Constitution Check: Are benefits the key to equal marriage rights?

Lyle Denniston explains how a New Jersey judge’s decision provides a potential legal template for other courts in other states to decide marriage-equality questions.

Photo by Flickr user Fibonacci Blue

Photo by Flickr user Fibonacci Blue

THE STATEMENT AT ISSUE

“Following the U.S. v. Windsor decision of the United States Supreme Court and the subsequent implementation of that decision by several federal agencies, same-sex couples are only afforded the same rights and benefits enjoyed by opposite-sex couples if they are married. Since New Jersey currently denies marriage to same-sex couples, same-sex civil union partners in New Jersey are ineligible for many federal marital benefits. The parallel legal structures created by the New Jersey Legislature therefore no longer provide same-sex couples with equal access to the rights and benefit enjoyed by married heterosexual couples, violating … the New Jersey Constitution’s equal protection guarantee.”

 – Mercer County (N.J.) Superior Court Judge Mary C. Jacobson, of Trenton, in a decision requiring the state to allow gays and lesbians to marry. The ruling on September 27 came in the case of Garden State Equality v. Dow.

WE CHECKED THE CONSTITUTION, AND…

The Constitution, as currently interpreted, does not provide an equal right for gays and lesbians to marry. The Supreme Court in June did not take the option of declaring such a right, leaving that open for now. But the Justices’ decision in the case striking down a key part of the federal Defense of Marriage Act nevertheless is beginning to provide the foundation for just such a right. The process is rather complex, but its potential is clear: If there is a right of equal access to marriage benefits provided by government, that can lead to an equal right to marry.

This development, emerging in only a few instances so far, might quickly expand same-sex marriage rights to five more states, pushing the total to 18. Those five are the states that have already assured same-sex partners that they will get all of the benefits of marriage—except marriage itself. The benefits, for those couples, result from official recognition of their “civil unions” or “domestic partnerships.”

Of course, the campaign to gain marriage equality for gays and lesbians is a nationwide effort, and there are only three ways that such a right can be brought into being for every state. One would be a definitive decision by the Supreme Court establishing such a right; that does not seem likely in the near future. Another would be a constitutional amendment guaranteeing marriage equality, and that appears to be out of the question. And the third would be for every state, acting on its own, to enact marriage equality; that, too, is not going to happen.

But if there is to be a significant extension of marriage equality, one state at a time, the emerging interpretation some lower court judges are giving to the Supreme Court’s June 26 decision in U.S. v. Windsor is the most likely alternative.

That decision is being read to mean that, if government confers benefits on those who get married, those benefits cannot be denied on the basis of second-class legal status for gays and lesbians who have chosen to commit themselves to a life together.

That does amount to an expansion of what the Supreme Court actually decided. Justice Anthony M. Kennedy, in the lead opinion in that case, said explicitly that federal benefits that go with marriage were being opened only to same-sex couples who are or who get married under state law. That might have been interpreted to suggest that, at least for the time being, if states provide marital benefits and restrict them to opposite-sex couples who marry, that would not violate the Windsor decision.

But the very sweeping language about equality in the Kennedy opinion appears to have created an opening for lower courts to read more into the opinion—that is, a demand for a stronger justification when marriage benefits are provided to some couples but not others, on the theory that a couple’s lasting commitment is entitled to dignity and legitimacy regardless of sexual orientation.

So far, this notion has been carried the furthest by a state judge in New Jersey, Mercer County Superior Court Judge Mary C. Jacobson. (Her decision last month is not the last word on the issue in her state, since Governor Chris Christie’s legal team is seeking to move the issue quickly to the state Supreme Court.)

Jacobson started with the fact that the state Supreme Court, in a decision three years ago in the case of Lewis v. Harris, ruled that same-sex couples were entitled to all of the benefits and privileges that go with marriage, no matter what legal name or status the state legislature gave to the unions of such couples. The legislature, reacting to that decision, then chose not to recognize same-sex marriage as such, but to give same-sex couples the legal status of being in a “civil union” with full rights but not marriage.

This dual structure regarding marriage, the Trenton judge said, had been a permissible form of equality, at least for access to martial benefits in New Jersey. But it ceased to be permissible, she concluded, once the Supreme Court issued its ruling in the Windsor case.

Once the Supreme Court created a guarantee of marital equality for access to some 1,000 federal marital benefits, that opened a whole new range of benefits that—in New Jersey—would only be open to married opposite-sex couples, and not to same-sex couples joined in civil unions, the judge noted.

Federal agencies, in implementing the Windsor decision, have uniformly agreed, so far, that they will not make federal marital benefits available to couples in same-sex unions; they have to be legally married to qualify, Jacobson recognized.

Since the state ruling in Lewis v. Harris in 2006 mandates that same-sex couples have the same rights as opposite-sex couples, and since the national situation has changed with Windsor and its implementation, the continuing denial of marital rights to same-sex couples in New Jersey denies them equal rights, the judge concluded.

“Every day that the state does not allow same-sex couples to marry, [those couples] are being harmed, in violation of the clear directive of [the] Lewis [decision],” Jacobson found. “The court cannot ignore that the state’s current system of classification assigns to same-sex couples a label distinct from marriage—a label that now directly affects the availability of federal marriage benefits to those couples.”

The “parallel legal structures” for marriage, the judge declared, must end.

Without deciding that the national Constitution guarantees marriage equality, this judge’s approach accomplishes the same thing, at least for New Jersey—and provides a potential legal template for other courts in other states to do the same.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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