Friday Philosophy: the difference between rights and luck

I spent the morning reading a 97-page pdf so that you don’t have to. It’s a Motion in Aid of Litigants’ Rights.

Yesterday, Lambda Legal went back to court here in New Jersey, filing a motion seeking marriage equality.  The New Jersey Supreme Court ordered equality on October 25, 2006, in a case referred to as Lewis v Harris, but made the mistake of telling the legislature to implement that equality, which it has failed to do.’

In Lewis v Harris, the Supreme Court unanimously agreed that it is unconstitutional to give same-sex couples lesser rights than different-sex couples.  In January 2007, the New Jersey legislature enacted our present civil union law.

In December 2008 the the Civil Union Review Commission, appointed by the legislature, reported that civil unions fall well short of the court’s requirement of equality for same-sex partnerships.

In January 2010, the New Jersey Senate failed to pass a marriage equality law.

In light of “the overwhelming evidence presented to the commission,” it unanimously recommended to the Legislature and the Governor that the law be amended “to allow same-sex couples to marry” and that it be done “expeditiously because any delay in marriage equality will harm all the people of New Jersey.”

Mark Lewis:  “When asked, “Are you married?” time and again I have to answer, “No, but…” and instead struggle to explain what a civil union is and what it means…  There is no way around it.  I’m denied marriage and relegated to a civil union, so I am compelled to declare myself a second-class citizen every day of my life.”  Whether we get treated equally is dependent on the attitude towards us of the person we interact with, This is a precarious position which can be characterized by “the difference between rights and luck”.

The Civil Union Review Commission (The CURC was created concurrently with the enactment of the Civil Union Act, with the charge of reviewing the effectiveness of the Act in establishing equity):  [D]enying…access to the widely recognized civil institution of marriage while conferring legal benefits under a parallel system…imposes a second-class status on same-sex couples and sends the message that it is permissible to discriminate against them.”

1. Same-sex couples lack workplace benefits and protections equal to their married counterparts.

a. excessive health insurance premiums when employers do not provide coverage to partners

b. denial of family leave time

c. fewer workplace protections (retirement and death benefits to spouse of a worker, for example; denial of civil union partners with respect to flex-spending accounts)

Without the term marriage, …employers try to find ways to exempt same-sex couples from getting the full and equal benefits that they deserve

–Testimony of Carol Gay, ex-VP, New Jersey Industrial Union Council

…we are not seeing the denail of benefits [in Massachusetts] that we are in New Jersey

–Rosemarie Cipparulo, lawyer for Communications Workers of America

…because same sex-partners in Massachusetts are termed “spouses”.

2.  Same-sex couples face unequal treatment and lack of recognition in public accommodations and civic life

The advent of civil unions has not prompted local branches of nationwide financial services, real estate, and other companies to reengineer their business policies, forms or computer programs in order to accommodate this novel and anomalous legal category.

This forces GLBT people to have to become their own advocates in explaining, even to lawyers, what New Jersey civil union is and means.  Even filling out the state taxes has proved burdensome, as has interacting with officials at the DMV.

In one instance, regarding jury selection, a judge required all the potential jurors to state if they were married or single.  Hence one of the jurors was forced to reveal her sexual orientation to strangers as she tried to explain to the court what the legal status of a civil union partner was.

Even the state’s licensing and financial disclosure forms do not allow the listing of civil union partners, putting the people filling them out at legal risk.

And of course, there are the usual problems with medical care.  Even though the law requires hospitals to recognize the rights of civil union partners to access their partners during medical treatment and even to have policies in place implementing these rights as a condition of being licensed, “same-sex partners are routinely denied the options of married couples in medical settings”.

One individual, prior to having surgery, noticed that a hospital worker had changed the status of her emergency contact from “civil union partner” to “friend”, a status which has no legal meaning, but epitomizes the denigration of committed relationships experienced routinely by same-sex couples in civil unions.

Furthermore, there is no other jurisdiction outside New Jersey which legally recognizes New Jersey civil unions.

3.  Same-sex couples experience a lack of family law protection

Simply put, the law fails to address “critical issues relating to custody, visitation, and partner and child support”.  Nobody seems to even be aware of how, for example, to dissolve a civil union or even valid same-sex marriages created in other jurisdictions.

4.  Same-sex couples and their children suffer disparate and unfair financial burdens

Lewis recognized that the “economic and financial inequities that are borne vy same-sex domestic partners” are unfairly “borne by their children, too”.  The CURC reported that this has not changed, having “a predictably negative impact on their children”.

