gay marriage

Recently, the United States Supreme Court decided the case of Obergefell v. Hodges, holding that the United States Constitution requires the States to license marriages between two people of the same sex and to require States to recognize same-sex marriages performed out of state. Some may ask how this ruling affects gay and lesbian couples in New Jersey as far as New Jersey matrimonial and family law is concerned. It may surprise you, but from a practical standpoint this ruling has very little impact on those areas of New Jersey law. Below we discuss some of the legal background of gay marriage and civil unions in New Jersey and what changes we might expect as far as matrimonial law goes.

First, to be sure, the Obergefell case has sweeping implications in terms of Federal benefits and regulations. And that is somewhat beyond the scope of this article. New Jersey is powerless to change the Federal laws and the history of legislation and litigation in New Jersey is not directly concerned with remedying Federal recognition of same-sex marriage or unions. But this fact is relevant insofar as it is a background issue that was present throughout the years that same-sex marriage and civil unions were debated in New Jersey.

In any event, one of the reasons that this recent case has little impact on New Jersey matrimonial law is the fact that this issue has been litigated and debated in New Jersey for some time. New Jersey was the second state to implement a domestic partnership statutory scheme, after California. This was in 2003. Advocates for gay and lesbian rights sued the state and argued that the scheme violated their constitutional rights, i.e. it just wasn’t good enough because domestic partners had some limited rights but not the same rights as married couples. The NJ Supreme Court agreed and struck down the law and directed the New Jersey legislature to instead pass a new law, consistent with the New Jersey Constitution (notably, the NJ Constitution is different than the US Constitution and is said to generally afford more civil rights than those granted by the Federal Constitution). The Court pointed out that the state could not put same-sex couples in a position where their legal rights were inferior to opposite-sex couples. What transpired next was a legal and public debate about two key issues: (a) what to call same-sex domestic unions, and (b) whether the state really was treating them the same in the eyes of the law.

What transpired was the Civil Union Act, which, practically speaking, gave same-sex couples the exact same rights as married couples, without calling it “marriage”. There was debate on this, however. Several groups argued that in some respects the rights were not entirely the same. There was also a debate about whether calling it “civil union” as opposed to “marriage” was a constitutional violation in and of itself. There were several legislative proposals and legal claims that addressed both of those points, during the ensuing years. Fast forward to 2013, and a lower court in New Jersey held that New Jersey must allow same-sex couples to marry. At first, Gov. Chris Christie tried an emergent appeal and stay of the lower court ruling (i.e. hold off on issuing marriage licenses for now while the appeal is argued). When the stay was denied, Gov. Christie abandoned the issue and did not further challenge the lower court ruling.

Certainly, all of this took place before the recent US Supreme Court ruling on same-sex marriage. And this is why the Obergefell case does not really change anything in New Jersey – civil unions with near-identical rights were the law in New Jersey long ago, and even same-sex marriages were the law since 2013. However, there likely were local clerks who, between 2013 and the recent US Supreme Court case, would not issue a marriage license but rather a civil union license (which was already a violation of New Jersey law). Now, it is clear that marriage licenses, by that name, would be issued.