Comparative References in the New Jersey Same-Sex Civil Union Case

by Roger Alford

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.

http://opiniojuris.org/2006/10/26/comparative-references-in-the-new-jersey-same-sex-civil-union-case/

5 Responses

  1. If I may be forgiven for repeating a comment I wrote on an earlier post by Professor Alford about this issue:

    (I add a reference below)

    Could it be – and I am expresssing no firm opinion here – that constitutional comparativism fails to figure significantly in gay marriage cases simply because the issue is not governed by constitutional law elsewhere, and because there is accordingly no material for comparison?

    To be sure, there are many countries that now know the institution of (some form of) gay marriage, but this has, to the best of my knowledge, always been done simply by statute, not by any exercise in constitutional interpretation. In fact, the German Federal Constitutional Court has said explicitly that the form of gay legal partnership created by statute was not ‘marriage’ in the sense of the constitution, and that there was no constitutional right to any such institution, but that the legislator was nevertheless entitled to establish it as a different concept.

    Again, I admit that many politicians tended to cast the issue in terms of human rights, but this was very largely a political, as opposed to a legal, point.

    The British government even argued that the institution of the civil partnerships was required under the ECHR, but Article 12 ECHR would seem to preclude any such claim (‘Men and women of marriageable age have the right to marry and to found a family according to the national laws governing the exercise of this right.’). [addition: this is demonstrated by the decision, and the review of the relevant authorities, by the English High Court in Wilkinson v. Kitzinger]

    So, my guess would be that even the most progressive US judges would have a hard time arguing that gay marriage could be established as a constitutional requirement on the strength of constitutional comparativism.

    But my knowledge in this area is hazy at best, so this is not a concluded view.

  2. Tobias,

    I don’t read the cases that way. The supreme courts in Washington, New York and New Jersey do not appear to be interested in what foreign courts are doing, other than the passing reference in the New Jersey decision noting the prevailing practice against same-sex marriage. The dissent in New York and the lower court in Washington State did look to comparative experience, but did not appear concerned with whether the result was achieved through legislative action or constitutional adjudication. The issue for them was community standards.

    One might say that these courts are selectively ignoring comparative experiences because it does not advance the cause of same-sex marriage. But that is not what these courts are doing. Those courts that uphold (New Jersey) or deny (New York and Washington) this right just are not interested in comparative experiences abroad.

    As I said in my last post, same-sex marriage is the opposite of juvenile death penalty in Roper: courts are not referencing comparative experiences abroad despite the obvious opportunities to do so. And even if they did, they would not advance the cause of expanding these rights. The issue of same-sex marriage tests the commitment of comparativists to a methodology or to a result.

    Roger Alford

  3. Roger —

    Setting aside the Missouri court’s opinion in Roper (which, as you know, I find distinguishable on the grounds that the 8th Amendment begs appeal to comparative practice by use of the term “unusual”) have state courts invoked foreign law or practice in other areas of individual rights? I am wondering if there is pattern in comparative/international borrowing at the state court level in these kinds of cases.

    By the way, what I find interesting in the NJ case is that the NJ Supremes are not much interested in what other U.S. states are doing. The reference to “borders” in the majority opinion seemed to me to refer to borders of the Garden State, not the U.S. So much for horizontal federalism.

    Peggy

  4. I wonder if someone ever bothered checking whether and how often high courts of countries other than the US look at precedents/laws/values of other countries to decide their own cases. I have a few examples in my mind, but I wonder whether there is some systematic data on this out there. It might be useful to determine whether US courts (federal and state) are an anomaly in this regard. Perhaps they are not. My sense is that high courts of civil law countries (which ar ethe majority fo teh world) are more reluctant than those of common law countrie sto do so.

  5. Peggy, I don’t know the answer to your question but I think it would be great to do an analysis of that topic.

    Cesare, yes there has been some analysis of that in various places. That had been the persistent complaint that the U.S. was a “lender” but not “borrower” in the transjudicial dialogue.

    Roger Alford

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