Same-sex couples are required “to vindicate their rights through costly litigation when ‘things go wrong’.”  I don’t know about anyone else, but I find it financially untenable to constantly have a personal attorney on retainer.  Disproportionately, the people most affected by this damage are lower-income GLBT, who in New Jersey are more likely to be people of color.

Furthermore, there is no process by which same-sex couples can obtain tuition benefits on equal terms with married families, so the children of same-sex parents have less access to higher education.  

Despite the Act’s requirement that “laws related to tuition assistance or higher education for surviving spouses or children” shall apply “in like manner” to civil union couples…in administering its own financial aid system, New Jersey has chosen to utilize a federally created formula (FAFSA) that does not recognize the legal relationship of same-sex parents.

The reason for this is the state says it is just too expensive to create a new form and the requisite separate database.  But (Saenz v Roe, 526 U.S. 489, 507 (1999)) a state’s “legitimate interest in saving money provides no justification for its decision to discriminate among equally eligible citizens”.

Of course, state financial aid for higher education of New Jersey residents may be fast becoming a thing of the past according to Gov. Christie’s budget proposal of this past week.

5.  The maintenance of a separate “Civil Union” status harms certain children and deprives them of equality.

Children of same-sex parents and lesbian and gay youth of New Jersey are harmed by virtue of the State’s relegation of same-sex relationships to an inferior status.  The Court in Lewis would not presume that an alternate designation of status would automatically result in unequal status and rights, but that was before the evidence was in.  Now, we know better.  The Civil Unions Act was not good enough to confer true equality.

[it is] distinctly unfair for the state to recogniz[e] the right of same-sex couples to raise natural and adoptive children and plac[e] foster children with those couples, and yet den[y] those children the financial and social benefits and privileges available to children in heterosexual households.

—Lewis v Harris

[I]t doesn’t bother me to tell kids that my parents are gay, but it does bother me to say they can’t get married, because it makes me feel that our family is less than their family.

—Kasey Nicholson-McFadden

One of the biggest worries is that while the purpose of marriage, in part, to provide children with a social connection with society, the State seems to be telling some children that their family is inherently inferior because their parents are deemed to be inferior people.

And the classification of civil unions for gay people also tells our GLBT youth that the State sees them as different…and probably inferior people, since it enacted a civil union law specifically to keep gay people from getting married.

6.  The unequal treatment resulting from civil union status causes psychological and dignitary harm to same-sex couples.

People in civil unions are treated differently from those in civil marriages in ways that stigmatize same-sex couples, which is a cause of psychological harm.

…the Plaintiff’s experience of civil unions and the experience of others who have entered civil unions, as shown by the CURC materials and legislative testimony, prove that civil unions do not accomplish a central purpose of Lewis:  to allow same-sex couples to hold themselves out to their government and their fellow citizens, just as married couples do, as a mutually bound unit entitled to equal recognition and treatment.

So it now appears that, rather than, as mandated by Lewis, providing equitable recognition of same-sex relationships, the Civil Union Act has instead perpetuated discrimination and the denial of equal rights.

The lawsuit calls upon the Supreme Court to exercise its enforcement powers and order relief in aid of litigants’ rights.  Since the State has failed its legal mandate, the Court should, under rule 1:10-3 (a litigant in any action may seek relief by application in the action), correct the wrong.  New Jersey’s Abbott school districts are a result of the Court exercising just that power.

When the Court issued its constitutional mandate to the legislature, they provided 180 days for the legislature to come up with a solution to providing equity.  Here we are 1139 days later.  We should not have to wait indefinitely.  The legislature, thinking that there might be a problem providing that equity, even formed a commission to investigate whether or not it was successful.  That commission reported that the Civil Union Act has not been a success.  Thereafter, the legislature ignored the CURC by failing to act to correct the failings earlier this year.

Now it is time for the Court to act.

The Court must force the fundamental right embodied within the Constitution for the protection of all persons.

—Goodridge

Not wanting to seem unfriendly in painting the Court into a corner, Lambda allows the court an out:  appointing a Special Master to oversee the establishment of the Court-ordered equity.

The motion was filed by Lawrence S> Lustberg, Eileen M. Connor and Jennifer B. Condon of Gibbons P.C of Newark and Hayley Gorenberg of Lambda Legal Defence and Education Fund, INC.

Standing in the Fire