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New Jersey stopped short on Wednesday of becoming the second state in the nation to legalize same-sex marriage by judicial fiat. The state’s high court, while declaring unconstitutional state laws that deny same-sex couples the financial and social benefits and privileges given to married heterosexuals, held that fixing the problem is a legislative task – and gave lawmakers 180 days in which to do it. “At this point, we do not consider whether committed same-sex couples should be allowed to marry, but only whether those couples are entitled to the same rights and benefits afforded to married heterosexual couples,” a divided Court wrote in Lewis v. Harris, A68-05. “Cast in that light, the issue is not about the transformation of the traditional definition of marriage, but about the unequal dispensation of benefits and privileges to one of two similarly situated classes of people.” The justices did not require the Legislature to amend the civil marriage statutes to include same-sex couples but only to come up with a statutory scheme that affords same-sex couples the same rights and benefits as those statutes. The Court offered the Legislature the option of either amending the marriage statutes to include same-sex couples or enacting a parallel statutory structure by another name. “We will not presume that a separate statutory scheme, which uses a title other than marriage, contravenes equal protection principles, so long as the rights and benefits of civil marriage are made equally available to same-sex couples,” Justice Barry Albin wrote for the 4-3 Court. “The name to be given to the statutory scheme that provides full rights and benefits to same-sex couples, whether marriage or some other term, is a matter left to the democratic process.” The Court warned that if the state cannot make entry into a same-sex civil union any more difficult than it is for heterosexual couples to enter marriage, but said any parallel scheme can be regulated, similarly to marriage, to restrict civil unions based on age and consanguinity and to prohibit polygamous relationships. Chief Justice Deborah Poritz, on the day of her retirement from the Court, filed a partial dissent joined by two other justices. The dissenters disagreed with 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 of the state constitution. The justices modified but affirmed dismissal of the suit, brought by seven same-sex couples, most of whom have children, that were denied marriage licenses by local clerks or vital-statistics registrars in 2002. The suit charged that New Jersey laws restricting marriage to male-female unions violate equal protection of law and fundamental rights. The Court found that denying marital-type rights to same-sex couples bears no substantial relationship to a legitimate governmental purpose, the standard of judicial review for encroachments on the equal protection clause of Article I, Paragraph 1, of the New Jersey Constitution. The courts below had found no legal or historical basis for same-sex marriage nor anything to suggest that the framers of the federal or state constitutions considered it a fundamental right to be accorded special protection. Furthermore, the federal Defense of Marriage Act eschews the concept, raising the prospect that same-sex marriage decrees would not accorded full faith and credit nationwide. The state attorney general had argued that New Jersey’s 2004 Domestic Partnership Act conveyed rights synonymous with those of married couples and thus satisfied constitutional requirements. By that statute, similar to laws in Vermont and Hawaii, New Jersey recognized civil unions among same-sex couples and some heterosexual couples. The attorney general also argued that changing marital laws that have pre-existed the nation’s founding required an act of the Legislature, and the Court agreed. To date, all but one state supreme court that has considered the issue – Massachusetts – has disagreed. Courts in Arizona, Washington, D.C., Indiana, Kentucky, Minnesota, New York, Washington state and most recently California have rejected challenges. The Hawaii Supreme Court held in 1993 that the limitation of marriage to opposite-sex couples established a sex-based classification that required strict scrutiny under equal protection analysis. On remand, a trial court held the limitation in violation of the state constitution, but the case was halted when the electorate approved a constitutional amendment banning same-sex marriage. In 2000, the Vermont Supreme Court likewise punted to the state’s legislature, holding that denial of benefits incidental to marriage to same-sex couples violated the state constitution’s “common benefits” provision but that the violation could be remedied by legislation extending the benefits flowing from marriage to same-sex couples. The Vermont Legislature responded with a civil-union law in 2004.

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