As reported in the Star Ledger and other news sources, on Friday, November 4, 2011,  Judge Linda Feinberg said same-sex couples don’t have a fundamental right to marry, but they should have a chance to prove New Jersey’s civil union law does not give them benefits equal to heterosexual married couples.  This decision was made in response to the State’s Motion to dismiss the law suit filed by seven same-sex couples and Garden State Equality, a civil rights group. 

The court did dismiss the part of the law suit alleging that the civil union law violates due process and equal protection guaranteed by the United States Constitution.  However, the plaintiffs were allowed to argue it is unconstitutional on state grounds. As reported by the Star Ledger, Judge Feinberg noted, "I don’t think that the court can remain silent and take no action if … the result is that those benefits are not equal in the protections."

In 2006, the New Jersey Supreme Court, in Lewis v. Harris, held that same-sex partners should have the same benefits and rights as married heterosexual couples.  The Court, however, left it up to the Legislature to decide whether that should come through marriage or something else. The result was the civil union law that we now have.  As previously noted in this blog, in 2010 the Supreme Court refused to hear similar challenges to those raised in this current case.

Ultimately, this matter will likely return to the New Jersey Supreme Court.  We will keep you posted as developments arise. 

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Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Roseland, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973)994-7501 or esolotoff@foxrothschild.com.

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