Court: N.J. gay couples entitled to same rights as heterosexual couples  | News | Advocate.com

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October 26, 2006
Court: N.J. gay couples entitled to same rights as heterosexual couples
Court: N.J. gay couples entitled to same rights as heterosexual couples

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 the marriage 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 that a 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 equally available 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)

© 2008 Regent Media, Inc. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed. AP contributed to this report.

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