On July 26, 2010, an equally divided New Jersey Supreme Court refused to hear an attack on civil union statute in a motion filed in the Lewis v. Harris case.  Rather, the Court’s Order held that the matter cannot be decided without a trial like record and as such, denied the motion without prejudice for a new law suit to be filed.  The Order specifically noted that it made no determination on the consitutionality of the civil union statute.

In the dissent by the other three Justices, they framed the issue as follows:

Plaintiffs are six committed same-sex couples who have filed a motion in aid of litigants’ rights claiming that almost four years after Lewis v. Harris, 188 N.J. 415 (2006), and three-and-one-half years after passage of the Civil Union Act, N.J.S.A. 37:1-28 to -36, they still are denied the “full rights and benefits enjoyed by heterosexual married couples” mandated by the equal-protection guarantee of Article I, Paragraph 1 of the New Jersey Constitution. In their papers, plaintiffs detail a host of workplace, public accommodation, family law, economic, and various other “rights and benefits” that, they allege, are
not afforded to them despite the Civil Union Act and the command in Lewis. In addition to certifications by the parties, plaintiffs cite to the report of the Civil Union Review Commission, N.J.S.A. 37:1-36, a body established by the Legislature as part of the Civil Union Act to evaluate the Act’s success, which concluded that civil unions have failed to deliver the mandate of equality guaranteed by Article I, paragraph 1. However, plaintiffs’ record has not been tested in the crucible of a litigated matter. Thus, we realize that we do not have a sufficient basis for debating the merits of the application, which raises a matter of general public importance and one of constitutional significance.

The next step should be the development of a record on which those important issues can be resolved quickly. At the very least, oral argument would have helped to guide us on the best procedural course for creating such a record. We are disappointed that three members of the Court have voted to deny the motion without oral argument and that plaintiffs must now begin anew and file a complaint in the
Superior Court seeking the relief to which they claim they are entitled. If plaintiffs’ allegations are true — and we will not surmise whether they are or are not — then the constitutional inequities should be addressed without any unnecessary delay. Therefore, we would hope that the proceedings in the Superior Court will be conducted with all deliberate speed.

One wonders whether there would have been a different result had Justice Wallace had been granted tenure and there was a full court of seven members.  That said, stay tuned for the next installment once the next round of litigation of this issue begins.

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