The Sneaky Petes Tweak Equal Protection

On October 25, 2006, in General, by Neil Stevens

For some time, I’ve been arguing that any Fourteenth Amendment challenge to marriage is absurd, because unlike actual forms of irrational discrimination (such as ‘race’-based marriage restrictions) the definition of marriage, a union between a man and a woman, treats all men equally and all women equally.

Today, New Jersey’s courts did something different. The sneaky Petes claim that ‘couples’ have distinct Constitutional rights that the court has the authority to protect. For their justification, see the Supreme Court of New Jersey in Lewis v. Harris, page 42:

In passing the [Domestic Partership] Act, the Legislature expressed its clear understanding of the human dimension that propelled it to provide relief to same-sex couples. It emphasized that the need for committed same-sex partners “to have access to these rights and benefits is paramount in view of their essential relationship to any reasonable conception of basic human dignity and autonomy, and the extent to which they will play an integral role in enabling these persons to enjoy their familial relationships as domestic partners.” N.J.S.A. 26:8A-2(d).

The court then goes on to show that the law does not treat ‘same-sex couples’ the same way it treats ‘opposite-sex couples,’ and then decides on page 57 that:

The equal protection requirement of Article I, Paragraph 1 leaves the Legislature with two apparent options. The Legislature could simply amend the marriage statutes to include same-sex couples, or it could create a separate statutory structure, such as a civil union, as Connecticut and Vermont have done. See Conn. Gen. Stat. §§ 46b-38aa to -38pp; Vt. Stat. Ann. tit. 15, §§ 1201-1207.

What I cannot find, though, is where the Court shows that the Constitutions of the US or New Jersey provide rights collectively to couples. They do show a right to marry held by individuals, they show a right to individual equal protection, but never are ‘couples’ shown as being entitled to anything. The only justification given, repeatedly, is a series of laws passed by New Jersey and other states (as quoted above), as part of an ‘evolving ethos of a maturing society’ coming around to the side of the plaintiffs (Page 64).

In coming this conclusion the court refers to, in essence, the penumbra of the New Jersey Constitution, not the US Constitution. We still need to be concerned nationally though. See Page 34 (emphasis added):

Article I, Paragraph 1 of the New Jersey Constitution sets forth the first principles of our governmental charter — that every person possesses the “unalienable rights” to enjoy life, liberty, and property, and to pursue happiness. Although our State Constitution nowhere expressly states that every person shall be entitled to the equal protection of the laws, we have construed the expansive language of Article I, Paragraph 1 to embrace that fundamental guarantee.

So this reasoning is something we have to worry about nationally, because an activist federal court would not have to make that reach in order to claim the existence of a right to equal protection. They only have to look at the Fourteenth Amendment for that.


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