Friday’s New Jersey Superior Court decision in Garden State Equality v. Dow holding that equal protection requires the extension of marriage to same-sex couples was an important victory for marriage equality overall and for recognition of the importance of naming. The decision arises at a time when debate continues over whether the New Jersey legislature will override the gubernatorial veto of the last year’s Marriage Equality and Religious Exemption Act, which would have extended the title of marriage to same-sex couples in New Jersey.
Seven years ago, the New Jersey Supreme Court concluded in Lewis v. Harris that the equal protection challenge to the state’s refusal to marry same-sex couples could be separated into two distinct issues – (1) whether same-sex couples had an equal right to the rights of marriage; and (2) whether they had a right to the title “marriage.” As to the first question, the court easily concluded that same-sex couples were entitled under equal protection principles to the benefits and privileges of marriage. But as to the second question, the court was careful to maintain a distinction between substantive rights and naming. In deferring to the legislature, the majority chose not to “presume that a difference in name alone is of constitutional magnitude.”
The question of access to the title of “marriage” has often focused on the social costs associated with being labeled something other than married. In her stirring dissent from the court’s deferral of the naming question in Lewis v. Harris, then-Chief Justice Poritz identified the stigma and devaluation flowing from giving same-sex couples a title other than marriage. I have written more extensively about this issue elsewhere.
The decision in Garden State Equality v. Dow highlights the substantive costs (apart from the social ones) of failing to use the term “marriage.” With DOMA’s Section 3 in place prior to Windsor, committed couples in New Jersey—in marriages or civil unions—were similarly, if not equally, situated regarding substantive rights and privileges. But with Section 3 invalidated and many federal agencies conferring federal benefits only to married same-sex couples, not couples in civil unions, New Jersey’s committed same-sex couples do not receive equal protection as promised by Lewis. The decision underscores just how much there is in a name.