New Jersey seeks dismissal in marriage lawsuit

By Advocate.com Editors

Originally published on Advocate.com March 01 2003 1:00 AM ET

A gay rights group is working on a response to New Jersey's request to dismiss a lawsuit by seven same-sex couples seeking the right to marry. The state attorney general's office filed a motion in Mercer County, N.J., on Monday asking superior court judge Linda Feinberg to throw out the lawsuit. New York-based Lambda Legal Defense and Education Fund filed the lawsuit in June in Hudson County, N.J., alleging that the couples were being denied their constitutional right to equal protection under the law. The case was transferred to Mercer County in November.

In the state's motion, the attorney general argued that the New Jersey constitution provides no right to same-sex marriage and that judges should not invent it. The right to marry has always been understood in law and tradition to apply to couples of different sexes, and those who seek to change that must take their cause to the legislature, the attorney general also argued.

David Buckel, a Lambda attorney representing the couples, disagreed, saying Jim Crow laws that once discriminated against blacks were struck down by judges, not repealed by legislatures. The state's position, he said, "seems to boil down to a couple things: that this is the way it has always been and that there's no discrimination because gay people can marry--they just can't marry the person they're in love with. Opponents of freedom and equality have always said, 'Don't change things from the way they are.' If that's the case, women, African-Americans, and other minorities would not have won their equality and their freedom."

Wendy Berger, political director for the New Jersey Lesbian and Gay Coalition, said the state lacks viable legal arguments. "They have cultural ones and political ones," she said.