rejected, too, the reasoning of Baker v. State, a 1999 decision of the Vermont Supreme Court that led to the establishment of same-sex civil unions in that state.

Why did the court reject Goodridge's logic?

One answer is that the majority opinion in Goodridge carefully explained that even though many people hold deep religious convictions about marriage, the court's proper focus was on civil marriage -- an institution created by the state. It thus separated the two dimensions of marriage. In contrast, the Lewis court repeatedly blurred the religious and legal dimensions of marriage.

Here's a blatant example of the blurring: To support his conclusion that New Jersey's constitutional history and tradition offered no support for recognition same-sex marriage, Judge Skillman appealed to the "religious" foundations of the institution of marriage. In particular, he observed that "our leading religions view marriage as a union of men and women recognized by God." He also noted with approval the State's argument that limiting marriage to heterosexual couples was grounded on our nation's "religious and social values."

The New Jersey court's opinion also cites language from an out-of-state 1971 case, Baker v. Nelson, stating that "the institution of marriage as a union of man and woman, uniquely involving the procreation and rearing of children within a family, is as old as the book of Genesis." (This case rejected a challenge to Minnesota's marriage laws).

This mingling of the civil and religious dimensions of marriage surely renders the court's opinion vulnerable to reversal. It's true that many in society find the religious and secular aspects of marriage indistinguishable. But from the point of view of the law, the practice licensed and authorized by states is purely a civil status.

No church ceremony is required as a prerequisite to establishing such a union (nor could one be, under the Establishment Clause of the federal constitution). And the Establishment Clause would also disallow the state from asserting, as the interest justifying its marriage laws, the goal of upholding any particular set of religious values.

As the dissenting opinion correctly observed, the issue before the court was civil marriage and whether plaintiffs could be denied access to its benefits and protections. It was not whether the plaintiffs should be allowed to enter into a religious marriage ceremony. That is up to the religious institutions, if any, to which they belong.

Echoing the analysis in Goodridge, the dissent characterized marriage as "a fundamental civil right" and "a creature of State laws governing its entrance, protecting its special status, and, when necessary, specifying the terms of its dissolution." Accordingly, the dissent dismissed an appeal to religious tradition, when considering whether the state could constitutionally bar plaintiffs from marrying the persons of their choice, as, quite simply, "irrelevant."

A Comparison of Lewis and Goodridge: The Relevance of Non-Marriage Rights

A second difference, too, separates the majority opinions in Lewis and Goodridge: while Goodridge used the expanding panoply of rights for same-sex couples as evidence of the irrationality of withholding marriage from them, Lewis used the same expansion to opposite effect.

In New Jersey, the Lewis court pointed out, same-sex couples can register as domestic partners and receive a certain, fixed set of personal and economic rights attendant to that status. Thus, due to the domestic partnership law, same-sex couples are not denied all the benefits of marriage. (Joanna Grossman has written about the New Jersey domestic partnership law in a prior column.)

But so what? The scope of the domestic partnership status remains, in New Jersey, much narrower that that of state-sanctioned heterosexual marriage. (It falls far short of the civil union status available in Vermont and Connecticut, which guarantee virtually identical rights to marriage.) For this reason, a domestic partnership confers concomitantly fewer rights and benefits. Domestic partners, for example, are not protected against termination of the relationship without divorce, nor are they protected from disinheritance. Given the very significant vulnerabilities domestic partners, in New Jersey, still suffer, why should a New Jersey domestic partnership be considered an adequate substitute for marriage?

The Lewis court also suggests that the lawmakers' decision to create a "domestic partner" status - but, notably, not a "marriage" status - shows that the public is not ready for same-sex marriage. That may be true (polls would support such an assertion), but in the past, the public was not ready for desegregation either. Yet the constitution mandated it.

