Deborah T. Poritz

“ Most telling, the Court did not frame the issue as a right to interracial marriage but, simply, as a right to marry sought by individuals who had traditionally been denied that right. Loving teaches that the fundamental right to marry no more can be limited to same-race couples than it can be limited to those who choose a committed relationship with persons of the opposite sex. By imposing that limitation on same-sex couples, the majority denies them access to one of our most cherished institutions simply because they are homosexuals. ”

“ I can find no principled basis, however, on which to distinguish those rights and benefits from the right to the title of marriage, and therefore dissent from the majority’s opinion insofar as it declines to recognize that right among all of the other rights and benefits that will be available to same-sex couples in the future. ”

“ Such a step reduces the discrimination, but falls far short of eliminating it. The institution of marriage is unique: it is a distinct mode of association and commitment with long traditions of historical, social, and personal meaning. It means something slightly different to each couple, no doubt. For some it is primarily a union that sanctifies sex, for others a social status, for still others a confirmation of the most profound possible commitment. ”

“ Had the United States Supreme Court followed the traditions of the people of Virginia, the Court would have sustained the law that barred marriage between members of racial minorities and caucasians. The Court nevertheless found that the Lovings, an interracial couple, could not be deprived of “the freedom to marry [that] has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.” ”

“ The word “married” gives you automatic membership in a vast club of people whose values are clarified by their choice of marriage. With a marriage, everyone can instantly relate to you and your relationship. They don’t have to wonder what kind of relationship it is or how to refer to it or how much to respect it. ”

“ We must not underestimate the power of language. Labels set people apart as surely as physical separation on a bus or in school facilities. Labels are used to perpetuate prejudice about differences that, in this case, are embedded in the law. By excluding same-sex couples from civil marriage, the State declares that it is legitimate to differentiate between their commitments and the commitments of heterosexual couples. ”

“ New Jersey’s statutes reflect both abhorrence of sexual orientation discrimination and a desire to prevent same-sex couples from having access to one of society’s most cherished institutions, the institution of marriage. Plaintiffs’ interests arise out of constitutional principles that are integral to the liberty of a free people and not out of the legislative provisions described by the majority. ”

“ Because it fulfils yearnings for security, safe haven, and connection that express our common humanity, civil marriage is an esteemed institution, and the decision whether and whom to marry is among life’s momentous acts of self-definition. ”

“ What same-sex couples seek is admission to that most valuable institution, what they seek is the liberty to choose, as a matter of personal autonomy, to commit to another person, a same-sex person, in a civil marriage. ”

“ When we say that the Legislature cannot deny the tangible benefits of marriage to same-sex couples, but then suggest that “a separate statutory scheme, which uses a title other than marriage,” is presumptively constitutional, ante at ___ (slip op. at 7) , we demean plaintiffs’ claim. What we “name” things matters, language matters.
In her book Making all the Difference: Inclusion, Exclusion, and American Law, Martha Minnow discusses “labels” and the way they are used:
Human beings use labels to describe and sort their perceptions of the world. ”

“ Marriage also bestows enormous private and social advantages on those who choose to marry. Civil marriage is at once a deeply personal commitment to another human being and a highly public celebration of the ideals of mutuality, companionship, intimacy, fidelity, and family. “It is an association that promotes a way of life, not causes ”

“ Justice Kennedy explained further that “times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.” ”

“ The particular labels often chosen in American culture can carry social and moral consequences while burying the choices and responsibility for those consequences. . . . . Language and labels play a special role in the perpetuation of prejudice about differences. ”

“ C. Perhaps the political branches will right the wrong presented in this case by amending the marriage statutes to recognize fully the fundamental right of same-sex couples to marry. That possibility does not relieve this Court of its responsibility to decide constitutional questions, no matter how difficult. Deference to the Legislature is a cardinal principle of our law except in those cases requiring the Court to claim for the people the values found in our Constitution. Alexander Hamilton, in his essay, Judges as Guardians of the Constitution, The Federalist No. ”