On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-15-03.
The opinion of the court was delivered by: Skillman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman, Collester and Parrillo.
The issue presented by this appeal is whether the New Jersey Constitution compels the State to allow same-sex couples to marry. We conclude that the statutory limitation of the institution of marriage to members of the opposite sex does not violate our Constitution.
Plaintiffs are seven same-sex couples. Defendants are state officials with supervisory responsibilities relating to local officials' issuance of marriage licenses. Plaintiffs' complaint alleges that each couple applied for a marriage license in the municipality in which they reside, but the clerk refused to issue the license because New Jersey law does not authorize a marriage between members of the same sex. Plaintiffs claim that the denial of their applications for marriage licenses violates their rights of privacy and equal protection of the law protected by the New Jersey Constitution. Plaintiffs do not contend that New Jersey's marriage statutes authorize a marriage between members of the same sex or that the limitation of marriage to members of the opposite sex violates the United States Constitution. As relief for the claimed violations of their state constitutional rights, plaintiffs sought a mandatory injunction compelling the defendant state officials to provide them access to the institution of marriage on the same terms and conditions as a couple of the opposite sex.
Defendants filed a motion to dismiss plaintiffs' complaint pursuant to R. 4:6-2(e) on the ground that it fails to state a claim upon which relief can be granted. Plaintiffs filed a cross-motion for summary judgment. After oral argument, defendants' motion was converted to a motion for summary judgment.
The trial court issued a comprehensive written opinion rejecting plaintiffs' claims and upholding the constitutionality of New Jersey's statutory provisions that only allow members of the opposite sex to marry. In rejecting plaintiffs' claim that they have a fundamental right to marry and that the State violated this right by refusing to issue them marriage licenses, the court stated:
The right to marry has always been understood in law and tradition to apply only to couples of different genders. A change in that basic understanding would not lift a restriction on the right, but would work a fundamental transformation of marriage into an arrangement that could never have been within the intent of the Framers of the 1947 Constitution. Significantly, such a change would contradict the established and universally accepted legal precept that marriage is the union of people of different genders.
In rejecting plaintiffs' equal protection claim, the court stated:
Plaintiffs, like anyone else in the state, may receive a marriage license, provided that they meet the statutory criteria for marriage, including an intended spouse of the opposite gender. Plaintiffs are, in that sense, in the same position as all other New Jersey residents. The State makes the same benefit, mixed-gender marriage, available to all individuals on the same basis. Whether or not plaintiffs wish to enter into a mixed-gender marriage is not determinative of the statute's validity. It is the availability of the right on equal terms, not the equal use of the right that is central to the constitutional analysis. Plaintiffs seek not to lift a barrier to marriage, but to change its very essence.
Based on this opinion, the trial court entered final judgment dismissing plaintiffs' complaint.
During the pendency of this appeal, the Legislature enacted the Domestic Partnership Act, L. 2003, c. 246, which confers substantial legal rights upon same-sex couples who enter into domestic partnerships corresponding in many respects to the rights of opposite-sex couples who marry. This new legislation, which was enacted on January 12, 2004 and became effective on July 10, 2004, L. 2003, c. 246, § 60, is based on legislative findings and declarations that "[t]here are a significant number of individuals in this State who choose to live together in important personal, emotional and economic committed relationships with another individual," N.J.S.A. 26:8A-2(a); that "[t]hese familial relationships, which are known as domestic partnerships, assist the State by their establishment of a private network of support for the financial, physical and emotional health of their participants," N.J.S.A. 26:8A-2(b); and that "[b]ecause of the material and other support that these familial relationships provide to their participants, the Legislature believes that these mutually supportive relationships should be formally recognized by statute, and that certain rights and benefits should be made available to individuals participating in them," N.J.S.A. 26:8A-2(c). The Domestic Partnership Act also contains a legislative declaration that:
The need for all persons who are in domestic partnerships, regardless of their sex, 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 and to cope with adversity when a medical emergency arises that affects a domestic partnership. [N.J.S.A. 26:8a-2(d).]
To accomplish these legislative objectives, the Domestic Partnership Act provides that members of the same-sex who "have a common residence and are otherwise jointly responsible for each other's common welfare as evidenced by joint financial arrangements or joint ownership of real or personal property,"
N.J.S.A. 26:8A-4(b)(1), who "agree to be jointly responsible for each other's basic living expenses during the domestic partnership," N.J.S.A. 26:8A-4(b)(2), and who satisfy the other statutory prerequisites of such a State-sanctioned union, see N.J.S.A. 26:8A-4(b)(3) to (9), are entitled to receive a Certificate of Domestic Partnership, N.J.S.A. 26:8A-8(b). Upon issuance of this certificate, a patient's domestic partner and his or her children have the same right of visitation in a health care facility as a patient's spouse or children.
N.J.S.A. 26:2H-12.22. In addition, a domestic partner is authorized to consent to an autopsy upon the body of his or her partner, N.J.S.A. 26:6-50, and has the same right as a spouse to consent to donation of a deceased domestic partner's organs for statutorily approved purposes, N.J.S.A. 26:6-58(b)(1). The Domestic Partnership Act also amends the State's tax laws to give domestic partners the same exemption from the State's inheritance tax provided to married couples, N.J.S.A. 54:34-1(f); N.J.S.A. 54:34-2(a); N.J.S.A. 54:34-1(j), the same $1,000 exemption from the State gross income tax that can be claimed for a spouse who does not file a separate return, N.J.S.A. 54A:3-1, and the right to claim a domestic partner as a "dependent" under the Gross Income Tax Act, N.J.S.A. 54A:1-2(e). Moreover, a domestic partner of a State employee is entitled to the same benefits under the State pension laws and State Health Benefits Program as a spouse, N.J.S.A. 18A:66-2; N.J.S.A. 43:6A-3; N.J.S.A. 43:15A-6; N.J.S.A. 43:16A-1; N.J.S.A. 52:14-17.26;
N.J.S.A. 53:5A-3, and private insurance companies that provide dependent coverage for health, hospital, medical and dental expenses benefits must provide such coverage for a covered person's domestic partner, N.J.S.A. 17:48A-7aa; N.J.S.A. 17:48D-9.5; N.J.S.A. 17:48E-35.26; N.J.S.A. 17B:26-2.1x; N.J.S.A. 17B:27-46.1bb; N.J.S.A. 17B:27A-7.9; N.J.S.A. 17B:27A-19.12; N.J.S.A. 26:25-4.27; N.J.S.A. 26:8A-11; N.J.S.A. 34:11A-20. In addition, the Act amends the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42, to extend the prohibitions of that statute to discrimination on the basis of domestic partnership status. L. 2003, c. 246, § 12.
As a result of enactment of the Domestic Partnership Act, which extends many of the economic benefits and regulatory protections of marriage to persons of the same sex who enter into domestic partnerships, plaintiffs may now avoid many of the adverse consequences of being denied the opportunity to marry alleged in their complaint, such as denial of the right to participate in family insurance plans, denial of hospital visitation rights, denial of the right to make health care decisions when their partner is incapacitated, denial of the right to bury and control the disposition of a partner's remains, and denial of the benefit of the protections against discrimination provided by the LAD, by entering into domestic partnerships. The record does not indicate whether any of the plaintiff couples have entered into or plan to enter into domestic partnerships because the case was heard in the trial court before enactment of the Domestic Partnership Act. Consequently, this case does not involve any claim of a denial of constitutional rights to same-sex domestic partners on the ground that they are not afforded all the benefits and rights of opposite-sex married couples. Rather, plaintiffs' claim is that even if the Domestic Partnership Act conferred all the benefits and legal rights of marriage, the New Jersey Constitution would nevertheless compel recognition of same-sex marriage.
In reviewing the constitutionality of the statutes that limit marriage to members of the opposite sex, as in reviewing any other statute, we must keep in mind that those provisions "represent the considered action of a body composed of popularly elected representatives" and therefore are entitled to a strong presumption of validity. N.J. Sports & Exposition Auth. v. McCrane, 61 N.J. 1, 8 (1972), appeal dismissed sub. nom., Borough of E. Rutherford v. N.J. Sports & Exposition Auth., 409 U.S. 943, 93 S.Ct. 270, 34 L.Ed. 2d 215 (1972). This presumption "can be rebutted only upon a showing that the statute's 'repugnancy to the Constitution is clear beyond a reasonable doubt.'" Hamilton Amusement Ctr. v. Verniero, 156 N.J. 254, 285 (1998) (quoting Harvey v. Bd. of Chosen Freeholders, 30 N.J. 381, 388 (1959)), cert. denied, 527 U.S. 1021, 119 S.Ct. 2365, 144 L.Ed. 2d 770 (1999). The personal views of the members of the court concerning "the wisdom or policy of a statute" should play no part in determining its constitutionality. N.J. Sports & Exposition Auth., supra, 61 N.J. at 8. A constitution is not simply an empty receptacle into which judges may pour their own conceptions of evolving social mores. "To yield to the impulse to [invalidate legislation merely because members of the court disapprove of its public policy] is to subvert the sensitive interrelationship between the three branches of government which is at the heart of our form of democracy." Vornado, Inc. v. Hyland, 77 N.J. 347, 355 (1978), appeal dismissed sub. nom., Vornado, Inc. v. Degnan, 439 U.S. 1123, 99 S.Ct. 1037, 59 L.Ed. 2d 84 (1979). Consequently, our personal views of the legislative decision to limit the institution of marriage to members of the opposite sex are irrelevant. The only question is whether this legislative decision violates a specific constitutional provision.
Plaintiffs' claim of a constitutional right to recognition of same-sex marriage is based on article I, paragraph 1, of the New Jersey Constitution, which provides:
All 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, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness.
Our Supreme Court has held that this paragraph confers state constitutional rights to due process and equal protection of the law. Sojourner A. v. N.J. Dep't of Human Servs., 177 N.J. 318, 332 (2003); Greenberg v. Kimmelman, 99 N.J. 552, 568 (1985). Plaintiffs invoke both of these rights in support of their challenge to the limitation of the institution of marriage to members of the opposite sex. We address plaintiffs' due process claim in section I of this opinion and their equal protection claim in section II.
Article I, paragraph 1, protects both procedural and substantive due process rights. See Doe v. Poritz, 142 N.J. 1, 99 (1995); Greenberg, supra, 99 N.J. at 568-69. The substantive due process rights protected by this provision include the right of privacy. See Sojourner A., supra, 177 N.J. at 332-33; Greenberg, supra, 99 N.J. at 567-68, 571-72. This right of privacy "embraces the right to make procreative decisions . . . [and] the right of consenting adults to engage in sexual conduct." Greenberg, supra, 99 N.J. at 571-72 (citations omitted).
Our Supreme Court has held that the due process and privacy protections of article I, paragraph 1, also include the right of members of the opposite sex to marry. Ibid. In fact, the Court has characterized this right as "fundamental." J.B. v. M.B., 170 N.J. 9, 23-24 (2001); In re Baby M., 109 N.J. 396, 447 (1988). However, the Court has never considered whether the New Jersey Constitution confers a right to marry upon members of the same sex.
This court indirectly rejected the view that same-sex couples have a constitutional right to marry in a decision sustaining the validity of provisions of the State Health Plan that denied health benefits to same-sex partners that were extended to spouses of married public employees. Rutgers Council of AAUP Chapters v. Rutgers, 298 N.J. Super. 442, 452-62 (App. Div. 1997), certif. denied, 153 N.J. 48 (1998). Relying upon decisions in other jurisdictions that have rejected same-sex couples' claims of a constitutional right to marry, we concluded that the determination whether to extend the same benefits to same-sex partners as to spouses involves "political and economic issues to be decided by the elected representatives of the people." Id. at 462.
Other jurisdictions have expressly rejected constitutional challenges to statutes that limit the institution of marriage to members of the opposite sex. See, e.g., Standardt v. Superior Court ex rel. Maricopa, 77 P.3d 451 (Ariz. Ct. App. 2003), review denied (Ariz. 2004); Dean v. Dist. of Columbia, 653 A.2d 307 (D.C. 1995); Morrison v. Sandler, 821 N.E.2d 15 (Ind. Ct. App. 2005); Jones v. Hallahan, 501 S.W.2d 588 (Ky. Ct. App. 1973); Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971), appeal dismissed for want of a substantial federal question, 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed. 2d 65 (1972); In re Cooper, 592 N.Y.S.2d 797, 799-801 (App. Div.), appeal dismissed, 624 N.E.2d 696 (N.Y. 1993); Singer v. Hara, 522 P.2d 1187 (Wash. Ct. App.), review denied, 84 Wash. 2d 1008 (Wash. 1974). In Singer, the court concluded that the limitation of the institution of marriage to members of the opposite sex "is based upon the state's recognition that our society as a whole views marriage as the appropriate and desirable forum for procreation and the rearing of children," 522 P.2d at 1195, and that "marriage is so clearly related to the public interest in affording a favorable environment for the growth of children that we are unable to say that there is not a rational basis upon which the state may limit the protection of its marriage laws to the legal union of one man and one woman," id. at 1197. Other courts that have rejected challenges to the constitutionality of the limitation of marriage to members of the opposite sex also have relied upon the role that marriage plays in procreation and in providing the optimal environment for child rearing. See Standhardt, supra, 77 P.3d at 461-64; Dean, supra, 653 A.2d at 333; Morrison, supra, 821 N.E.2d at 23-35; Nelson, supra, 191 N.W.2d at 186.
The only state supreme court decision that has declared the limitation of the institution of marriage to members of the opposite sex to be unconstitutional is Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941 (Mass. 2003), which is discussed later in this opinion. See also Opinions of the Justices to the Senate, 802 N.E.2d 565 (Mass. 2004). In addition, the Vermont Supreme Court held that denial of the benefits incident to marriage to same-sex domestic partners violated the "common benefits" provision of the Vermont Constitution, but that this constitutional violation could be remedied by enactment of a domestic partnership act or other legislation that extends the benefits that flow from marriage to same-sex couples. Baker v. State, 744 A.2d 864, 886-87 (Vt. 1999). The Vermont Legislature subsequently enacted legislation authorizing domestic partnerships to comply with this mandate. Vt. Stat. Ann. tit. 15 §§ 1201-07 (2004). The Hawaii Supreme Court held that the limitation of marriage to members of the opposite sex established a sex-based classification that required strict scrutiny under equal protection analysis, Baehr v. Lewin, 852 P.2d 44 (Haw. 1993), and on remand, a trial court declared this limitation to be violative of the Hawaii Constitution, but before the case was brought back before the Hawaii Supreme Court, the electorate approved a constitutional amendment prohibiting same-sex marriage, Haw. Const. art. I, § 23. See William C. Duncan, Whither Marriage in the Law?, 15 Regent L. Rev. 119, 119-20 (2003).*fn1
Our Supreme Court has indicated that in determining whether a claimed right is entitled to protection as a matter of substantive due process, a court should "look to 'the traditions and [collective] conscience of our people to determine whether a principle is so rooted [there] . . . as to be ranked as fundamental.'" King v. S. Jersey Nat'l Bank, 66 N.J. 161, 178 (1974) (quoting Griswold v. Connecticut, 381 U.S. 479, 493, 85 S.Ct. 1678, 1686, 14 L.Ed. 2d 510, 520 (1965) (Goldberg, J., concurring)). Similarly, the Supreme Court of the United States has recently reaffirmed that "the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, 'deeply rooted in this Nation's history and tradition,' and 'implicit in the concept of ordered liberty,' such that 'neither liberty nor justice would exist if they were sacrificed.'" Washington v. Glucksberg, 521 U.S. 702, 720-21, 117 S.Ct. 2258, 2268, 138 L.Ed. 2d 772, 787-88 (1997) (citations omitted). The Court noted that confining constitutional protection to "fundamental rights found to be deeply rooted in our legal tradition . . . tends to rein in the subjective elements that are necessarily present in due-process judicial review." Id. at 722, 117 S.Ct. at 2268, 138 L.Ed. 2d at 788.
Marriage between members of the same sex is clearly not a "fundamental right . . . deeply rooted in our legal tradition." To the contrary, as we observed in M.T. v. J.T., 140 N.J. Super. 77, 83-84 (App. Div.), certif. denied, 71 N.J. 345 (1976):
[A] lawful marriage requires the performance of a ceremonial marriage of two persons of the opposite sex, a male and a female. Despite winds of change, this understanding of a valid marriage is almost universal. . . .
. . . The historic assumption in the application of common law and statutory strictures relating to marriages is that only persons who can become 'man and wife' have the capacity to enter marriage.
Plaintiffs' claim that a right to marriage between members of the same sex may be found in article I, paragraph 1, of the New Jersey Constitution has no foundation in its text, this Nation's history and traditions or contemporary standards of liberty and justice. It certainly is an idea that would have been alien to the delegates to the 1947 Constitutional Convention who proposed this provision and to the voters who approved it. Although there has been a substantial liberalization of public attitudes towards the rights of homosexuals in the intervening fifty-eight years, there is no current public consensus favoring recognition of marriages between members of the same sex. In fact, in 1996 Congress enacted the Defense of Marriage Act (DOMA), Pub. L. No. 104-199, 110 Stat. 2419, which provides that no State shall be required to give effect under the Full Faith and Credit Clause of the United States Constitution, U.S. Const. art. IV, § 1, to any other state's law that recognizes same-sex marriage, 28 U.S.C.A. § 1738C, and that all Acts of Congress that refer to "marriage" or "spouse" shall be interpreted to apply only to mixed-gender couples, 1 U.S.C.A. § 7. And as previously discussed, our Legislature recently enacted the Domestic Partnership Act, which confers substantial legal rights upon same-sex couples who enter into domestic partnership unions but stops short of recognizing the right of members of the same sex to marry.
Plaintiffs have failed to identify any source in the text of the New Jersey Constitution, the history of the institution of marriage or contemporary social standards for their claim that the Constitution mandates State recognition of marriage between members of the same sex. Plaintiffs describe marriage as simply a "compelling and definitive expression of love and commitment that can occur between two adults"--without any reference to the historical, religious or social foundations of the institution--and argue that because two members of the same sex have the same capacity as members of the opposite sex to "make a strong and meaningful lifetime commitment to each other," the State must extend the same recognition to same-sex marriage as a marriage between members of the opposite sex. However, our society and laws view marriage as something more than just State recognition of a committed relationship between two adults. Our leading religions view marriage as a union of men and women recognized by God, see Larry Cat< backer,="" religion="" as="" the="" language="" of="" discourse="" of="" same="" sex="" marriage,="" 30="" cap.="" u.l.="" rev.="" 221,="" 234-36="" (2002),="" and="" our="" society="" considers="" marriage="" between="" a="" man="" and="" woman="" to="" play="" a="" vital="" role="" in="" propagating="" the="" species="" and="" in="" providing="" the="" ideal="" environment="" for="" raising="">*fn2
See George W. Dent, Jr., The Defense of Traditional Marriage, 15 J.L. & Pol., 581, 593-601 (1999); William C. Duncan, The State Interests in Marriage, 2 Ave Maria L. Rev. 153, 164-72 (2004); Monte Neil Stewart, Judicial Redefinition of Marriage, 21 Canadian J. Fam. L., 11, 41-85 (2004).
Indeed, the very cases that plaintiffs rely upon for the proposition that there is a fundamental right to marry reflect these common understandings of the religious and social foundations of marriage that limit the institution to members of the opposite sex. For example, in Turner v. Safley, 482 U.S. 78, 96, 107 S.Ct. 2254, 2265, 96 L.Ed. 2d 64, 83 (1987), the Court noted that "many religions recognize marriage as having spiritual significance; . . . and . . . , therefore, the commitment of marriage may be an exercise of religious faith as well as an expression of personal dedication." In Zablocki v. Redhail, 434 U.S. 374, 384, 98 S.Ct. 673, 680, 54 L.Ed. 2d 618, 629 (1978), the Court "recognized that the right 'to marry, establish a home and bring up children' is a central part of the liberty protected by the Due Process Clause," and described marriage "as 'fundamental to the very existence and survival of the race.'" (Citations omitted).
The conclusion that marriage between members of the same sex has no historical foundation or contemporary societal acceptance and therefore is not constitutionally mandated is supported by decisions in other jurisdictions that have addressed the issue. In Standhardt, supra, 77 P.3d at 459, the court concluded that "[a]lthough same-sex relationships are more open and have garnered greater societal acceptance in recent years, same-sex marriages are neither deeply rooted in the legal and social history of our Nation or state nor are they implicit in the concept of ordered liberty." Similarly, in Dean, the court concluded that "same-sex marriage is not a 'fundamental right' protected by the due process clause, because that kind of relationship is not 'deeply rooted in this Nation's history and tradition.'" 653 A.2d at 331 (quoting Moore v. City of E. Cleveland, 431 U.S. 494, 503, 97 S.Ct. 1932, 1938, 52 L.Ed. 2d 531, 540 (1977)); see also Nelson, supra, 191 N.W.2d at 186 (noting that "[t]he institution of marriage as a union of man and woman, uniquely involving the procreation and rearing of children within a family, is as old as the book of Genesis.").
Plaintiffs argue that the State's contention that the essence of the institution of marriage is a State-sanctioned union between members of the opposite sex constitutes "circular reasoning," -- a characterization adopted by the dissent in its discussion of decisions in other jurisdictions that have upheld the limitation of the institution of marriage to members of the opposite sex. See infra, ___ N.J. Super. at ___ (slip op. at 7-8). However, plaintiffs' argument proceeds along the same kind of circular path that they accuse the State of following. Plaintiffs start with the premise that there is no difference between a "compelling and definitive expression of love and commitment" between members of the same sex and a marriage between members of the opposite sex, and then argue from this premise that the State has failed to carry its burden of justifying the limitation of the institution of marriage to a man and a woman. But the significant difference between these arguments is that the State's argument is grounded on historical tradition and our nation's religious and social values, while plaintiffs' argument is based on nothing more than their own normative claim that society should give unions between same-sex couples the same form of recognition as marriages between members of the opposite sex.
The same form of constitutional attack that plaintiffs mount against statutes limiting the institution of marriage to members of the opposite sex also could be made against statutes prohibiting polygamy. Persons who desire to enter into polygamous marriages undoubtedly view such marriages, just as plaintiffs view same-sex marriages, as "compelling and definitive expression[s] of love and commitment" among the parties to the union. Indeed, there is arguably a stronger foundation for challenging statutes prohibiting polygamy than statutes limiting marriage to members of the opposite sex "because, unlike gay marriage, [polygamy] has been and still is condoned by many religions and societies."*fn3 Dent, supra, 15 J. L. & Pol. at 628. Nevertheless, courts have uniformly rejected constitutional challenges to statutes prohibiting polygamy on the grounds that polygamous marriage is offensive to our Nation's religious principles and social mores. Reynolds v. United States, 98 U.S. 145, 161-67, 25 L.Ed. 244, 248-51 (1878); Potter v. Murray City, 760 F.2d 1065, 1068-71 (10th Cir.), cert. denied, 474 U.S. 849, 106 S.Ct. 145, 88 L.Ed. 2d 120 (1985); see also State v. Green, 99 P.3d 820 (Utah 2004). In Reynolds, the Court stated:
Polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and African people. . . . [F]rom the earliest history of England polygamy has been treated as an offence against society.
. . . In the face of all this evidence, it is impossible to believe that the constitutional guaranty of religious freedom was intended to prohibit legislation in respect ...