More generally, the constitutionality of a state statute has never been thought to turn on public opinion. Protecting disfavored groups against the tyranny of the majority is one of the most important functions of a constitution embodying guarantees of due process and equal protection. Such rights are needed precisely because public opinion might otherwise ignore due process, and allow - or even institutionalize - inequalities.

A Comparison of Lewis and Goodridge: The Essence of Marriage

A third difference also separates Goodridge from Lewis. While Goodridge's majority found "exclusive and permanent commitment" to be the essence of civil marriage, Judge Skillman, in Lewis, zeroed in on procreation as the essence of marriage.

Earlier New Jersey cases had rejected challenges to state marriage laws on the ground that marriage provides the optimal forum for procreation and child-rearing. On this view, it would be rational to exclude same-sex couples from marriage because they lack the capacity to procreate together.

However, Vermont's and Massachusetts's highest courts soundly rejected this argument. Moreover - and strikingly -- the New Jersey Attorney General did not rely on this familiar appeal to procreation and childrearing when defending the ban on same-sex marriage.

(The reason for the N.J. Attorney General's omission isn't clear; the A.G. may not have found this argument persuasive, or might simply have predicted -- wrongly, as it turns out -- that the New Jersey appeals court would give it short shrift, as the Vermont and Massachusetts high courts had.)

So where did the argument come from - if not from the parties to the case? The Lewis court itself suggested an answer -- noting that several friend-of-the-court briefs raised the argument. These submissions were authored, for example, by conservative religious coalitions formed to protect marriage, and by the New Jersey Catholic Conference.

The problem with the "procreation" argument -- as the dissent observes (and as did the courts in both Goodridge and Baker) is its woeful under- and over-inclusiveness.

Marriage is not restricted to couples with an intent or ability to procreate. Nor is the inability to do so legal grounds for divorce or annulment. Moreover, state and federal privacy rights clearly establish the right not to procreate within marriage.

In addition, some same-sex couples, in the dissent's words, "can and do legally and functionally procreate." Just as many of the six percent of opposite-sex couples who are infertile do, same-sex couples can avail themselves of reproductive technology.

What about the argument that even if procreation isn't unique to opposite-sex marriage, opposite-sex marriage is, at least, the optimal forum for child-rearing?

This simply isn't New Jersey's view. Lawmakers and courts across the country -- including, notably, in New Jersey -- have taken steps to facilitate parenting by lesbians and gay men through reforms of adoption, custody, and visitation laws. That would suggest that they believe that other family arrangements might also be beneficial for children.

The Concurring Opinion: Marriage Manages "the Sexes"?

In his concurring opinion in the New Jersey case, Judge Parrillo makes an even more dramatic appeal to the marriage-is-procreation argument. The concurrence specifically criticizes Goodridge's characterization of commitment as the sine qua non of marriage. It warns that this "distillation of marriage down to its pure 'close personal relationship' essence strips the social institution 'of any goal or end beyond the intrinsic emotional, psychological, or sexual satisfaction which the relationship brings to the individuals involved.'"

The double quotations marks are used here because Parrillo himself is quoting from Daniel Cere, the Director of the Institute for the Study of Marriage, Law, and Culture at McGill University. Cere further notes what he believes to be the importance of marriage's broad embrace of "the fundamental facets of [traditional] conjugal life: the fact of sexual difference; the enormous tide of heterosexual desire in human life, the massive significance of male female bonding in human life; the procreativity of heterosexual bonding, the unique social ecology of heterosexual parenting which bonds children to their biological parents, and the rich genealogical nature of heterosexual family ties."

Marriage, Parrillo concludes, manages the fact that "there are two sexes." Its purpose is "not to mandate procreation but to control or ameliorate its consequences."

This argument that marriage "manages" the sexes sounds disturbingly like a much older and extremely invidious one - which held that marriage serves the supposedly important public purpose of ordering relations between the sexes. At the time, the "order" imposed was that of a hierarchical relationship between man and wife - in which the man was dominant and the woman lacked the most basic rights.

