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New Jersey Civil Unions Post Windsor

New Jersey provides for civil unions instead of marriage for same sex couples, which are intended by the New Jersey Legislature to be in compliance with New Jersey’s Supreme Court case of Lewis & Winslow, et. al. v. Harris, decided in 2006, which indicated the following:

“Denying committed same-sex couples the financial and social benefits and privileges given to their married heterosexual counterparts bears no substantial relationship to a legitimate governmental purpose. The Court holds that under the equal protection guarantee of Article I, Paragraph 1 of the New Jersey Constitution, committed same sex couples must be afforded on equal terms the same rights and benefits enjoyed by opposite-sex couples under the civil marriage statutes. The name to be given to the statutory scheme that provides full rights and benefits to same sex couples, whether marriage or some other term, is a matter left to the democratic process.”

Yesterday, the U.S. Supreme Court, in U.S. v. Windsor, indicated the following relative to the Defense of Marriage Act (referred to as DOMA), which permitted the federal government and its institutions (i.e. the I.R.S. ) to refuse to recognize gay marriages and other state sanctioned relationships such as civil unions: “The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment. This opinion and its holding are confined to those lawful marriages.”

Many now indicate that those in relationships known as Civil Unions in New Jersey will not be able to take advantage of federal marriage rights despite this decision, as the decision was narrowly tailored such that the federal government will in most instances only recognize gay marriages. The instant legal question that now arises is whether or not civil unions in New Jersey are now constitutional under both the analysis in Lewis v. Harris and U.S. v. Windsor. This question will surely be decided in the courts.

If you are in a civil union in New Jersey and seek to dissolve that union, or enter into one, it is important to ensure that you are familiar with the statutes and case-law that carve out your rights and obligations.