This paragraph confers state constitutional rights to due process and equal protection of the law. Greenberg v. Kimmelman, 99 N.J. 552, 568 (1985). Plaintiffs invoke both of these rights in support of their challenge to the limitation of the institution of marriage to members of the opposite sex.
I. Article I, paragraph 1, protects both procedural and substantive due process rights. The substantive due process rights protected by this provision include the right of privacy. This right of privacy “embraces the right to make procreative decisions … [and] the right of consenting adults to engage in sexual conduct.” Greenberg, 99 N.J. at 571-72 (citations omitted).
This court indirectly rejected the view that same-sex couples have a constitutional right to marry in a decision sustaining the validity of provisions of the State Health Plan that denied health benefits to same-sex partners that were extended to spouses of married public employees. Rutgers Council of AAUP Chapters v. Rutgers, 298 N.J. Super. 442, 452-62 (App. Div. 1997), certif. denied, 153 N.J. 48 (1998). Relying on decisions in other jurisdictions that have rejected same-sex couples’ claims of a constitutional right to marry, the court concluded that the determination whether to extend the same benefits to same-sex partners as to spouses involves “political and economic issues to be decided by the elected representatives of the people.” Id. at 462.
Other jurisdictions have expressly rejected constitutional challenges to statutes that limit the institution of marriage to members of the opposite sex. Singer v. Hara, 522 P.2d 1187 (Wash. Ct. App.), review denied, 84 Wash. 2d 1008 (Wash. 1974), concluded that the limitation of the institution of marriage to members of the opposite sex “is based upon the state’s recognition that our society as a whole views marriage as the appropriate and desirable forum for procreation and the rearing of children,” 522 P.2d at 1195, and that “marriage is so clearly related to the public interest in affording a favorable environment for the growth of children that we are unable to say that there is not a rational basis upon which the state may limit the protection of its marriage laws to the legal union of one man and one woman,” id. at 1197. Other courts that have rejected challenges to the constitutionality of the limitation of marriage to members of the opposite sex also have relied on the role that marriage plays in procreation and in providing the optimal environment for child rearing.
The only state Supreme Court decision that has declared the limitation of the institution of marriage to members of the opposite sex to be unconstitutional is Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941 (Mass. 2003), which is discussed later in this opinion. See also Opinions of the Justices to the Senate, 802 N.E.2d 565 (Mass. 2004). In addition, the Vermont Supreme Court held that denial of the benefits incident to marriage to same-sex domestic partners violated the “common benefits” provision of the Vermont Constitution, but that this constitutional violation could be remedied by enactment of a domestic partnership act or other legislation that extends the benefits that flow from marriage to same-sex couples. Baker v. State, 744 A.2d 864, 886-87 (Vt. 1999). The Vermont Legislature subsequently enacted legislation authorizing domestic partnerships to comply with this mandate. The Hawaii Supreme Court held that the limitation of marriage to members of the opposite sex established a sex-based classification that required strict scrutiny under equal protection analysis, Baehr v. Lewin, 852 P.2d 44 (Haw. 1993), and on remand, a trial court declared this limitation to be violative of the Hawaii Constitution, but before the case was brought back before the Hawaii Supreme Court, the electorate approved a constitutional amendment prohibiting same-sex marriage.
The Supreme Court of the United States has recently reaffirmed that “the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, ‘deeply rooted in this Nation’s history and tradition,’ and ‘implicit in the concept of ordered liberty,’ such that ‘neither liberty nor justice would exist if they were sacrificed.’” Washington v. Glucksberg, 117 S.Ct. 2258, 2268 (1997). The Court noted that confining constitutional protection to “fundamental rights found to be deeply rooted in our legal tradition … tends to rein in the subjective elements that are necessarily present in due-process judicial review.” Id. at 2268. Marriage between members of the same sex is clearly not a “fundamental right[] … deeply rooted in our legal tradition.”
Plaintiffs’ claim that a right to marriage between members of the same sex may be found in Article I, paragraph 1, of the New Jersey Constitution has no foundation in its text, this nation’s history and traditions or contemporary standards of liberty and justice. It certainly is an idea that would have been alien to the delegates to the 1947 Constitutional Convention who proposed this provision and to the voters who approved it. Although there has been a substantial liberalization of public attitudes toward the rights of homosexuals in the intervening 58 years, there is no current public consensus favoring recognition of marriages between members of the same sex. In fact, in 1996 Congress enacted the Defense of Marriage Act (DOMA), 110 Stat. 2419, which provides that no state shall be required to give effect under the Full Faith and Credit Clause of the U.S. Constitution, U.S. Const. art. IV, � 1, to any other state’s law that recognizes same-sex marriage, 28 U.S.C.A. � 1738C, and that all Acts of Congress that refer to “marriage” or “spouse” shall be interpreted to apply only to mixed-gender couples, 1 U.S.C.A. � 7. And as previously discussed, the Legislature recently enacted the Domestic Partnership Act, which confers substantial legal rights on same-sex couples who enter into domestic partnership unions but stops short of recognizing the right of members of the same sex to marry.
Plaintiffs have failed to identify any source in the text of the New Jersey Constitution, the history of the institution of marriage or contemporary social standards for their claim that the Constitution mandates state recognition of marriage between members of the same sex. Plaintiffs describe marriage as simply a “compelling and definitive expression of love and commitment that can occur between two adults” � without any reference to the historical, religious or social foundations of the institution � and argue that because two members of the same sex have the same capacity as members of the opposite sex to “make a strong and meaningful lifetime commitment to each other,” the state must extend the same recognition to same-sex marriage as a marriage between members of the opposite sex. However, our society and laws view marriage as something more than just state recognition of a committed relationship between two adults. Our leading religions view marriage as a union of men and women recognized by God, and our society considers marriage between a man and woman to play a vital role in propagating the species and in providing the ideal environment for raising children.
