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Appellate judges mull gay marriage rightsBy JOSEPH DEE, The Times (nj.com) from the Web, December 8, 2004
Seven gay and lesbian couples who have been denied marriage licenses are appealing a 2003 ruling by Mercer County Superior Court Judge Linda R. Feinberg that homosexuals do not have marriage rights. David S. Buckel, the attorney from Lambda Legal Defense and Education Fund who argued on behalf of the gay couples, asked the judges to reverse Feinberg's ruling. The briskly paced arguments, held at the Richard J. Hughes Justice Complex on Market Street, started shortly after 10 a.m. and concluded a mere 37 minutes later. No timetable for a decision was given. Whatever the outcome, the matter is almost certain to be appealed to the state Supreme Court for a final verdict. Because the case is based on the state constitution, there would be no appeal to the U.S. Supreme Court. The judges, Stephen Skillman, Donald G. Collester and Anthony J. Parrillo, interjected questions during Buckel's argument, asking him where the redefinition of marriage would end. If the state has no right to restrict marriage to opposite genders, what right does it have to prohibit incestuous marriages or polygamy, they asked. Buckel said his clients are not challenging either of those prohibitions and said, "there are interests the state can advance" to prevent such marital arrangements. Near the end of the hearing he argued, "The specter of polygamy and incest has come up each time the definition of marriage has changed -- when the ban on interracial marriage was dropped ... Polygamy and incest did not flourish in judicial doctrine afterwards, and that's because courts can draw these lines in support of the interests of the state." The last prohibitions on interracial marriage were snuffed out by the U.S. Supreme Court in 1967. But Assistant Attorney General Patrick DeAlmeida argued that if the court begins to alter the definition of marriage, individuals could assert the right to have multiple spouses. "You're saying that's a slippery slope," Judge Collester said. "Yes, your honor," DeAlmeida said. The assistant attorney general said there is nothing in American law, except for the decision by the Massachusetts Supreme Court, that permits gays to marry. He noted 11 states adopted constitutional amendments last month to restrict marriage to a man and woman only. "In fact, the federal Constitution has been interpreted to prohibit same-sex marriage, Congress has enacted laws to prohibit same-sex marriage, 39 states prohibit same-sex marriage," DeAlmeida said. "The trend in this country is to limit marriage to one man and one woman." When
DeAlmeida suggested
"The rational basis is to maintain our traditional definition of marriage," DeAlmeida replied. "To say (the ban) should persist because it always has, confounds constitutional analysis," Buckel said. "Does societal, cultural values play no part in constitutional analysis?" Skillman asked him. "The court's role is to see where it is that the Legislature crosses over the boundary," Buckel said. "Draw lines?" Skillman asked. "No your honor. The lines are defined by the constitution itself," Buckel said. "The court plays the role of determining where it is the Legislature has crossed the line, not to re-write the lines." When Buckel argued that the New Jersey Domestic Partnership Act falls far short in granting gay couples the same rights as married heterosexuals, Collester asked why the plaintiffs do not challenge the statutes that deny them their rights, rather than seek the right to marry. "That would be an avenue, your honor," Buckel conceded. But, he argued, "What we're challenging here is the government's brand of inferiority on a group of individuals that are set apart for different treatment. The state is the gatekeeper to this vast institution that is called marriage." DeAlmeida
argued that many of the complaints lodged by the plaintiffs have been addressed
by the New Jersey Domestic Partnership Act, which grants same-sex couples
inheritance tax benefits, hospital visitation and other rights enjoyed by
married heterosexuals. Other laws that prohibit
discrimination add to the protection of homosexuals in
"Plaintiffs' rights ... have been quite adequately addressed in the Domestic Partnership Act," DeAlmeida said. He also argued that the framers of the state's 1947 constitution could not possibly have envisioned that it included the right for gays to marry. But Collester rebutted, "Lots of things are outside the conception of the framers of the New Jersey Constitution of 1947 which have come about." He mentioned the Karen Ann Quinlan case that established the right to die. DeAlmeida concluded, "It's outside judicial authority to start redefining marriage. The Legislature has made a concerted effort to protect same-sex couples in this state. And the Legislature's decisions (about the extent of those protections) should be respected by this court. There is nothing in constitutional history to allow the judicial to override the other branches in this case." Many of the gay and lesbian plaintiffs, some with children in tow, attended the arguments and fielded questions from reporters afterwards. "I guess
I'm full of hope," said Sarah Lael of
She said the Domestic Partnership Act does not go far enough. For instance, her employer does not offer health insurance to those who register with the state as domestic partners, she said. She and her partner have not registered. The act does not require private employers to offer such coverage. Cindy
Meneghin and Maureen Kilian of
"I really hope they get married," Josh said. "They love each other very much. It's unfair that they would be denied the rights of other couples." Several dozen clergy members from various denominations also mingled with reporters to express support for the couples in their bid to win marriage rights. "I've
performed many same-sex marriages as a minister," said the Rev. Charles Stephens
of the
"I'm here to support these people who are seeking equal treatment under the law," said the Rev. Martin Townsend, assistant bishop of the Episcopal Diocese of Newark. Numerous individuals and organizations oppose same-sex marriage, including Republican gubernatorial candidate and Bogota Mayor Steve Lonegan. In a news release posted yesterday on his Web site, Lonegan urged the Legislature to put a constitutional amendment on the 2005 ballot to define marriage as between a man and a woman only.
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