Lewis v. Harris II — “civil union” versus “marriage”, one more time

Last month, on behalf of several same-sex couples, Lambda Legal filed a “Petition in Aid of Litigants’ Rights”  with the New Jersey Supreme Court, asking for further relief in Lewis v. Harris, 908 A.2d 196 (N.J. 2006).    The petition argues that the state’s Civil Union Law, created in 2006,  has utterly failed to create the constitutionally required equality for same-sex couples.  It requests the court to revisit the matter forthwith and order the state to recognize marriage for same-sex couples.

In 2006 in Lewis v.  Harris, the court held 7 – 0  that New Jersey’s constitution as a matter of equal protection (although not as a fundamental right) required the state to provide all the rights and benefits of marriage to committed same-sex couples, and also some kind of full legal recognition — the already-existing “domestic partnership” regime, with its limited benefits and different structure, was constitutionally insufficient.  But the court split 4 – 3 on whether to require the legislature to include same-sex couples within the legal definition of marriage, or to permit the legislature in its discretion instead to create a new legal institution for same-sex couples.  The legislature (very quickly) chose the latter course, enacting New Jersey’s Civil Union Law.

Three years later, the March 2010 pleading challenges that law as constitutionally inadequate.  It argues that the separate institution of civil union does not convey to same-sex couples and their families the important though intangible status of marriage, and that the separate-but-equal approach stigmatizes them in an ongoing way; that same-sex couples and their families must expend considerable effort and suffer considerable embarrassment claiming the equal rights that “civil union” is supposed to provide; and that in daily encounters, failures of others to recognize “civil union”, whether inadvertent or deliberate and feigned, regularly result in not being accorded rights and benefits equivalent to those of different-sex married couples, the goal that civil union is required to achieve.

The pleading is not styled as a new lawsuit, but as a request for immediate further relief directly from the state Supreme Court.  This unusual procedure is modeled on inter alia the state’s school funding litigation, where judicially-required remedies proved inadequate to resolve the underlying constitutional deficiency and the litigants returned directly to the state Supreme Court for further help.

It is hoped that this procedure will speed the litigation along.  The composition of the New Jersey Supreme Court is changing, with two of the justices who voted to require marriage in 2006 having reached the mandatory retirement age of 70.  The third justice in favor of requiring marriage back in 2006 is also close to mandatory retirement, and other justices are coming up for reappointment.  In short, the current court is already likely more moderate than in 2006 and, with new appointments and reappointments in the hands of Republican Governor Chris Christie, the court is unlikely to grow any more favorable towards judicially-imposed marriage equality.

The 2006 opinion arguably leftthe door open for a return trip to court.  Justice Albin, for the majority, wrote, “We will give, as we must, deference to any legislative enactment unless it is unmistakeably shown to run afoul of the  Constitution. Because this State has no experience with a civil union construct that provides equal rights and benefits to same-sex couples, we will not speculate that identical schemes called by different names would create a distinction that would offend Article I, paragraph 1.  We will not presume that a difference in name alone is of constitutional magnitude. ” 908  A.2d at 221 – 22.

Well, now there is more information about civil union.  The plaintiffs rely on evidence developed by the New Jersey Civil Union Review Commission, whose final report in December 2008 unanimously found civil union unequal and recommended marriage equality.   New Jersey Civil Union Review Commission, The Legal, Social, Medical, and Economic Conseqeunces of New Jersey’s Civil Union Law (Dec. 10, 2008), available at http://nj.gov/oag/dcr/downloads/CURC-Final-Report-.pdf This conclusion surprised no one who was watching; to be sure, the Commission was bipartisan and based its findings and conclusions on public hearings, but from the outset it seemed comprised of supporters of full equality.  The March 2010 petition also relies on testimony provided to the state Senate back in December, 2009, when it was hoped that the legislature might in a lame-duck session enact a marriage equality bill.  Outgoing Governor Corzine pledged to sign it; incoming Governor Christie pledged to veto it.  The bill was not moved forward.

The state of Vermont followed a similar path to New Jersey, up until this round.  That is, Vermont’s Supreme Court, like New Jersey’s, unanimously held that the state constitution required the state to provide equal rights and benefits to same-sex couples as to different-sex married couples.  Baker v. State, 744 A.2d 864 (Vt. 1999).  The Vermont Supreme Court split on whether to require a redefinition of marriage, with the majority allowing the state legislature to decide whether to do that or to enact a different but supposedly equal institution.  After a contentious debate, the Vermont legislature in 2000 created a parallel “civil union” status.  But a commission created by the leaders of both houses of the Vermont legislature in 2007 concluded, in 2008, that civil union had not resulted in equality, and could not.  Report of the Vermont Commission on Family Recognition and Protection, April 21, 2008, available at http://www.leg.state.vt.us/WorkGroups/FamilyCommission/VCFRP_Report.pdf The Vermont Commission was not charged to recommend whether the state legislature should respond; but the legislature did so in 2009, amending Vermont law so as to include same-sex couples in marriage and phase out civil union by 2011.

Amicus briefs in support of the Lewis v. Harris plaintiffs are trickling in.  The state will file its response in late May.  The court could grant the petition, deny it altogether, or establish a special master to take formally the kind of evidence contained in the Civil Union Review Commission report.  We’ll see.

What do I make of the claim?  I’ve come to the conclusion that civil union just cannot be made equal to marriage.  Last year I wrote about this, with regard to the Connecticut marriage equality decision, Kerrigan v. Comm’r of Public Health, 957 A.2d 407 (Conn. 2008).  Marc R. Poirier, Name Calling: Identifying Stigma in the “Civil Union” / ” Marriage” Distinction, 41 Conn. L. Rev. 1425 (2009).  I’ll summarize some of my arguments, as well as my contribution to one of the Lewis v. Harris amicus briefs, in a post tomorrow.

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