SAME-SEX "MARRIAGES"

By: Ronald B. Rosen, Esq. & Kelly A. Cascone, Esq.
N.J. BACKGROUND - CASE LAW



No specific language in New Jersey's marriage statutes prohibits same-sex marriages. N.J.S.A. 37:1-1 entitled "Certain Marriages Prohibited" prohibits "a man" or "a woman" from marrying any of their "ancestors or descendants" or other specifically delineated relatives: siblings, nieces and nephews, aunts or uncles. The statute, which requires a marriage license, speaks in gender-neutral language: "The persons intending to be married shall obtain a marriage license." N.J.S.A. 37:1-2. The statute term "minor" after an amendment deleted reference to underage males and females. N.J.S.A. 37:1-6. However, the provision that describes where the marriage license is to be obtained refers to the residential municipality of "the female party to the proposed marriage," or, "if the female party is a non-resident of this state" the municipality in which "the male party resides." N.J.S.A. 37:1(a), (b).
M.T. v. J.T. 140 N.J. super 77 (App. Div.) Certif. Denied. 71 N.J. 345 (1976) is the only reported decision in New Jersey which addresses the issue of same-sex marriages. There, Defendant husband defended Plaintiff wife's complaint for support on the ground that his wife was really a male and the marriage was, therefore, void. The Plaintiff had been born a male, but through surgery and hormonal therapy, she became a female. Although the parties were married after surgery (1 year after surgery), the Defendant contended that at that time, Plaintiff was a male and, therefore, the marriage was a nullity. Judge Handler (now Justice) went into a lengthy analysis as to who may enter into a valid marriage in New Jersey.
He held:
"We accept -- and it is not disputed -- as the fundamental premise in this case that a lawful marriage requires the performance of a ceremonial marriage of 2 persons of the opposite sex, a male and a female. Despite winds of change, this understanding of a valid marriage is almost universal. Annotation, "Marriage Between Persons of Same Sex," 63 A.L.R. 3d 1199 (1975).

In the matrimonial field, the heterosexual union is usually regarded as the one entitled to legal recognition and public sanction. 52 Am. Jar. 2d marriage, 1 at 865 e.g., Singer v. Itana , 11 Wash. App. 247, 522 P. 2d 1187 (App. Ct. 1974); B v. B , 78 Misc. 2d 112, 355 N.Y.S. 2d 712 (Sup. Ct. 1974); Jones v. Hallahan , 501 S.W. 2d 588 (Ky Ct. App. 1973); Baker v. Nelson , 291 Minn. 310, 191 N.W. 2d 185 (Sup. Ct. 1971) app. Dism. 409 U.S. 810, 93 Sct. 37 (1972).

There is not the slightest doubt that New Jersey follows the overwhelming authority. The historic assumption in the application of common law and statutory strictures relating to marriages is that the only persons who can become "man and wife" have the capacity to enter marriage. Cf. Winn v. Wiggins , 47 N.J. Super 215, 220 (App. Div. 1957); Jackson v. Jackson , 94 N.J. Eq. 233, 236-37 (E. & A. 1922). N.J.S.A. 37:1-10. The pertinent statutes relating to marriages and married persons do not contain any explicit references to a requirement that marriage must be between a man and a woman. N.J.S.A. 37:1-1 et. seq. . Nevertheless, that statutory condition must be extrapolated. It is so strongly and firmly implied, from a full reading of the statutes, that a different legislative intent, one which would sanction a marriage between persons of the same sex, cannot be fathomed. Id. At 83-85 (footnote omitted).

(Note - The Court ultimately affirmed the lower Court's determination that the Plaintiff was, in fact, a female, that the marriage was valid, and the Defendant was required to pay.)

