On October 10, 2008, Connecticut’s Supreme Court ruled 4-3 that gay couples have the right to marry.  Connecticut is the third state behind Massachusetts and California to legalize same sex marriage.

The Court held that civil unions are not enough to protect the rights of gay couples.  In the majority opinion of Kerrigan v. Commissioner of Public Health, Justice Richard N. Palmer wrote that denying marriage to same sex couples would create separate standards.

Connecticut’s Attorney General Richard Blumenthal said the ruling goes into effect October 28th.  There will be no appeal.

New Jersey has not legalized same sex marriage.  In the Supreme Court decision of Lewis v. Harris, 908 A.2d.196 (2006), the Court held that same-sex couples are entitled to the same equal protection as heterosexual couples under the state constitution.

The Lewis v. Harris court unanimously agreed that (then) current state law was unconstitutional with respect to the equal protection of same sex couples.  The court was divided as to what remedy was required.  Four justices (of seven) ruled that the legislature can either amend marriage laws or create civil unions.  Three justices (the minority) argued that the only constitutional remedy is the amendment of the state marriage law to include same-sex couples.  The majority ruling gave the New Jersey legislature 6 months to either amend (then) current marriage laws or create civil unions.

The legislature created civil unions pursuant to N.J.S.A. 37:1-36.   New Jersey’s civil union law provides individuals in civil unions all the rights granted to married couples, including the rights of hospital visitation, the ability to collect survivor benefits, and restrictions that apply to marriage licenses and those individuals currently empowered to perform marriages are authorized under the law to conduct civil unions as well.

Now that Connecticut has legalized same sex marriage, will New Jersey follow suit?

EDITOR’S NOTE:  There remains criticism by bar groups and others that the New Jersey Civil Union statute does not do enough to protect the interests of gay couples.  Whether that will lead to further legislation remains to be seen.

In addition, as long as the United States government does not recognize same sex marriage, same sex couples cannot file joint federal tax returns and are otherwise denied rights created by federal law.

Eric S. Solotoff