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Ending the Failed Experiment: A High Court Marriage Challenge to Civil Unions in New Jersey

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In the wake of the pointed refusal by New Jersey's legislature to take action, Lambda Legal has returned to the New Jersey Supreme Court to win the freedom to marry. Lambda's attorneys filed a motion directly with the high court, asking it to bring New Jersey across the finish line to the equality that the constitution commands. The suit asks the Court to cure unconstitutional discrimination against lesbian and gay couples by finally ending their exclusion from marriage.

Representing the same committed loving couples it fought for in the last round, Lambda Legal reactivated its New Jersey marriage case, Lewis v. Harris, filing what's known as a "motion in aid of litigants' rights." That motion seeks to compel the state of New Jersey to follow the law and obey a high court order now more than three years old.

In October 2006, the New Jersey Supreme Court handed down a unanimous decision in which every justice agreed that New Jersey's constitution does not permit the state to continue depriving loving, committed lesbian and gay couples from equal rights. The Court directed the legislature to make it right, and fast. After years in court, the deadline was 180 days to give lesbian and gay New Jerseyans equal rights. The clearest path to equality at that time was to stop discriminating against couples who applied for marriage licenses. It still is. But the legislature chose another path, a novel mechanism called civil union.

It is now clear that civil unions do not work, and fall far short of the equality commanded by the constitution and ordered by the Supreme Court.

When the legislature set up the civil union experiment, it also set a control on that experiment, mandating a Civil Union Review Commission to monitor the civil union law and how it played out. The thirteen-member Commission included stakeholders from around the state and designees from state government: representatives from the Division on Civil Rights, the Office of the Attorney General, the Department of Human Services, the Department of Banking and Insurance, the Department of Health and Senior Services, and the Department of Children and Families.

Members of the Commission held numerous hearings around the state, generating about 900 pages of transcripts. They heard from 150 witnesses. They heard from New Jersey residents with civil unions, from children whose parents are limited to civil unions, and from medical, therapeutic, and legal experts about the harms inflicted by the inadequacy f civil union.

The Commission heard from people who had terrifying medical emergencies where they couldn't get doctors to understand that their partner had the right to speak for them and make decisions if they couldn't do so themselves.

The Commission heard that the civil union designation actually invites discrimination: for example, Commissioners heard from people who can't get health benefits at work, because the benefits plans are written to cover married spouses only--not for people in some unusual scheme called a "civil union." And then the Commission heard from union leaders about the virtually insurmountable barriers to negotiating separate civil union benefits coverage, which would be necessary for people who can't show they are "married."

The official Commission heard from people who had to "out" themselves in initial job interviews, by revealing they were in a civil union when they asked about job benefits, or who had to out themselves at jury duty because a simple question, "are you married?" has no simple answer--for them.

The Commissioners heard reams of evidence about confusion over civil unions. They heard overwhelming complaints about forms that ask for vital information in a precise way, and then give you no place to designate your civil union partner, followed by long explanations about civil unions to schools and doctors and insurance companies, and then the puzzled question back: "But you're not married, right?"

The Commissioners heard about other practical problems from the confusion around civil unions. They heard, for example, that families worry about traveling, because given how badly understood civil union has been in New Jersey (which made it up especially for lesbian and gay couples), what might happen when you travel to another state that doesn't even have them? Who would understand what they mean?

After all, unlike in 2006, no other state now has civil union. The two states that offered civil union when the Lewis case began have done away with it in favor of the freedom to marry itself, finding that civil union wasn't adequate, didn't work to fully protect families, and is far from equal. (Connecticut's Supreme Court overturned civil union in 2008 and ordered the freedom to marry, a decision later embraced by the legislature, and Vermont's legislature voted to scrap civil union and embrace marriage in 2009.)

The New Jersey Commission also heard from families, including many of Lambda Legal's plaintiffs, trying to raise their children with dignity and respect and a sense of fairness, who can't answer their children's questions about why the government treats their parents like they're not as good as their friends' parents. They heard from the children themselves, who want to know why their families are treated as second-rate and unworthy of full, equal respect.

And after the official Civil Union Review Commission was done listening to all of these experts and heartfelt stories, it reported that the civil union experiment had failed. The Commission sent a unanimous, urgent recommendation to the legislature that had created it: End the denial of the freedom to marry now.

Sadly, though, despite the evidence, conclusion, and a hard-fought campaign by Garden State Equality, the legislature failed to comply with the recommendation of its own Commission. The Senate Judiciary Committee heard more testimony, at more hearings, from more families, more kids, and more experts, but then, in the last days of the session -- under the long shadow of the incoming governor, who took office in January after a campaign tinged with anti-equality rhetoric -- the Senate rejected the marriage bill. Despite the unanimous Court order that New Jersey's gay families must be treated equally, despite all the evidence that the Court's order is not being met, despite the suffering and degradation underlying that evidence, and despite the concessions by even anti-gay legislators that the civil union law is not working, the prospects that New Jersey's legislative branch will take the needed action are now nil.

There is now but one path to justice.

The families who returned to the New Jersey Supreme Court this week, the plaintiffs in Lewis v. Harris, have walked a long and pain-laden road. Their pain began well before the case began in 2002. That painful history informed the Supreme Court's unanimous equality decision in 2006. And now it should power this final stage, as Lambda Legal asks the Court to turn equal rights on paper into equal rights in the real world. It is time for the Court to enforce its order and fulfill the constitutional command of equality, ending the denial of marriage in New Jersey. Same-sex couples in New Jersey shouldn't have to wait any longer.

Co-authored by Hayley Gorenberg, Deputy Legal Director of Lambda Legal