SCOTUS 'Dobbs' Decision Spawns NJ Legislation Protecting Interracial Marriage

Gov. Phil Murphy signed legislation protecting the right of interracial marriage for New Jersey residents, following the U.S. Supreme Court’s opinion in Dobbs v. Jackson Women’s Health Org., where the justices commented on whether eliminating the constitutional right to abortion would threaten other established precedents.

A federal constitutional prohibition on state laws banning interracial marriage was established in 1967 when the Supreme Court ruled in Loving v. Virginia. The new law signed Tuesday affirms the right of New Jersey residents to marry or enter a civil union with a person of any race. The bill, A-4939/S-3719, ensures that even if the Supreme Court decides that the Constitution no longer protects the right to interracial marriage, New Jersey residents will remain protected.

“In New Jersey, we will continue to stand on the right side of history, ensuring that people have the freedom to marry the person they love,” Murphy said in a statement. “In June of 2022, the Supreme Court’s right-wing majority erased a woman’s long-held constitutional right to an abortion and made clear that they do not value the rights of women to make their own decisions about their bodies. As our country faces an era of uncertainty regarding the basic principles of equality and personal freedom, it is critical that we protect interracial marriage in New Jersey statutory law.”

The bill was sponsored by Sens. M. Teresa Ruiz and Renee C. Burgess, and Assemblymembers John F. McKeon, Raj Mukherji and Carol A. Murphy.

“The New Jersey State Bar Association believes that the right to marry or enter into civil unions is a fundamental right for which race should not be a factor,” New Jersey State Bar President Timothy F. McGoughran said in a statement emailed to the Law Journal. “The United States Supreme Court declared this right fundamental under the Equal Protection Clause in Loving v. Virginia and this bill ensures that New Jersey takes the important step to ensure that remains true in our state on this day and in the future.”

McGoughran, a family law practitioner, said that this legislation is an important measure that will statutorily ensure, and make clear the protection of, interracial marriage and civil unions in New Jersey. He added that the NJSBA is pleased and gratified that Murphy signed the bill into law.

In the Dobbs decision, Associate Justice Clarence Thomas said that the court ”declines to disturb substantive due process jurisprudence generally or the doctrine’s application in other, specific contexts.” Thomas specifically mentioned Griswold v. Connecticut, on the right of married people to obtain contraceptives, Lawrence v. Texas, on the right to engage in private, consensual sexual acts, and Obergefell v. Hodges, on the right to same-sex marriage. While Thomas went on to call the “legal fiction” of substantive due process “particularly dangerous,” he did not mention the Loving case, which was decided on the same right.

“For that reason, in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” Thomas said. “Because any substantive due process decision is ‘demonstrably erroneous,’ we have a duty to ‘correct the error’ established in those precedents.”

Thomas also stated that “substantive due process” is an oxymoron that “lack[s] any basis in the Constitution,” citing a 2015 opinion in Johnson v. United States, which he authored.

Matheu D. Nunn is a partner with Einhorn, Barbarito, Frost & Botwinick and chair of both the firm’s family law and general appellate practices, as well as a fellow of the American Academy of Matrimonial Lawyers. Nunn said that, in the broadest academic sense, he understands the governor’s decision. But, Nunn said, it is key to remember that Thomas’ opinion was in a concurrence and Justice Samuel Alito’s majority precedential opinion was in response to the dissenting opinions. Nunn cited Alito’s opinion in Dobbs in support of his position:

“Perhaps [the dissent] is designed to stoke unfounded fear that our decision will imperil those other rights, but the dissent’s analogy is objectionable for a more important reason: what it reveals about the dissent’s views on the protection of what Roe called ‘potential life,’” Alito wrote. “The exercise of the rights at issue in Griswold, Eisenstadt, Lawrence, and Obergefell does not destroy a ‘potential life,’ but an abortion has that effect. So if the rights at issue in those cases are fundamentally the same as the right recognized in Roe and Casey, the implication is clear: The Constitution does not permit the States to regard the destruction of a ‘potential life’ as a matter of any significance.”