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Same-Sex Rights in New Jersey

One of the most polarizing issues in our country today is the status of gay rights. In New Jersey, the rights of gay, lesbian, and transgender people are similar to those of heterosexual orientation, with the exclusion of the right to marriage. New Jersey, along with eight other states, offers civil unions for same-sex couples. A civil union provides couples with the legal benefits and protections of a marriage in New Jersey, including rights to family leave benefits,  regarding emergency medical care, relating to joint ownership of property, relating to insurance, health and pension benefits, relating to state public assistance benefits and a privileges not to testify against a civil union partner in court proceedings.

Unlike marriage, though, a civil union does not provide any of the protections under federal law. Those include social security survivors' and spousal benefits, immigration rights related to marriage, spousal employment benefits, the right to file joint federal tax returns, exemptions from income tax on your partner's of spouse's health benefits, the federal exemption from inheritance tax, and many other federal protections. This is true even for married same-sex couples - they do not receive the federal benefits of marriage.

Another issue is whether a  married or civil union same-sex couple joined in one state have rights that transfer to another? Usually, each state must respect the laws of other states, and give what is called "full faith and credit" to those rights, but it is unclear in most states. Any couple in a New Jersey civil union should protect themselves when traveling across state lines and bring health care and power of attorney documents. In New Jersey, same sex marriages from other countries and states will only be recognized as civil unions.

Federal rights and the status of same-sex civil unions and marriage across state lines are areas to watch. In March 2013, the Supreme Court of the United States heard arguments on the constitutionality of the Defense of Marriage Act (DOMA), an act that bars federal benefits for same-sex marriages (Section 3 of the Act) and allows each state to undercut another state's law on gay marriage (Section 2).

The Supreme Court could decide the case either on a (1) a technical basis or (2) on the actual substantive issues of the case. The technical reason may be that it is improper for them to hear or decide the case at all (or in legal terms, the case does not have "standing" or it is "improper jurisdiction"). If a decision is made on the actual substantive issues of the case (or in legal terms, "on the merits"), the judges could decide that DOMA is unconstitutional. This would result in the powerful result that married same-sex couples across the country would be able to access federal marital benefits. However, the decision would not affect that fact that same-sex marriages in one state can be ignored by another state (that section of DOMA is not being decided by the Supreme Court). In either case, the DOMA decision will have a major impact on gay rights.  With assistance from Angela Yu, Rutgers School of Law & Rutgers Business School.

1 Comment

Many thanks for your clear and concise elucidation on this important civil rights issue

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