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Tagged: equal protection

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New Jersey Marriage Equality Part II: When Lewis Met Windsor

United States v. Windsor, – U.S. –, 133 S.Ct. 2675 (2013), invalidated the federal Defense of Marriage Act (DOMA) on somewhat murky constitutional grounds. It also provided the catalyst for this month’s move to marriage equality under state constitutional law in New Jersey. But it did so in a most curious way.

In Lewis v. Harris, 908 A.2d 196 (N.J. 2006), a unanimous New Jersey Supreme Court had held that same-sex couples could not be denied the equal rights and benefits guaranteed by the New Jersey constitution. However, a four-person majority in Lewis demurred as to whether the state had to allow same-sex couples to marry, allowing the legislature instead to choose to create a new status that would provide the same rights and benefits as marriage, but with a different name. In short order the legislature enacted a Civil Union Act, which became effective in 2007.

From the outset, it was clear to marriage equality advocates that that civil union would not and could not convey the equal rights and benefits that Lewis v. Harris mandated. The New Jersey Civil Union Review Commission held hearings and made extensive findings to that effect, unanimously. But how to persuade either the courts or the legislature to make the move all the way to marriage equality? Both legislative and judicial mechanisms were deployed. As to litigation, there was an initial attempt in 2010 to return the matter directly to the New Jersey Supreme Court, by way of a motion in aid of litigant’s rights filed in Lewis v. Harris. It failed because the court determined, on a 3-3 vote, that an evidentiary record was necessary. 202 N.J. 340 (2010). It is this evidentiary trial process that Windsor short-circuited. Read More

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New Jersey Crosses the Finish Line to Marriage Equality – Maybe

Same-sex marriage became legal in New Jersey at 12:01 am on Monday, October 21. Wedding ceremonies are everywhere. The process may not be over, however; there are tactical decisions yet to be made as to how best to solidify and clarify the win.

It was a roundabout victory, achieved via a Superior Court decision last month, in which Judge Mary Jacobson held that civil union did not satisfy a state constitutional mandate of equal protection established in Lewis v. Harris (N.J. 2006). There followed, on Friday, October 18, a unanimous state Supreme Court ruling denying a motion for stay of Judge Jacobson’s order. So it’s legal for same-sex couples to marry here, but there is no a ruling on the merits by the state Supreme Court. That’s the problem. Read More

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Viewpoint, Voting, and Structuring the Electorate

I am delighted to join the blogging community of Concurring Opinions for the month of April.  Thanks to Solangel Maldonado and Daniel Solove for their gracious invitation.

Denying voting rights to citizens with felony convictions has gotten a bad rap. The reason it’s not worse is because that rap is based on only half the story.  Anyone familiar with the complexion of our prison population knows that felon disfranchisement laws extend striking racial disparities to the electoral arena.  Less known, however, is that citizens with felony convictions are excluded from the electorate, in part, because of perceptions about how this demographic might vote or otherwise affect the marketplace of ideas.  In other words, citizens with felony convictions are denied the right to vote because of their suspected viewpoint.

Picking up on this point earlier this year, Michael Dorf highlighted a dispute between Republican presidential candidates Mitt Romney and Rick Santorum about which of them held the most conservative position concerning the voting rights of citizens convicted of a felony.  Inventing a criminal persona named Snake, Dorf queried what issues might provoke such a person to vote: Lower protections for private property or public safety? Redistribution of public resources from law enforcement to education, health, or recreation?  Elimination of certain criminal laws?  I can fathom many other lawful motivations for voting.  However, as Dorf points out (and decidedly rejects), the underlying objection to allowing citizens with felony convictions to vote is based on an assumption that, if they could vote, they would express self-serving and illegitimate interests. In other words, the viewpoint that felons would express through voting has no place in the electoral process.

I have always assumed that my viewpoint was precisely what I and other voters are supposed to express at the ballot box.  Whether that viewpoint is shared, accepted, condoned or vehemently disdained and abhorred by others is irrelevant to the right to vote.  Not so for citizens with felony convictions.  This group of citizens is presumed to possess deviant views that justify their exclusion from the electorate and the denial of a fundamental right. Read More

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Lewis v. Harris II — “civil union” versus “marriage”, one more time

Last month, on behalf of several same-sex couples, Lambda Legal filed a “Petition in Aid of Litigants’ Rights”  with the New Jersey Supreme Court, asking for further relief in Lewis v. Harris, 908 A.2d 196 (N.J. 2006).    The petition argues that the state’s Civil Union Law, created in 2006,  has utterly failed to create the constitutionally required equality for same-sex couples.  It requests the court to revisit the matter forthwith and order the state to recognize marriage for same-sex couples.

In 2006 in Lewis v.  Harris, the court held 7 – 0  that New Jersey’s constitution as a matter of equal protection (although not as a fundamental right) required the state to provide all the rights and benefits of marriage to committed same-sex couples, and also some kind of full legal recognition — the already-existing “domestic partnership” regime, with its limited benefits and different structure, was constitutionally insufficient.  But the court split 4 – 3 on whether to require the legislature to include same-sex couples within the legal definition of marriage, or to permit the legislature in its discretion instead to create a new legal institution for same-sex couples.  The legislature (very quickly) chose the latter course, enacting New Jersey’s Civil Union Law.

Three years later, the March 2010 pleading challenges that law as constitutionally inadequate.  It argues that the separate institution of civil union does not convey to same-sex couples and their families the important though intangible status of marriage, and that the separate-but-equal approach stigmatizes them in an ongoing way; that same-sex couples and their families must expend considerable effort and suffer considerable embarrassment claiming the equal rights that “civil union” is supposed to provide; and that in daily encounters, failures of others to recognize “civil union”, whether inadvertent or deliberate and feigned, regularly result in not being accorded rights and benefits equivalent to those of different-sex married couples, the goal that civil union is required to achieve.

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