I know I have written a decent amount on the topic already, but privacy rights cases have long been an interest of mine, and there is simply a lot to say about them. You can say a decent amount about the topic and still leave a lot out. This seems to be the case here. And, hey, it's my blog. Thus, I will again address the recent NJ case involving equal rights for same sex unions.
First, it was mentioned in comments that there is a chance that a case like this would be deemed to be a federal question ... the state supreme court is not necessarily the last stop. This is so if the argument/reasoning seemed to pattern a federally based one. The ruling itself noted: "Plaintiffs contend that the State's laws barring members of the same sex from marrying their chosen partners violate the New Jersey Constitution. They make no claim that those laws contravene the Federal Constitution." This might not do the trick, but it is the core of my assumption the Supremes would not be involved.
The provision at stake harkens back to the 1844 Constitution, changed in the 1940s update only to remove the sex specific language:
All men [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, acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness
This was deemed to cover those rights "so deeply rooted in the traditions and collective conscience of our people that [they] must be deemed fundamental," basically mirroring the understanding of "due process." The ruling cited a 1892 NJ case that spoke of the "general recognition of those absolute rights of the citizen which were a part of the common law," of which, voting was not included. [A debatable statement; voting rights are currently held to be fundamental under the US Constitution.] A bit of citation following led me to STATE OF NEW JERSEY, ex rel. STATE BOARD OF MILK CONTROL (1935), which directly held "due process" was secured, even without an appeal to the 14th Amendment. This surely was the law in the late 1800s as well.
Security of common law rights was also addressed by the original 1776 NJ Constitution, which secured the "common law of England," which was generally held to include basic inalienable rights. Thus, the Revolution was justified. The presence of certain rights that even a legislature could not overrule was controversial given the idea of parliamentary supremacy (see William Blackstone, implications of some comments by Edward Coke notwithstanding). This is surely the case when the rights are to be secured by judicial review. The more open-ended language of the 1844 provision therefore is notable. It patterns similar language in our Declaration of Independence, while have a more firm basis in binding law.
The concept of equal protection antedates the Fourteenth Amendment. It is implicit in a democratic form of government. The Declaration of Independence proclaimed that "All men are created equal," which must mean equality at the hands of government
-- Robinson v. Cahill (1973)
The Article I, Paragraph 1 language at issue is now firmly held by NJ precedent to include due process and equal protection rights. The idea that "due process" was a fundamental right was not some creation of the 1970s ... it hearkened back to the Magna Charta in the 13th Century. Thus, it is far from shocking that the language has been interpreted to include such security. The right to marriage also fits snugly here, surely "deeply rooted in the traditions and collective conscience of our people." And, the term does develop. Thus, the status of women as well as things like testimonial privileges -- rather significant aspects often deemed fundamental to the union -- has undergone great changes.
[The ruling argued that "the liberty interest at stake is not some undifferentiated, abstract right to marriage, but rather the right of people of the same sex to marry." A more expansive reading "would eviscerate any logic behind the State's authority to forbid incestuous and polygamous marriages" except perhaps if childbearing was involved. This is lame and exaggerated ("eviscerate?") -- childbearing is not the only factor involved in limiting marriage in such cases, though even that would cover a lot of ground.*]
Equal protection also has long been deemed part of due process in particular and inalienable rights generally. Justice Accused, discussing slavery law, labeled the provision a "free and equal clause," though this was controversial at the time. This was partially so because some state constitutions expressly put in the word "equal" and slavery existed in the state at the time. The "all" implication and so forth however made it a reasonable argument. Time made it much more accepted. And, at any rate, the state did not challenge precedent on the point. Some seem to want each case to begin anew, "bad" law replaced even if is only an "as applied" matter.
The State does not argue that limiting marriage to the union of a man and a woman is needed to encourage procreation or to create the optimal living environment for children. Other than sustaining the traditional definition of marriage ...
