Civil Wars, Part II

April 1, 2007

Unquestionably, the October 25, 2006 decision by the New Jersey Supreme Court in the Lewis marriage case has had a profound effect on the treatment of same-sex couples in New Jersey. The court's unanimous opinion that the New Jersey Constitution required that committed same-sex couples be afforded the same rights, benefits and obligations as married couples means that we have achieved a level of equality found only in four other states (Vermont, California, Massachusetts and Connecticut).

As in these other states, however, the rights, benefits and obligations are only those found under New Jersey state law. Unfortunately, New Jersey same-sex couples are still denied at least 1,138 rights, benefits, and privileges afforded to opposite-sex married couples under federal laws and regulations. Among the important rights denied us, according to a 2004 Government Account Report, are the right to sponsor a non-American partner for immigration, the right to file taxes jointly, the right to inherit a partner's property free of federal death taxes, and the right to receive a deceased partner's social security benefits.

There are two reasons these rights are denied to us. First, all of these rights and benefits are provided only to married couples, using terms, such as marriage, spouse, husband, and wife, that traditionally refer to opposite-sex couples only. Second, the federal Defense of Marriage Act (DOMA) provides that federal laws and regulations will only recognize marriages between one man and one woman.

The federal Defense of Marriage Act (DOMA), which has been in effect since 1996, was passed by Congress as a result of the decision by the Hawaiian Supreme Court requiring marriage equality for same-sex couples. Many states feared that that decision would unleash a terrifying wave of homosexual couples flying to Hawaii to marry, then returning home to demand recognition in their own state.

Much commentary focuses on this part of DOMA, which sought to limit the Constitutional right to full faith and credit, a legal term that requires other states to give effect to the judgments of other states. However, DOMA had two parts, and it is the first part, which defines marriage for purposes of federal law as a legal union between one man and one woman as husband and wife and defines spouse as referring only to a person of the opposite sex who is a husband or wife.

Until DOMA was passed, the federal government based the definition of marriage and spouse on state law. If you were a resident of New Jersey and you were considered married under New Jersey law, the federal government treated you as married. This was consistent with the federal Constitution, which specified that rights not defined in the Constitution were reserved to the states. Following DOMA, the federal government began denying same-sex couples the rights of married couples, even if they were legally married, as in Massachusetts.

More insidious is the fact that the federal DOMA affects recognition we have achieved under New Jersey law, sometimes in unexpected—and petty—ways. For example, same-sex couples in New Jersey who enter into a civil union have the right to change their name, as does a married couple. Under state law, the Motor Vehicle Agency, for example, must accept a civil union certificate as proof of a name change on your driver's license.

The federal government, on the other hand, will not accept a civil union license (or a same-sex marriage license) as proof of a legal name change. Thus, a partner in a civil union cannot change the name on their passport or social security card without obtaining a judgment of name change from a New Jersey court. Here, DOMA, imposes an extra step and additional cost on same-sex couples to achieve the same recognition as a similarly-situated heterosexual married couple.

Even worse, DOMA will probably allow many private employers to continue to deny health benefits to New Jersey same-sex couples. Employers that provide plans that are covered by a federal law called ERISA may be exempt from New Jersey law that would otherwise require them to cover civil union partners. ERISA has a preemption clause that means that state laws governing insurance are not applied. When combined with DOMA, however, ERISA allows an employer to violate state law and restrict health benefits to spouses and dependents as those terms are defined under DOMA.

So the civil war we are fighting in New Jersey—the fight for equal treatment of same-sex couples—is far from over. The next phase will be fought in the federal courts and in Congress to either overturn or repeal DOMA and other restrictions on our rights.

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