Today, constitutional norms of sex equality would bar a return to this kind of "order." So, too, should they bar the imposition of an "order" that excludes same-sex couples.

Can Marriage's Central Purpose Really Be to "Tame" Straight Men?

If one doubts that Cere's point is to return to the past, one need only consult a just-released report, The Future of Family Law: Law and the Marriage Crisis in North America, which was co-authored by Cere's Institute. This report argues that contemporary conflicts over family law rest on a deeper conflict between two competing visions of marriage: the older (and to the report's authors, superior) model of conjugal marriage and the newer (and to the report's authors, deeply troubling) model of marriage as merely a "close personal relationship."

The report uses striking language about marriage as a way of life involving the "struggle" to bridge "sexual difference." Marriage, in their eyes, is a way of regulating otherwise unruly heterosexual desire - a desire that otherwise causes "immense personal and social damage." Heterosexual marriage, in the eyes of the report, is meant to avoid "the passive, unregulated heterosexual reality [of] multiple failed relationships and millions of fatherless children."

In effect, the report offers a new variation on a familiar theme in defense of traditional marriage: marriage is society's way of taming men. To be sure, the report appeals to an "enormous tide of heterosexual desire" (not just men's desire). But in the end, this tide, the authors believe, is harmful because of men's - not women's - irresponsibility with respect to intimate commitment and children and women's vulnerability due to pregnancy and motherhood.

Will this ominous picture of heterosexual life emerge as a persuasive contemporary justification for why marriage must remain a unique relationship between one man and one woman? It remains to be seen, but we hope not.

Even if this vision did carry the day, how would allowing same-sex couples to marry hinder the institution of marriage from managing this heterosexual sexual ecology?

Indeed, why wouldn't a similar argument about managing desire and channeling it into socially constructive avenues (like long-term, marital commitment) pertain to the benefits of marriage for same-sex couples? (Indeed, some supporters of same-sex marriage extol its potential to channel or domesticate homosexual desire.)

Given that gay men and lesbians do become parents and nurture children, surely they, too, as Goodridge concluded, would benefit from the security and stability afforded by the institution of marriage.

Some Thoughts for Appeal: Marriage Has Both Public and Private Components

New Jersey's Appellate Division, both in the opinion of the court and the concurrence, emphatically rejects Goodridge's vision of marriage as an "evolving paradigm." Both opinions, instead, hearken back to earlier arguments about the definition of marriage. Yet the dissent in Lewis -- like a number of other state court judges facing similar arguments - rightly rejected these earlier arguments for their circular and unpersuasive reasoning.

The court's and concurring opinions in Lewis suppose that society must choose between, on the one hand, preserving marriage as a unique conjugal relationship serving important public purposes, or, on the other hand, reducing marriage to a wholly private relationship concerned only with the personal satisfaction of the couple. But that's a false dichotomy.

The dissent's portrait of the seven couples who sought to marry in Lewis illustrate why this is an unnecessarily harsh choice. As was true in Baker and Goodridge, the plaintiffs were couples living in committed relationships; parents rearing biological, adopted, or step-children together; active members of their communities; and committed partners sharing together the responsibilities and rewards of family life. For them, any harsh public/private distinction was, and is, artificial. Rather than viewing those families as having nothing to do with the goods and purposes linked to marriage, the better approach (as adopted in Baker) is to include them in "the family of state-sanctioned human relations."


Joanna Grossman, a FindLaw columnist, is a professor of law at Hofstra University. Her columns on family law, trusts and estates, and discrimination, including sex discrimination and sexual harassment, may be found in the archive of her columns on this site. Linda McClain, who has been a prior guest columnist for FindLaw, is Rivkin Radler Distinguished Professor of Law at Hofstra University. She discusses same-sex marriage and other family law issues in The Place of Families: Fostering Capacity, Equality, and Responsibility (Harvard University Press, forthcoming).