There is a tendency in such cases to assume all states are basically the same, to not examine the specifics to its situation. This is foolhardy. DOMA might be blatantly unconstitutional, but it recognizes the fact that states can have their own marriage statutes. This would depend on their situation. Thus, NJ -- with a slew of securities both judicially and legislative for same sex couples -- might be different from a state where even same sex couples adopting would be deemed very touchy (or barred -- see Florida). And, when determining the "collective conscience" of the people, the court reasonably looked at the status of the law -- passed by their representatives or decided by those indirectly selected by them -- in that state.
The state here apparently relied on the argument that "a fundamental change in the meaning of marriage itself" is the job of the legislature. Clearly, since a myriad of securities are in place, supplying same sex couple with "marriage-like" rights didn't make the union "marriage." Ironically, the court noted the "evocative and important meaning to both parties" of the word "marriage." It held that "marriage" was separate from the rights and benefits thereof. Given intangibles are involved here, there is some truth to this. The state didn't say same sex couples could not raise children effectively etc. They were concerned about labels.
[It must be added that they probably also would argue that such developments should be open to change, not set in stone via constitutional rulings. All the same, if the state suddenly wishes to decrease the securities to same sex couples -- with justifications supplied -- arguably the seas can be pushed back, no? Constitutional liberties have been pushed back in various cases, including in the abortion arena, partially as a result of legislative actions. It simply is not true that there is some sort of "one way ratchet" here.]
If so there is no legitimate "governmental purpose in not affording the child of a same-sex parent, who is a volunteer firefighter or first-aid responder, tuition assistance when the children of married parents receive such assistance." The opinion therefore was eminently reasonable in noting that the state could not arbitrarily pick and choose, inequitably treat couple's children etc. just because the couple entered a same sex relationship, one deemed secured by state and federal constitutional law. States with less gay friendly laws might be different.
Sure, I again support the three justices who wished to go further. The majority went out of its way to suggest they were being careful, letting the legislature decide what to call the unions secured by the opinion. After doing something many call unwarranted judicial activism, it must have been nice to find something to point to -- hey, they are the ones who want to be activist! The partial dissent was right to say that a state authorized label is different, it can be inequitable when applied to some groups not others.
[The partial dissent cites a recent article by Ronald Dworkin that underlines the point. Such cultural "meaning" of marriage is a reality, but like cultural understanding of religious belief and various other things cannot be set in stone by the state. Though not directly saying as much, this suggests there is a clear "establishment clause" problem here. The article provides Dworkin's usual interesting view of things on two other topics as well.]
In other words, "intangibles" matter -- both sides know that, which is why the state opposed the full-fledged civil union approach as well. They know that this is deemed a step too far by some people, even if it amounts to an arbitrary matter of feeling better by giving same sex unions 3/4 of the pie. But, "marriage" always had a symbolic component, so going it slow in the way of the majority opinion here does have some merit. After all, the couples arguably can sue again if the state sets up a civil union regime, one without a rational "state interest" in supplying same sex couples this option alone.
To point to another criticism, some suggest such pragmatic concerns are arbitrary judicial lawmaking. But, it is how things are done, not just here. Law, in all its forms, is as imperfect as we are. And so it goes.
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* The dissent below amusingly noted Justice Scalia's changing "slippery slope analysis into a loop-de-loop" in Lawrence v. Texas. Binary unions were at issue here. It also noted that "the idea of marriage between persons of the same sex would have been alien both to those who drafted and those who ratified the New Jersey Constitution of 1947. But so were spaceships, computers and reproductive technology." Also, did it known in 1947 that the NJSC would in the 1970s recognize post-ops as member of a certain "sex," who can then marry the other "sex?" [case cited in opinion]. Things develop.
It also cited some law review articles that differentiate polygamy. One not cited notes "The burden that the practice of polygamy produces on polygamous wives, the children of polygamy, and the government far outweighs any claim that polygamists might have to the right outlined in Lawrence." ["Note, I Now Pronounce You Husband and Wives: Lawrence v. Texas and the Practice of Polygamy in Modern America," 11 Wm. & Mary J. Women & L. 131 (2004).]
Overall, that ruling is not quite as open-ended as some "loop-de-loop" sorts imply. This is so even if the issue can lead to interesting arguments.