We celebrate the achievement of the right to marry the person of one’s choosing regardless of gender that is now embedded in New Jersey law, and increasingly in that of the nation. We have long been supporters of this movement. We especially appreciate the efforts of the lawyers and litigants who brought about this advance in our understanding of the meaning of equality.
We applaud Judge Mary Jacobson for her comprehensive analysis of the impact of U.S. v. Windsor. That U.S. Supreme Court decision demonstrated the impossibility of the compromise proposed by the New Jersey Supreme Court’s majority in Lewis v. Harris: that civil union could survive if it proved the equal of marriage.
We laud the court for its recognition that equal protection compels our state to allow all its citizens the same federal benefits as do traditional heterosexual married couples. And we are gratified that the governor—despite his personal differences of opinion—chose to withdraw the appeal, leaving as the law of New Jersey the Supreme Court’s unanimous declaration that the opponents of marriage equality could not show a likelihood of success on the merits.
There remains work to be done. We urge the Legislature to override the governor’s veto of S-1, the Marriage Equality and Religious Exemption Act, which would embed marriage equality in the statutory law of our state. Also of great importance, S-1 would enshrine recognition of conscience exemptions: No religious minister who adheres to traditional sexual morality should be required to bless or officiate at a same-sex marriage. Marriage as a civil institution and as a sacramental institution are rightly to be kept separate.
Finally, we note that the history of this issue is not that of judicial fiat. The state Supreme Court stayed its hand in Lewis in 2006, allowing the experiment of civil unions. The Legislature created civil-union status, studied it and concluded that it could not achieve equality with marriage. The Supreme Court again stayed its hand in Garden State Equality in 2011, directing the litigants to develop a factual record. In 2012, S-1 was passed but failed to become law thanks to the governor’s veto. The Legislature declined, rightly we think, the governor’s proposal to present the issue of minority rights to a popular referendum. But the accelerating embrace of marriage equality in America led to last summer’s landmark decision by the U.S. Supreme Court in Windsor, fundamentally shifting the ground.
What we have witnessed is a complex dialogue among the three branches of the government and an interested citizenry about evolving views. The result is a victory of democracy in action, bending the arc of history toward justice.
Board members Ronald Chen, Lawrence Lustberg and Edwin Stern recused from this editorial.