Separate is Not Equal, According to the New Jersey Civil Union Review Commission:The Implications of Its Findings that the Civil Union Alternative "Invites and Encourages Unequal Treatment"

By JOANNA GROSSMAN
Tuesday, January 20, 2009

In December 2006, the New Jersey Legislature adopted a civil union law, permitting same-sex couples to enter into a legal alternative to marriage. The legislature acted in the wake of a ruling from the New Jersey Supreme Court, holding that it did not violate the state constitution's guarantees of equal protection or due process for the state to exclude same-sex couples from marriage, as long as it offered them the benefits of marriage.

In its recently-released final report, however, the New Jersey Civil Union Review Commission unanimously concluded that the alternative status is simply not as good. Rather, the report concludes, because the civil union alternative "invites and encourages unequal treatment of same-sex couples and their children," the legislature and governor should change the law to permit same-sex couples to marry. Moreover, the Commission implored the state to act "expeditiously because any delay in marriage equality will harm all the people of New Jersey."

Though the national and international landscape on same-sex marriage is colorful, New Jersey provides a terrific case study of the many different stages, as well as the advances and setbacks for proponents, in the battle over same-sex marriage. Though the New Jersey Supreme Court has rejected same-sex marriage as a constitutional necessity, this latest development may set the stage, ultimately, for the legislative enactment of same-sex marriage in New Jersey.

Same-Sex Couples in New Jersey: An Evolving Legal Landscape

The New Jersey suit challenging the constitutionality of the state's ban on same-sex marriage was filed in 2001, and the case was Lewis v. Harris. The trial court ruled against the challenge, in an opinion the national significance of which was dwarfed by the legalization of same-sex marriage in Massachusetts just two weeks later. In that state, the Supreme Judicial Court ruled, in Goodridge v. Department of Public Health, that it violated Massachusetts' constitutional guarantees of equal protection and due process to exclude same-sex couples from marriage. Six months later, same-sex marriage became a reality for the first time in the United States.

The first ruling in New Jersey's Harris case, however, reached the opposite conclusion. Same-sex couples had sued after being denied marriage licenses by county clerks. On its face, New Jersey's marriage law did not expressly say that only opposite-sex couples can marry, but, as in other states, the neutral law was interpreted to exclude same-sex couples. The trial court concluded that the New Jersey constitution, interpreted in light of federal constitutional precedents, permitted such a ban. The court emphasized the importance of tradition to substantive due process analysis--and held that, according to tradition, the right to marry a same-sex partner is not "deeply rooted in our nation's history."

New Jersey's Domestic Partnership Law

A few months after this ruling, the New Jersey Legislature followed a small but growing trend of providing some formal recognition to same-sex couples. New Jersey's "Domestic Partnership Act" created a legal status available both to same-sex couples and to opposite-sex couples over age 62, as long as the couple shares a common residence, is engaged in a "committed relationship of mutual caring," and is financially interdependent. (The potential loss of, or reduction in, retirement benefits or Social Security eligibility for senior couples sometimes makes them reluctant to marry, despite being in a committed relationship.) Through the Act, the legislature sought to recognize the existence of "important personal, emotional and economic committed relationships with another individual," and to promote the "financial, physical and emotional health of their participants."

Domestic partners in New Jersey are not equivalent to spouses, and they lack some of the significant benefits that come with marriage. (I detail the provisions of the domestic partnership status in a previous column.) The lack of fanfare accompanying the Act was notable. It represented a bold step toward greater recognition of same-sex relationships, yet little or no controversy ensued.

Continued Litigation over the Right to Marry: The Appellate Rulings

Though the adoption of a domestic partnership law satisfied some of the needs of same-sex couples, litigation over the right to marry continued to work its way through the New Jersey courts. In 2005, the Court of Appeals affirmed, with a vote of 2-1, the trial court's ruling against the right of same-sex marriage.

The majority opinion is noteworthy for its narrow-sightedness. It repeatedly blurred the religious and legal dimensions of marriage, citing the religious foundations of marriage as a justification for preserving it in its traditional form. It declared the essence of marriage to be procreation and child-rearing, and held that it was rational to exclude couples unable to naturally procreate together (a rule that would include infertile heterosexual couples as well). The majority also used the domestic partnership law to justify withholding marriage rights – on the theories that same-sex couples already receive sufficient protection from the state and that the legislature's decision to provide a lesser status reflects that society is not ready for same-sex couples to enter into full-fledged marriages. (This opinion is analyzed more fully in a prior column I co-authored with Linda McClain.)

The following year, the New Jersey Supreme Court ruled that same-sex couples did not have a constitutional right to marriage per se. However, the court found no legitimate reason to justify the continued exclusion of same-sex couples from the myriad benefits of marriage. The court deferred to the legislature, leaving it to the legislature to choose whether to open civil marriage to same-sex couples, or create an equivalent status for them.