The issue of same-sex relationships was again addressed in Rutgers Council of AAVP Chapters v. Rutgers, the State University , 1997 WL 106864 (March, 1997) (Appellate Division) - where Plaintiff's, five employees of Rutgers University and their collective bargaining agent, Rutgers Council of AAVP Chapters appealed the Division of Pensions' denial of health insurance coverage to the employees' same-sex domestic partners. Denial of coverage was based on the failure of the parties to satisfy the statutory definition of "dependents" -- that is, they were not "spouses" under New Jersey Law.
On appeal: Plaintiffs raised four issues:
  1. The language of the State of Health Benefits Plan ("SHBP") Act, regulations, case law, and public policy mandate liberal construction of the term "dependents" to protect state employees' families, including their domestic partners;
  2. The denial of health benefits to Plaintiffs' domestic partners violates the New Jersey Law Against Discrimination ("LAD") by discriminating on the basis of sexual orientation and marital status;
  3. The denial of health benefits to the domestic partners of gay and lesbian state employees violates the employees' rights to equal protection under the New Jersey Constitution;
  4. The SHBP Act must be interpreted in a manner consistently with Executive Order No. 39, which prohibits discrimination in the executive branch on the basis of sexual orientation.
    The Court, in reaching its ultimate decision, reasoned: "A great number of jurisdictions have expressly forbidden same-sex marriages or expressly limited marriages to heterosexual couples, but we find only five jurisdictions that have had challenges to these limitations on constitutional grounds. Other Courts have dealt with the issue of same-sex marriages, but marriage statutes and the interpretations thereof were not involved. See Adams v. Howerton , 673 F. 2d 1036 (9th Cir. 1982) Cert. Denied, 458 U.S. 1111; 102 Sct. 3494 (1982) (Challenge to section of Immigration and Nationality Act defining spouse as excluding homosexual marriage partner);
    DeSanto v. Barnsley , 476 A.2d 952, (Pa Super 1984) (Action for divorce between two males where the complainant claimed a valid common law marriage existed);
    Koppelman v. O'Keefe , 535 N.U.S. 2d 871 (Sup. Ct. 1988) (gay life partner of deceased tenant of rent controlled apartment sought protection in the ordinance afforded to a spouse);
    Ross. Denver Dept. Of Health and Hospitals , 883 P. 2d 516 (Colo Ct. App. 1994) (same-sex partner sought classification as "immediate family" for purposes of obtaining sick leave to take care of her ill domestic partner.);
    Ultimately, the Court conclude: that its response to Plaintiff's claim for relief is restricted by its role as a Court and it cannot enact laws or create benefits. The Court reasoned that it must interpret the statutes and laws enacted by the legislature and the framers of our constitution. Therefore, the Court's omitted answer to the equal protection argument is that it is not only homosexual couples that cannot legally marry and, thus, cannot qualify a dependent domestic partner for enrollment under the SHBP. Cousins, parents, children over age 23, siblings, or anyone related too closely by blood, including those persons legally married to another, cannot qualify for benefits because of the marriage requirement, no matter how dependent or emotionally bonded they may be. Ultimately, the Plaintiffs' Complaint and Appeal were dismissed.
    However: although New Jersey does not recognize "same-sex" marriages per se -- same-sex domestic partners have made certain strides within the New Jersey Courts and legislature.
    In 1991, N.J.S.A. 2C:25-3 (the former Domestic Violence Statute) stated:
    (a) "Cohabitants" as used in the Prevention of Domestic Violence Act - means emancipated minors or persons 18 years of age or older of the opposite sex who have resided together or who currently are residing in the same living quarters, persons who together are the parents of one or more children, regardless of their marital status or whether they have lived together at any time, or persons 18 years of age or older who are related by blood and who are currently residing in the same living quarters.
    Throughout the 1991 Act, the legislators sought to clarify and expand the definitions and terms of the 1981 Act. These changes include a substitution of the term "victim of domestic violence" for "cohabitants". Moreover, the 1991 Act contains no requirement that a cohabitant be a member of the opposite sex or related to the victim. Thus, the 1991 Act creates a potential for actions by lesbians and gay men caught in violent relationships.
    Additionally, same-sex partners have gained recognition and judicial headway with regard to the adoption of children. In the matter of the Adoption of Two Children by HNR 285 N.J. Super (App. Div. 1995), a biological mother executed a consent for her same-sex partner to adopt the mother's children, the partner filed a Complaint to adopt the children. The Superior Court (Bergen County) denied the adoption, and the partner appealed.
    The Appellate Court held that the fundamental question raised by the Appeal is whether the adoption laws of New Jersey permit the adoption of children by the same-sex cohabitating partner of their natural mother without affecting the mother's parental rights.
    Ultimately, the Court concluded that the adoption statute itself, N.J.S.A. 9:3-37 requires that the "act be liberally construed to the end that the best interest of children be promoted." The Court further noted that the statute is silent with respect to either the joint adoption by unmarried persons or adoption by an unmarried cohabitant of his/her partner's child with the partner's consent. Since the statute did not expressly prohibit such adoptions, the Court held that the question should be read as permitting them, if they will serve the children's best interest.
    Obviously, this is a fact specific determination, however, the Court adopted the rationale of the Vermont Supreme Court in Matter of Adoption of Evan , 153 Misc. 2d 844, 583 N.Y.S. 2d 997 (Surr. Ct. 1992), concluding:
    "As the case law from other jurisdictions illustrates, our paramount concern should be with the effect of our laws on the reality of children's lives. It is not the Courts that have endangered the diverse composition of today's families. It is the advancement of reproductive technologies and society's recognition of alternative lifestyles that have produced families in which a biological and, therefore, a legal, connection is no longer the sole organizing principle...It is surely in the best interests of children and the state to facilitate adoptions in these circumstances so that legal rights and responsibilities may be determined now and any problems that arise later may be resolved within the recognized framework of domestic relations law."