Plaintiffs argue that the state’s contention that the essence of the institution of marriage is a state-sanctioned union between members of the opposite sex constitutes “circular reasoning” � a characterization adopted by the dissent in its discussion of decisions in other jurisdictions that have upheld the limitation of the institution of marriage to members of the opposite sex. However, plaintiffs’ argument proceeds along the same kind of circular path that they accuse the state of following. Plaintiffs start with the premise that there is no difference between a “compelling and definitive expression of love and commitment” between members of the same sex and a marriage between members of the opposite sex, and then argue from this premise that the state has failed to carry its burden of justifying the limitation of the institution of marriage to a man and a woman. But the significant difference between these arguments is that the state’s argument is grounded on historical tradition and our nation’s religious and social values, while plaintiffs’ argument is based on nothing more than their own normative claim that society should give unions between same-sex couples the same form of recognition as marriages between members of the opposite sex.
The same form of constitutional attack that plaintiffs mount against statutes limiting the institution of marriage to members of the opposite sex also could be made against statutes prohibiting polygamy. Persons who desire to enter into polygamous marriages undoubtedly view such marriages, just as plaintiffs view same-sex marriages, as “compelling and definitive expression[s] of love and commitment” among the parties to the union. Indeed, there is arguably a stronger foundation for challenging statutes prohibiting polygamy than statutes limiting marriage to members of the opposite sex because, unlike gay marriage, polygamy has been and still is condoned by many religions and societies. Nevertheless, courts have uniformly rejected constitutional challenges to statutes prohibiting polygamy on the grounds that polygamous marriage is offensive to our nation’s religious principles and social mores.
Plaintiffs’ only response to the state’s comparison of the justification for limitation of the institution of marriage to members of the opposite sex with its limitation to a single man and a single woman is that “[t]hey do not challenge the ‘binary nature of marriage’ and indeed embrace the solemn statutory obligation of ‘exclusivity.’” However, persons whose religions and cultural traditions condone polygamy, but disapprove of same-sex marriage, could just as easily say that they do not challenge the limitation of marriage to members of the opposite sex, only the requirement that marriage must be binary.
Held: In sum, the right to marry is a fundamental right that is subject to the privacy protections of Article I, paragraph 1, of the New Jersey Constitution. However, this right extends only to marriages between members of the opposite sex. Plaintiffs’ claim of a constitutional right to state recognition of marriage between members of the same sex has no foundation in the text of the Constitution, this nation’s history and traditions or contemporary standards of liberty and justice. Therefore, the court rejects plaintiffs’ claim under the substantive due process and privacy protections of the New Jersey Constitution.
II. In determining whether the state has violated the equal protection guarantees of Article I, paragraph 1, the courts employ a balancing test that considers “the nature of the affected right, the extent to which the governmental restriction intrudes upon it, and the public need for the restriction.” Greenberg, 99 N.J. at 567. Thus, the “crucial” threshold step in the required constitutional analysis is identification of “the nature of the [claimed] right.” Ibid.
In the decisions on which plaintiffs construct their constitutional attack on the limitation of marriage to members of the opposite sex, it was undisputed that the statute in issue affected a constitutional right. Consequently, the only question in those cases was “the extent to which the [challenged statute] intrude[d] upon [a recognized constitutional right], and the public need for the restriction.” Greenberg, 99 N.J. at 567.
In contrast, the essential question in this case is whether same-sex couples have any constitutional right to marry. For reasons set forth at length in Section I of this opinion, only members of the opposite sex have a constitutionally protected right to marry. Therefore, plaintiffs have failed to satisfy their threshold burden to show the existence of an “affected right,” and for that reason the state is not required to show that the “public need” for restrictions on that right outweigh plaintiffs’ interest in its exercise.
The primary federal decision on which plaintiffs rely, Loving v. Virginia, 87 S.Ct. 1817 (1967), rested on the premise, derived from Skinner v. Oklahoma, 62 S.Ct. 1110 (1942), that members of the opposite sex have a constitutionally protected right to marry. Proceeding on this premise, the Court invalidated a Virginia statute that prohibited a “white person” from marrying anyone other than another “white person” on the grounds that “restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause [of the Fourteenth Amendment.]” Loving, 87 S.Ct. at 1823. Noting that “[m]arriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival[,]” the Court also held that the statute violated the Due Process Clause. Ibid. However, nothing in Loving suggests that the Fourteenth Amendment prohibits a state from limiting the institution of marriage to a state-recognized union between a man and a woman. Subsequent Supreme Court decisions also indicate that the constitutionally protected right recognized by the Court is the right of members of the opposite sex to marry.
The only opinion by a member of the Court that directly addresses whether the Fourteenth Amendment may be found to compel recognition of a right of same-sex couples to marry is Justice Scalia’s opinion in Lawrence v. Texas, 123 S.Ct. 2472, 2497-98 (2003) (Scalia, J., dissenting). In dissenting from the majority’s holding that a Texas statute making it a crime for two persons of the same sex to engage in certain types of intimate sexual conduct violated the Due Process Clause, he stated:
Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. 123 S.Ct. at 2498.
However, Justice Kennedy’s majority opinion rejected this contention, stating:
[This case] does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. 123 S.Ct. at 2484.