New Jersey's Civil Union Law

In December 2006, the New Jersey legislature passed a civil union law, which, like similar laws in Vermont and New Hampshire, grants all the benefits, and imposes all the obligations, of marriage on same-sex couples who choose to "civilly unionize."

According to its introductory statement, the bill was crafted not only to comply with the court's mandate in Lewis, but also to carry out and extend New Jersey's solid history of guaranteeing equality for homosexuals. New Jersey was the first state to adopt comprehensive legislation banning discrimination on the basis of sexual orientation, and, as discussed above, it had earlier adopted a domestic partnership law without pressure from the courts.

At the time civil unions were adopted, 60 percent of New Jersey voters supported civil unions for same-sex couples, while only 44 percent favored full marriage rights. (These and other poll numbers on gay unions are available at www.pollingreport.com/civil.htm.) On both counts, New Jersey voters were ahead of the nation in their support for legal recognition of same-sex relationships. And since then, nationwide polls show an increase in the percentage of Americans who support not only civil unions, but full marriage rights as well.

New Jersey's Experience with Civil Unions

When the civil union law was passed, voices both inside and outside the New Jersey legislature claimed that full-fledged marriage rights would follow in New Jersey within the next few years. Two basic predictions were made: First, commentators predicted that public experience with civil unions would engender greater support for gay marriage, once heterosexuals were able to see that granting legal recognition to same-sex unions has little if any broader impact on their lives or marriages. Second, they predicted that civil unions would simply prove the adage that separate is not, in fact, equal.

It is true that public support for same-sex marriage has increased in recent years, perhaps in response to its availability in Massachusetts, briefly in California, and, due to a recent court ruling, in Connecticut. But, according to the New Jersey Civil Union Review Commission, the latter prediction seems to have been correct as well: According to the Commission's report, the separate civil union status has not, in practice, proved equal.

The Civil Union Commission's Report

The Commission was formed by the state legislature, when it adopted the civil union law in 2006. In its final report, The Legal, Medical, Economic & Social Consequences of New Jersey's Civil Union Law, the Commission drew stark conclusions, based on eighteen months of public meetings and the written or oral testimony of over 150 witnesses, about the appropriateness of maintaining a separate civil status for same-sex couples.

There are two ways in which same-sex couples still will not be equal, even if a state authorizes full marriage rights. First, because of the federal Defense of Marriage Act (DOMA), same-sex unions are not recognized under federal law, meaning that couples must file separate federal tax returns, and that entering into a civil union with a non-citizen does not affect the latter's immigration status, nor provide any other federally-conferred benefit. Second, most states have passed statutes or constitutional amendments prohibiting the recognition by the state of same-sex marriage, even if validly celebrated elsewhere.

However, the New Jersey Commission's report identifies several types of problems with civil unions that it believes could be solved by the state's adoption of full marriage rights for same-sex couples.
First, the New Jersey Commission concluded that a separate legal structure can never be truly equal. It found that the state's use of a separate status to confer marriage-like benefits reinforced the "second-class status" of gays and lesbians, sending the message "that it is permissible to discriminate against them." This line of reasoning led the highest courts in California and Massachusetts to reject civil unions as a constitutionally-permissible alternative to marriage. (As readers likely know, the California ruling was later overthrown by Proposition 8, a voter referendum that ended, for now, the state's brief experience with same-sex marriage – but that is being challenged in the California Supreme Court.)

Second, the New Jersey Commission found that civil unions fail to capture the intangible benefits of marriage, which is a status that is "universally understood" and has a "powerful meaning." Civil unions, in contrast, are frequently misunderstood and undermined, the Commission found. Witnesses described situations "in which they were forced to explain their civil union status, what a civil union is, and how it is designed to be equivalent to marriage. These conversations include the indignities of having to explain the legal nature of their relationship, often in times of crisis, and the obstacles and frustrations encountered when using government, employer, or health care forms that do not address or appropriately deal with the status of being in a civil union."

Third, the New Jersey Commission concluded that children are worse off for their parents being consigned to civil union status, rather than afforded the status of marriage. The refusal to grant marriage rights has had "a detrimental effect" on the families of civil union couples, the Commission found. Health experts testified about the psychological harm that second-class systems can place on children being raised in same-sex families, especially those children who are themselves gay, lesbian, or transgender.

For these and other reasons, the New Jersey Commission concluded that New Jersey should offer full marriage rights to same-sex couples. (A commission studying civil unions in Vermont reached similar conclusions in April 2008.)

The ball is now in the legislature's court. Will its members listen to the Commission they created?

Joanna Grossman, a FindLaw columnist, is a professor of law at Hofstra University and is currently a visiting professor of law at Vanderbilt 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.

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