CHIEF JUSTICE PORITZ, concurring and dissenting. I concur with the determination of the majority that “denying the rights and benefits to committed same-sex couples that are statutorily given to their heterosexual counterparts violates the equal protection guarantee of Article I, Paragraph 1[,]” of the New Jersey Constitution. Ante at ___ (slip op. at 6). I can find no principled basis, however, on which to distinguish those rights and benefits from the right to the title of marriage, and therefore dissent from the majority’s opinion insofar as it declines to recognize that right among all of the other rights and benefits that will be available to same-sex couples in the future.
I dissent also from the majority’s conclusion that there is
no fundamental due process right to same-sex marriage
“encompassed within the concept of liberty guaranteed by Article
I, Paragraph 1.” Ante at ___ (slip op. at 5-6). The majority
acknowledges, as it must, that there is a universally accepted
fundamental right to marriage “deeply rooted” in the
“traditions, history, and conscience of the people.” Ante at
___ (slip op. at 6). Yet, by asking whether there is a right to
same-sex marriage, the Court avoids the more difficult questions
of personal dignity and autonomy raised by this case. Under the
majority opinion, it appears that persons who exercise their
individual liberty interest to choose same-sex partners can be
denied the fundamental right to participate in a state-sanctioned
civil marriage. I would hold that plaintiffs’ due
process rights are violated when the State so burdens their
liberty interests.
Article I, Paragraph 1, states: All persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness. [N.J. Const. art. I, ¶ 1.]
This language constitutes our State equivalent of the Due
Process and Equal Protection Clauses of the Federal
Constitution.
I. The majority has provided the procedural and factual context for the issues the Court decides today. I will not repeat that information except as it is directly relevant to the analytical framework that supports this dissent. In that vein, then, some initial observations are appropriate.
Plaintiffs have not sought relief in the form provided by
the Court -- they have asked, simply, to be married. To be
sure, they have claimed the specific rights and benefits that
are available to all married couples, and in support of their
claim, they have explained in some detail how the withholding of
those benefits has measurably affected them and their children. As the majority points out, same-sex couples have been forced to cross-adopt their partners’ children, have paid higher health insurance premiums than those paid by heterosexual married couples, and have been denied family leave-time even though, like heterosexual couples, they have children who need care. Ante at ___ (slip op. at 11). Further, those burdens represent only a few of the many imposed on same-sex couples because of their status, because they are unable to be civilly married. The majority addresses those specific concerns in its opinion.
But there is another dimension to the relief plaintiffs’
seek. In their presentation to the Court, they speak of the
deep and symbolic significance to them of the institution of
marriage. They ask to participate, not simply in the tangible
benefits that civil marriage provides -- although certainly
those benefits are of enormous importance -- but in the
intangible benefits that flow from being civilly married. Chief
Justice Marshall, writing for the Massachusetts Supreme Judicial
Court, has conveyed some sense of what that means: