Comparative References in the New Jersey Same-Sex Civil Union Case
The New Jersey Supreme Court in Lewis v. Harris ruled that the equal protection provisions of the New Jersey Constitution require equality of treatment for same-sex couples. But it left to the legislature the decision whether to amend the marriage statutes or create a new statutory structure for civil unions.
In examining whether same-sex marriage is deeply rooted in New Jersey’s history and its people’s collective conscience, the Court noted that “the nation’s experience or the precedents of other states” may provide “guideposts and persuasive authority.” (pp. 25-26). But the Court made no suggestion that it would be appropriate to look abroad for guidance on New Jersey’s decision on this issue. The Court reasoned: “When looking for the source of our rights under the New Jersey Constitution, we need not look beyond our borders. Nevertheless, we do take note that no jurisdiction, not even Massachusetts, has declared that there is a fundamental right to same-sex marriage under the federal or its own constitution.” (p. 33) Then when it did look beyond its borders, the Court limited its comparative review to our national experience. The only passing reference in the majority opinion to comparative international experiences was to rebut three dissenting justices’ argument that same-sex couples should have the right not only to a civil union, but also to marriage. The Court stated that “[b]efore the Legislature has been given the opportunity to act, the dissenters are willing to substitute their judicial definition of marriage for the statutory definition, for the definition that has reigned for centuries, for the definition that is accepted in forty-nine states and in the vast majority of countries in the world.” (p. 61).
This is the third state supreme court decision involving same-sex marriage in the past four months. None of these decisions has given serious consideration to the arguments that we should reference comparative international experiences in constitutional adjudication.