October 25, 2006

Notes on New Jersey

Posted at 9:27 pm (Pacific Time)

Earlier today, the New Jersey Supreme Court released its long-awaited ruling on the Garden State’s marriage laws.

The 7-member court unanimously decided that same-sex couples must be granted the same rights and responsibilities as different-sex married couples. The justices split, however, on how to remedy current inequities.

A 4-justice majority ruled that while same-sex couples have a right to all the statutory benefits and privileges conferred on heterosexual married couples, they do not have a constitutionally protected right to marry.

A 3-justice minority, led by retiring Chief Justice Poritz, dissented, arguing that anything less than marriage equality confers second-class status on same-sex couples.

On a personal note, I was honored that Chief Justice Poritz cited my 2006 American Psychologist article in a passage on pages 16-17 of her concurrence/dissent:

“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.’ …. 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. [sic] 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….”

It will be an important step forward if other judicial and legislative bodies will similarly consider the relevant social science research, and will reject unfounded myths and stereotypes when making their decisions about sexual minority families.

The New Jersey legislature now has 6 months to grant de facto equality to same-sex couples but is not obligated to achieve this end by changing the marriage statutes. They are free to create a parallel structure along the lines of Vermont’s civil unions.

The unanimous finding that same-sex couples must be granted equal rights and opportunities certainly represents a significant victory for sexual minorities, especially in light of recent setbacks from state courts in New York and Washington. As I noted in my October 24 post, civil unions and domestic partnerships represent an important step toward eliminating social inequalities based on sexual orientation and are vastly superior to nonrecognition of same-sex committed relationships.

Nevertheless, the fact that the New Jersey court fell one vote short of granting same-sex couples the right to marry must temper any victory celebrations. To the extent that New Jersey represented one of the most likely venues for a Massachusetts-style pro-marriage ruling, the Court’s decision to require a more modest remedy raises questions about the prospects for marriage cases now in the Maryland, Iowa, Connecticut, and California courts.

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