Three state judges peppered attorneys on both sides of the gay marriage debate with tough questions Tuesday but put off making a decision on whether to allow same-sex marriages in New Jersey. During arguments before a state appeals panel in a packed courtroom, the judges pressed for answers on the issue from both sides. They asked the lawyer for seven same-sex couples if allowing gay marriage would open the door to legalizing polygamy and then quizzed an assistant attorney general on whether the state was running out of excuses for not granting gay couples the right to marry. The three-judge panel gave no timetable for releasing an opinion in the case. It is widely expected that the matter will wind up before the state supreme court regardless of the appeals court's eventual decision.
The seven same-sex couples sued the state for the right to marry, but their case was rejected by a lower court last year. The attorney for the couples told the appeals court Tuesday that the ban on same-sex marriage is discrimination that should be struck down much like previous laws that once barred interracial couples from marrying. "The government is marking this group of individuals as inferior," said attorney David Buckel. "That's what used to be called 'separate but equal.'"
Massachusetts is the only state that currently allows gay marriages. Asst. Atty. Gen. Patrick DeAlmeida argued that was an indication that New Jersey's law should be upheld by the court. "The trend in this country is to limit marriage to one man and one woman," DeAlmeida said. He argued that the state had adequately addressed the concerns of gay couples through the domestic-partnership law that went into effect earlier this year. That law offers same-sex couples guarantees to rights on issues such as medical benefits and taxes.
DeAlmeida also reiterated a contention the state made in earlier arguments: that the law should only be changed by an action of the legislature. But appellate division judge Anthony J. Parrillo asked DeAlmeida if other state laws and inaction by the legislature really supported New Jersey's ban on gay marriage. "Does this trend immunize the law from challenge?" Parrillo asked. "Isn't the state really running out of rationales for outlawing same-sex marriage? Isn't that another way of explaining moral disapproval?"
Later the judge asked how allowing gay couples to marry could hurt the institution when so many heterosexual unions end in divorce. "With the divorce rate among heterosexual couples so high, how is it diminished by those who want to make the same deep commitment?" Parrillo asked. The judges also questioned Buckel on what broader effects any change in the state's definition of marriage would have on other matters. They asked if polygamists could make the same arguments as gay couples. "In many cultures polygamous marriage has been recognized," said Judge Stephen Skillman. "Why can't a number of arguments be made recognizing that status?"
Parrillo also questioned Buckel on the argument that preventing same-sex marriage was an intrusion by the government on privacy. "Where is the government interference in this case?" Parrillo said. "The primary interest you are advancing is really the right to a public recognition, not to prevent an unwarranted government action." Buckel responded that same-sex couples should not be denied the right to marry simply because of past practices. "That's nothing more than saying this should persist because it always has," Buckel said.