Video of arguments in same-sex marriage case before the New Jersey Supreme Court

One of the big concerns in the testimony supporting the Defense of Marriage Amendment, which was defeated in the Senate Judiciary Committee this week, was that without such an amendment, Minnesota’s current DOMA is vulnerable to legal action, such as that taking place in other states.

One of those states is New Jersey, where Lambda Legal filed a lawsuit against the State of New Jersey in June 2002 on behalf of seven same-sex couples seeking marriage. The case worked its way through the system and was heard by the New Jersey Supreme Court on February 15th of this year. A video of the arguments is found here.

If one really wants to understand how the arguments for and against gay marriage translate into legal arguments, this video is an excellent use of time.

Among the interesting things to note are first, how narrow the argument becomes in front of the court. The argument by the Lambda attorney focuses on a point of Jersey law that isn’t applicable in Minnesota, but the attorney is arguing state law, not federal law. The challenge, which is a due process/equal rights challenge, is made, however, under state law.

Similarly, the state of New Jersey makes no argument whether same-sex marriage is a “moral” issue or even whether or not it is beneficial for the state. The state attorney focuses on the content of the New Jersey constitution. He repeatedly makes the point that the state constitution implies the grant of authority to the legislature and that the court would be outside its bounds to -- again appealing to the same “balancing criteria” as defined by New Jersey law that the Lambda attorney addresses.

Further, it is interesting to watch the “inside baseball” being played by members of the court. You can pick up on a subtle secondary debate among the judges on the court during their questioning of the attorneys. One judge will ask a question and a second judge will follow-up, essentially framing the answer for the attorney, leaving him little to say except -- “Yes, you’re exactly right, your honor.” There is more to an appellate court case than meets the eye.

Bottom line, what I take away from the New Jersey argument is that (surprise) I still think I’m right on this issue. By far, the strongest case made is for same-sex marriage on all points with the possible exception of the one that counts -- how New Jersey law ought to be applied. The Lambda attorney's tactic on that point is to use the balancing criteria used in New Jersey law to put the burden of proof on the state.

(That contrasts with my view that the burden ought to be with those supporting same-sex marriage to prove benefit. The Lambda attorney's point, however, is valid under New Jersey law. It makes a tough case for the state attorney.)

By contrast, the state’s attorney makes a good case that marriage definition belongs in the legislature, but when one of the judges gets him off onto the “balancing” criteria of New Jersey law -- weighing harm to the individual versus benefit to the state -- the state attorney has a tough time making a case for any benefit to the state of denying same-sex marriage. He fails to make a case for the abstract “protecting traditional marriage.” He insists such argument is not germane to the constitutional issue, but as one judge notes, by doing so he also undercuts the balancing criteria of New Jersey law that is at issue.

Anyhow, view for yourself. The hearing runs about an hour.