The Court noted that it was "not called upon to approve or disapprove of the relationship between the appellants. To deny legal protection of their relationship, as a matter of law, is inconsistent with the children's best interests and, therefore, with the public policy of this state, as expressed in our statutes affecting children."
Hawaii: And its Ramifications:
The only state in the country to recognize the potential for same-sex marriages is Hawaii, via a Supreme Court case called Baehr v. Lewin . In Baehr , three couples, (two female, one male) protested the State of Hawaii's refusal to issue them a marriage licenses. Certainly, this is not the first time a gay or lesbian has brought such a case to court. This particular time, however the fundamental argument has changed. In the past, the argument has always been that gays and lesbians were be discriminated against. The current argument, however, states that denying marriage licenses to same-sex couples amounts to sex discrimination. That is, if a man is allowed to marry a woman but a woman is not, that violates current policies against discrimination of the basis of sex. The result is a full, legal, recognized marriage in Hawaii for same-sex couples without restriction. And, since all 50 states have a reciprocal arrangement concerning marriage laws, such that a couple married in one state is considered married by the other states (pursuant to Article 4 of the Constitution, which requires states to give "full faith and credit to each state's laws"), this would mean that couples could go to Hawaii, get married, and then return to their home states to enjoy all the benefits of a legal marriage, despite the fact that the couples's respective state would not have recognized the marriage to begin with.
The ramifications of the above scenario are boundless. Marriage in the United States is a legal institution, not a religious one. Legal spouses enjoy many benefits that non-married partners cannot:
Hospitalization-treatment issues
Inheritance Issues
Insurance Issues (even car insurance reductions)
Pension Issues
Housing Issues
Tax Issues
Alimony/Support Issues

to name just a few.

