dicta

Someone on a law school listserv had this to say about the New Jersey gay marriage case:

"Most media sources are currently reporting the decision as a 4-3 ruling. What they have failed to make clear is that the 3 who didn't join wrote an opinion where they (1) concurred with the main holding* that the statutory distinction is a violation of equal protection under the NJ Constitution and (2) dissented in the argument that marriage is not a fundamental right under the Due Process Clause. They would have held* that same-sex couples have not just the right to all the legal benefits associated with marriage (whatever name its called), but that they have a fundamental right to the concept of marriage. (Thats just a quick read by the way, I haven't had the chance to read all 90 pages).

"So, the reality is that this is a VERY strong 7-0 decision guaranteeing equal status of hetero/homo sexual couples under the law and 3-4 dicta* opinion that points towards an even more progressive result in the future."


. . .

* The holding of the case is law and is binding on all lower courts (in this case, all New Jersey courts). The holding of this case is that denying same-sex couples the same financial and social benefits given to straight couples violates the Equal Protection clause of the New Jersey Constitution. Dicta is language in the opinion that is not part of the holding, and therefore not binding, but can be persuasive to future courts. Lawyers often argue about whether a given part of an opinion is merely dicta or is legally binding. Dissents and concurrences are entirely dicta, because only the majority opinion is law. But when lawyers make arguments that the law is wrong (e.g., Brown v. Board of Ed.), they often cite dicta from prior dissents that disagreed with what the majority held. Dicta in the concurrence and dissents in this case apparently stated that the right to marriage is a fundamental right protected under the Due Process clause; as a fundamental right, it would extend to everyone, instead of being restricted to straight people.