New
Jersey's supreme court ruled in favor of equal
protection for same-sex couples Wednesday but stopped
short of compelling the state to deem that status
"marriage," saying what to name it was up to the
legislature. The high court gave lawmakers 180 days to
incorporate gay couples into existing marriage laws or
create a new system of civil unions for them.
The 4-3 ruling is similar to the 1999
decision in Vermont that led to civil unions providing
equal rights and benefits to gay couples there, but it
does not go as far as Massachusetts's high court in
2003, which legalized marriage equality in name too.
New Jersey's current domestic-partnership laws provide
limited protections for same-sex couples, but with
this ruling gay and lesbian couples will soon
receive the full range of protections that straight married
couples enjoy.
''Although we cannot find that a fundamental
right to same-sex marriage exists in this state, the
unequal dispensation of rights and benefits to
committed same-sex partners can no longer be tolerated under
our state constitution,'' Justice Barry T. Albin wrote
for the majority's decision. "With this
state's legislative and judicial commitment to
eradicating sexual orientation discrimination as
our backdrop, we now hold that denying rights and
benefits to committed same-sex couples that are
statutorily given to their heterosexual
counterparts violates the equal protection
guarantee of Article I, Paragraph 1" of the New Jersey constitution.
"To comply with this constitutional mandate,
the legislature must either amend themarriage statutes to
include same-sex couples or create a parallel
statutory structure, which will provide for, on equal
terms, the rights and benefits enjoyed and burdens and
obligations borne by married couples," Justice
Albin added. "We will not presume thata separate
statutory scheme, which uses a title other than
marriage, contravenes equal protection principles,
so long as the rights and benefits of civil
marriage are made equallyavailable to
same-sex couples. The name to be given to the statutory
scheme that provides full rights and benefits to
same-sex couples, whether marriage or some other
term, is a matter left to the democratic process."
In her dissenting opinion, which two of her
colleagues joined, Chief Justice Deborah T. Poritz
wrote that she could find "no principled
basis" to distinguish equal rights and
benefits "from the right to the title of
marriage." Poritz, who stepped down from the
court Wednesday before turning the mandatory
retirement age of 70 on Thursday, also disputed the
majority's conclusion that there is no
fundamental right to same-sex marriage.
At the Human Rights Campaign, executive director
Joe Solmonese said in a statement that the
opinion "at its core" was "a pro-family, pro-equality
decision" and asked lawmakers to "embrace marriage
equality" as they consider their route forward.
Lambda Legal, which brought the suit forward on
behalf of seven plaintiff couples, concurred,
characterizing the decision as a "big step forward for
our community."
"The bottom line here is that the entire court
said that there must be a remedy for the inequality
that bars same-sex couples from marriage," said David
Buckel, the group's Marriage Project director, who
argued the case before the high court as lead counsel, in a
statement. "The question for the legislature is an easy one:
Whether to follow through on the support of the
majority of voters in this state to allow their gay
friends and neighbors to marry, including over 20,000
committed same-sex couples raising more than 12,000
children." Public opinion polls have shown that a
majority of New Jerseyans support marriage equality.
"The legislature cares about families and
helping people be more responsible for each other and
their children, so we hope it will pass a law quickly
to honor the freedom to marry for same-sex couples,"
Buckel added.
Jon Davidson, Lambda's legal director, added
that for the first time, all seven justices on a high
court panel found that the constitution guarantees
equal rights and benefits to same-sex couples. That was not
the case in Washington State, he said, another 4-3
cliffhanger ruling. "The discussion's not over,"
Davidson said. "We have six months to get the
legislature to allow same-sex couples to marry. And at
worst, same-sex couples in New Jersey will gain a vast
number of rights and benefits that they did not
formerly have."
In the case, the seven couples, who have been
together between 13 and 34 years and have several
children among them, were seeking full marriage
rights. After two lower courts ruled against them, they
appealed to the supreme court, which heard oral
arguments last February.