Married couples are afforded many legal benefits that have nothing at all to do with religion, etc., while same-sex couples are denied these rights.
Given the aforementioned endless consequences to the recognition of same-sex marriages and same-sex benefits, there can be no surprise that there has been a whipping backlash amongst not only the individual states, but the federal government as well. Currently, there is a pending legislation affectionately termed "The Defenses of Marriage Act," which, if codified, would allow each state to decide for itself, as to residents of that state, whether it wanted to recognize a same-sex marriage from another state. This would not necessarily ban same-sex marriages or condemn them, but rather, states that each state should get the opportunity to decide for itself. Essentially, this bill would allow the states to effectively disregard the "full faith and credit" clause of our United States Constitution.
Article IV of the U.S. Constitution reads, "Full faith and credit shall be given each state to the public acts, record and judicial proceedings of every other state." However, the second sentence of Article IV, immediately following the one quoted above, states "And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof."
The purpose of the second sentence of Article IV appears to be to allow Congress, if is chose,, to establish uniform rules for States to follow if it wanted other states to accord for full faith and credit. But Congress was also given the opportunity to specify the "effect" of such rules--or one must assume, the failure to follow such rules.
The Congress has already used the power granted it under the second sentence of the "full faith and credit" clause regarding custody and child custody and child support award of the state that originally adopted them. However, when all parties have moved to a different state and reside there, the Congress in 1994, removed the state from its obligation to give "full faith and credit" to the state's determination. This was in recognition of the second state's greater interest in the family that now resides within its borders. Congress exercised very similar authority in the issue at hand, to say that each state should be able to decide for itself whether or not a same-sex marriage is valid for couples residing within that state.
Rules about marriage are a particularly appropriate subject matter for the exercise of that power. This is because the normal rule in common law makes a marriage that was legal where performed, legal everywhere else, provided the spouses were domiciled in the state where the marriages took place. That rule applies even to new states to which the couple mich move. Yet, those new states might have their own rules about conduct regarding bigamy, or age, or adulthood, or rules regarding the dissolution of a marriage, such as the allocation of alimony and how that plays out when the spouse co-habitats with another, whether opposite that party be of the sex or same sex.

Same-sex Consequences Regarding Alimony Support in New Jersey
This then brings us to the issues of how same-sex marriages and same-sex cohabitation will affect alimony support by an ex-spouse. Presently, alimony awards in the state of New Jersey ar governed by N.J.S.A. 2A:34-23. More importantly, N.J.S.A. 2A:34-25 governs alimony awards in the face of remarriage of a former spouse. Specifically, N.J.S.A. 2A:34-25 states:
If after the judgment for divorce a former spouse shall remarry, permanent alimony shall terminate as of the date of re-marriage except that any arrearages that have accrued prior to the date of remarriage shall not be vacated or annulled. The remarriage of a former spouse receiving rehabilitative alimony shall not be cause for termination of the rehabilitative alimony by the court unless the court finds that the circumstances upon which the award was based have not occurred or unless the payer spouse demonstrates an agreement or good cause to the contrary.

Based on the above premise, and in response to the influx of couples living together (foregoing the institution of marriage) in the 70's and 80's, New Jersey case law emerged to address the issue of alimony under these living arrangements. Cases such as Garlinger v. Garlinger , 137 N.J. Super . 56 (App. Div. 1975); Gayet v. Gayet , 93 N.J. 149 (1983); and Pugh v. Pugh , 216 N.J.Super . 421 (App. Div. 1987) came tot eh forefront in the legal arena. And although all the above cases factually involved a former spouse cohabiting with a member from the opposite sex, the language of the holdings much like that of N.J.S.A. 34-25, remained gender neutral. Among the changed circumstances to be considered by trial courts is the "dependent spouse's cohabitation with another ." The focus of the courts was purely an economic needs test to determine whether cohabitation requires modification of an alimony award. Cohabitation by a divorced spouse constitutes changed circumstances justifying discovery and a hearing in a proceeding for modification of alimony. However, the test for modification of alimony remains whether the relationship has reduced the financial needs of the dependent former spouse.
Thus, if the above financial test is gender neutral, as it appears, it would seem that we have gone full circle. If, in fact, the Congress passes "The Defense of Marriage Act," allowing New Jersey to decide for itself as to whether it should recognize same-sex marriages, or if it is obligated, pursuant to the "full faith and credit" clause to, in fact, recognize this institution, the bottom line remains the same: an award of alimony is a financial determination as opposed to a moral judgment, until law to the contrary is passed.
Interaction from the other panelists and the audience is invited.



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