New Jersey Gay Marriage Ruling on Wednesday
---
I have not been following the same-sex marriage litigation by seven gay couples in New Jersey known as "Lewis v. Harris." For that I apologize. In any event, the New Jersey Supreme Court has announced that it will be publishing the long-awaited opinion Wednesday afternoon.
From what I understand, the procedural posture in New Jersey was similar to that in New York: the state has no bigot amendment and no DOMA, but gender-specific terms in the relevant statutes that have been interpreted to limit marriage to opposite-sex couples, as has the enactment of a domestic partnership law that affords only some of the benefits of marriage (in essence, the plaintiffs are arguing that the domestic partnership law is inadequate and therefore unconstitutionally discriminatory). The case is being litigated exclusively on state law and the New Jersey Constitution, so no further appeals by either side will be possible.
What makes New Jersey different, and is making the plaintiffs highly optimistic, is that the court does not have to choose between strict scrutiny of the ban (which of course ought to apply anyway, given the repeated and unequivocal holdings by the United States Supreme Court that marriage is a fundamental right) or the lower "rational basis review" usually applied to unprotected classes of minorities (which should still result in sanctioning gay marriage anyway, since only objectively irrational bases have ever been put forward to justify gay marriage bans).
Instead, New Jersey uses a balancing test that weighs:
1. the nature of the affected interest -- here a constitutionally protected fundamental right
2. the extent to which the governmental restriction intrudes upon it -- here a total ban, and
3. the public need for the restriction -- again, this ought to be a slam dunk, since there is no need whatsoever for the ban -- but will that matter?
More from Lambda Legal.
Other than California, this case is the last hope for progress on gay marriage in the near term. And, of course, the timing of the decision so close to election day cannot be ignored. Talk about an October Surprise.
Stay tuned.
From what I understand, the procedural posture in New Jersey was similar to that in New York: the state has no bigot amendment and no DOMA, but gender-specific terms in the relevant statutes that have been interpreted to limit marriage to opposite-sex couples, as has the enactment of a domestic partnership law that affords only some of the benefits of marriage (in essence, the plaintiffs are arguing that the domestic partnership law is inadequate and therefore unconstitutionally discriminatory). The case is being litigated exclusively on state law and the New Jersey Constitution, so no further appeals by either side will be possible.
What makes New Jersey different, and is making the plaintiffs highly optimistic, is that the court does not have to choose between strict scrutiny of the ban (which of course ought to apply anyway, given the repeated and unequivocal holdings by the United States Supreme Court that marriage is a fundamental right) or the lower "rational basis review" usually applied to unprotected classes of minorities (which should still result in sanctioning gay marriage anyway, since only objectively irrational bases have ever been put forward to justify gay marriage bans).
Instead, New Jersey uses a balancing test that weighs:
1. the nature of the affected interest -- here a constitutionally protected fundamental right
2. the extent to which the governmental restriction intrudes upon it -- here a total ban, and
3. the public need for the restriction -- again, this ought to be a slam dunk, since there is no need whatsoever for the ban -- but will that matter?
More from Lambda Legal.
Other than California, this case is the last hope for progress on gay marriage in the near term. And, of course, the timing of the decision so close to election day cannot be ignored. Talk about an October Surprise.
Stay tuned.
Related Posts (on one page):
- UPS Capitulates on NJ Civil Union Benefits
- UPS Discrimination May Become New Jersey Test Case
- New Jersey: Are Civil Unions Enough?
- Victory in New Jersey
- New Jersey Gay Marriage Ruling on Wednesday
Posted by Kip on
24 October 2006
To comment on this post, please visit the new blogsite.