Leading the list of plaintiff couples are Mark
Lewis and Dennis Winslow, two Episcopalian pastors
from Union City who have been together for 15 years.
"We get moral approval from our church and those who love
us; what we need from our government isn't approval
but equality in legal rights and responsibilities,"
Lewis said in a statement before the ruling.
Although the plaintiffs got that--save the
title of marriage--not all interested observers
were pleased. New Jersey activists, for their part,
were openly outraged by the compromise. Following a
contingency plan for just this sort of result, Garden
State Equality launched an extensive call to arms
within an hour of the court's mid-afternoon announcement.
In a statement, the group said assembly speaker
pro-tem Wilfredo Caraballo, Assemblyman Brian Stack,
and Assemblyman Reed Gusciora will "rapidly" introduce
a bill to open marriage to same-sex couples. Garden
State Equality will immediately start airing a television
commercial featuring the late Laurel Hester, a police
lieutenant who spent her last days fighting for her
pension rights to be awarded to her partner. The
organization is also releasing a letter from 268 state
leaders calling on lawmakers to pass equal marriage, and
holding a rally on Wednesday evening.
"It wouldn't matter if the legislature added all
the rights in the world to the current law without
calling it marriage," said Garden State's chairman,
Steven Goldstein, in the statement. "Marriage is the
only currency of commitment the real world universally
understands and accepts."
Goldstein went on to outline a coordinated
strategy for the coming months, starting with creating
and leading a coalition of 150 organizations across
the state called the Statewide Task Force for a
Marriage Equality Statute. The "Equality Express" bus will
also take the case for marriage equality throughout
New Jersey on weekend tours.
And the previously announced "Awesome Autumn"
campaign will be accelerated. Goldstein described the
effort, centered on 50 public events, as "the most
concentrated, most ambitious statewide barnstorm ever
produced by a public interest organization in New Jersey."
Goldstein also promised "dozens of more actions"
geared toward winning the right to marry within the
court's deadline. "So help us God, we will never give
up and we will never give in to those who tell us no,"
Goldstein said. "Hell no. Over our dead bodies will we
settle for less than 100% marriage equality.
"We will continue to exhaust our opponents until
we win the marriage equality our families deserve. We
will continue to outthink, outwork, and outhustle the
hatemongers every step of the way."
Davina Kotulski, head of Marriage Equality USA,
described the decision as "bittersweet" and called for
the legislature to steer clear of "civil unions,
domestic partnerships, reciprocal beneficiaries, and
new 'whoseewhatsits' terms invented to keep the distinction
between same-sex couples and different-sex couples."
Outside the supreme court, news of the ruling
caused confusion, with many of the roughly 100
same-sex marriage supporters present asking each other
what it meant. Many started to agree that they needed to
push for a state constitutional amendment to institute
same-sex marriage.
Gay couples in New Jersey can already apply for
domestic partnerships under a law the legislature
passed in 2004 giving gay couples some benefits of
marriage, such as the right to inherit possessions if there
is no will and health care coverage for state workers. Gov.
Jon S. Corzine, a Democrat, supports domestic
partnerships but not same-sex marriage--although
he has said he would follow whatever the court ruled.
Supporters pushing for full same-sex marriage
have had a two-year losing streak in state courts in
New York and Washington as well as in
Nebraska and Georgia, where voter-approved bans on same-sex
marriage were reinstated. They also have suffered at
the ballot boxes in 15 states where constitutions have
been amended to ban same-sex unions.
Cases similar to the one ruled on Wednesday are
pending in California, Connecticut, Iowa, and
Maryland. ''New Jersey is a stepping stone,'' said
Matt Daniels, president of the Virginia-based Alliance for
Marriage, a group pushing for an amendment to the
federal Constitution to outlaw same-sex marriage.
''It's not about New Jersey.'' (Ann Rostow, Barbara
Wilcox, and the AP contributed to this report)
