In a decision that came dangerously close to authorizing same-sex marriage, the New Jersey Supreme Court concluded in the case of Lewis v. Harris that there was, in fact, no constitutional right under the New Jersey Constitution for same-sex marriage. This aspect of the opinion is very important. If advocates for same-sex marriage were successful in obtaining a decision mandating a marriage designation, they could have then challenged the federal Defense of Marriage Act and brought future challenges mandating that other states authorize same-sex marriages as well. In light of the court’s decision, that avenue is foreclosed.

The court noted that both the U.S. Supreme Court and decisions in New Jersey “fall far short of establishing” that same-sex marriage was a fundamental right. Advocates for same-sex marriage often rely on the U.S. Supreme Court decision in Loving v. Virginia, where a prohibition on interracial marriage was deemed to be unconstitutional. Same-sex marriage advocates have utilized the Loving case to draw an analogy to their ongoing fight for marriage recognition.

The New Jersey Supreme Court noted that Loving dealt with “intolerable racial distinctions that patently violated the Fourteenth Amendment.” The court noted that Loving and other cases cited by plaintiffs all dealt with heterosexual marriage. The court explained that:

“In searching for the meaning of `liberty’ . . . 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 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.”

Although the court ultimately concluded that there was no fundamental right to same-sex marriage, it did 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.” The court, however, resisted the temptation to mandate a statutory scheme change that would require the adoption of a marriage law for same-sex couples. Rather, the court has put the burden on the legislature to come up with either a marriage definition or a civil union statutory framework.

In this case, advocates for same-sex marriage sought the title of marriage as being significant. In fact, they argued that the title “marriage” is “an intangible right, without which they are consigned to second-class citizenship.” In rejecting the requirement for marriage, the court said: “We will not presume that a difference in name alone is of constitutional magnitude.”

Same-sex marriage advocates were disappointed with the decision, as were those who favored traditional marriage. We filed briefs in the case asserting that the definition of marriage should be maintained as a relationship between one man and one woman. While the court agreed that there’s no fundamental right to same-sex marriage, the mandate for substantial and significant benefits identical to marriage means that New Jersey, like Vermont, now has a mandated civil union statute in place. While this saves for another day the constitutionality of the Defense of Marriage Act and does not give the same-sex advocates what they wanted, the issue of marriage continues to be one of significance that will be litigated throughout the country.