New Jersey marriage equality is now formally written into state law, ensuring married same-sex couples enjoy the same legal protections as heterosexual couples at the state level.
Gov. Phil Murphy signed S3416 into law, codifying this civil right into statute, with the express purpose of helping to protect against any potential backtracking by the U.S. Supreme Court.
As our Hackensack family law attorneys can explain, the New Jersey Supreme Court made same-sex marriage legal in its 2013 ruling in Garden State Equality v. Dow. This was done on the basis of the U.S. Supreme Court’s decision in U.S. v. Windsor, which struck down the federal Defense of Marriage Act, a law that narrowly defined marriage as a union that could only exist between one man and one woman.
Both of these were followed in 2015 by the more widely-recognized U.S. Supreme Court’s ruling in Obergefell v. Hodges. That ruling effectively made same-sex marriage legal in all of our 50 states.
So why was S3416 even needed?
Because when precedent is set by Court rulings as opposed to legislative action, the door is left open for Courts to overturn previous rulings - particularly if the political landscape has changed. We are all witnesses to this in what transpired with the U.S. Supreme Court decision in Roe v. Wade, which legalized abortions in the U.S. It has now been overturned.
Part of that has to do with the role Courts play in government versus the role that legislators play. It is the legislators who are tasked with making the laws. The Courts, on the other hand, are responsible to interpret the laws.
So, the goal of codifying in-state law is to ensure that no matter what happens at the Federal law level with regard to same-sex marriage, the LGBTQIA+ community will be protected at the State level in New Jersey. If for some reason Obergefell is overturned, same-sex marriages would still be protected - at least in New Jersey.
Is Same-Sex Marriage Safe From Being Overturned?
Although President Joe Biden’s U.S. Supreme Court nominee, federal Appellate judge Ketanji Brown Jackson, would join the Court’s liberal bloc, there is a conservative majority and it’s been increasingly assertive. When Obergefell was decided, the Court was fairly evenly divided, with Justice Anthony Kennedy delivering the swing vote. Of the four dissenting justices in Obergefell, three (Chief Justice John Roberts, Justice Clarence Thomas, and Justice Samuel Alito) remain on the bench today. The fourth, Justice Antonin Scalia, died in 2016.
The Obergefell dissent opposed the majority on several fronts. Roberts alleged the majority had relied on moral convictions rather than the U.S. Constitution and argued the majority’s decision could be expanded to allow legal polygamy. Thomas joined Scalia’s opinion, which asserted that Obergefell effectively robbed the people of the “freedom to govern themselves,” and that a decision deeming a same-sex marriage ban unconstitutional on the basis of the Fourteenth Amendment wouldn’t hold because it wouldn’t have been considered unconstitutional at the time the Fourteenth Amendment was adopted. Justice Alito argued that the Due Process Clause of the U.S. Constitution only protects the rights and liberties that are deeply rooted in the country’s history and tradition - and that same-sex marriage wouldn’t meet this definition. He further defended the state-level bans on same-sex marriages where the stated purpose was to “promote procreation and the optimal childrearing environment.”
All this said, there is currently no case in the U.S. Supreme Court pipeline slated to challenge the Obergefell decision, however, Roe v. Wade being overturned makes it more of a possibility that previously thought. Thus because that could change - just as the Court’s political landscape has - New Jersey’s legislature’s codifying same-sex marriage rights offers a clear and prudent layer of local protection for all couples.
Our Bergen County same sex-marriage attorneys can assist those in the LGBTQIA+ community with issues of prenuptial agreements, child custody, child support, alimony, divorce, surrogacy, equal relationships with children for a non-biological parent, adoptions, and reproductive/donor agreements.