Upcoming federal cases could transform marriage laws in all 50 states.
Big changes could be coming to marriage in New Jersey but not in the way that many proponents expected. Last week, the United States Supreme Court decided to hear two cases — Hollingsworth v. Perry and U.S. v. Windsor — both of which directly address the constitutionality of laws restricting marriage to opposite-sex couples. The key issue in Hollingsworth, a California case, is whether the Equal Protection Clause contained in the Fourteenth Amendment of the U.S. Supreme Court prohibits the State of California from banning same sex marriage. You may recall that in 2008 California voters passed the controversial Proposition 8 which prohibits same sex marriage. Windsor involved a challenge to Section 3 of the Defense of Marriage Act (DOMA), 1 U.S.C. § 7, a federal law (as opposed to the state law challenged in Hollingsworth) defining marriage as “only a legal union between one man and one woman as husband and wife” and denying Fifth Amendment equal protection to married same sex couples as a result. The pundits and “expert commentators” have widely varying views and predictions for the outcome. Some believe, the Court might uphold Proposition 8 in Hollingsworth solely on the grounds that the petitioning parties lack standing under Article III, Section 2 of the U.S. Constitution. Standing could also play a decisive role in Windsor oral argument.
Some believe that Justice Kagan, who is previously on record opposing a ban on same sex marriage , may recuse herself from the decision. Justice Kagan formerly worked as an Administration solicitor involved in the development of a strategy to attack DOMA. Still other commentators believe a pro same sex marriage decision analogous to the landmark 1967 decision in Loving v. Virginia is a distinct possibility . Loving applied strict scrutiny to state laws prohibiting mixed-race marriage. In the interim, same sex New Jersey couples are limited to civil unions. For those keeping a score card, nine (9) U.S. states presently recognize same sex marriage; thirty have banned same sex marriages by constitutional amendment and another nine (9) have banned them by statute. As always, we will continue to track important legal development affecting our family law clients. If you or someone you know has questions about civil unions or their dissolution here in New Jersey, contact the family law attorneys at DeMichele & DeMichele online today. Your confidential initial consultation is only a phone call away: (856) 546-1350.