New Jersey Gay
Marriage Suit
Headed for State's
Highest Court
Patricia Schauder,
Bloomberg.com from the Web, June 20, 2005
Trenton, NJ June 19 -- The
fight to legalize gay marriage is headed to the highest court in New Jersey,
where advocates say past decisions may give them an advantage.
Seven same-sex couples plan to appeal this week's decision by a lower court that
said New Jersey's constitution doesn't allow gay couples to wed, according to
David Buckel, senior counsel for Lamda Legal, which is representing the
plaintiffs. Buckel's group is pressing the issue in New Jersey because the
state is one of five that offers legal rights such as joint tax status to gay
couples.
Supporters of same-sex marriage are seeking to use the case, the subject of
front page articles in the Star Ledger and Trenton Times, to counter laws passed
by 11 states last November that bar same-sex unions. Massachusetts is the only
state where gay partners can legally marry.
New Jersey courts "have shown they know how to apply equal-rights provisions to
gay people," said Suzanne Goldberg, a professor at Rutgers Law School in Newark
who filed a brief in support of the plaintiffs. "Marriage has never been
religious in the state."
The state's Supreme Court in 1999 ruled the Boy Scouts couldn't prevent James
Dale, a gay former Eagle Scout, from being an assistant scoutmaster, a decision
that was overturned by the U.S. Supreme Court the following year. New
Jersey courts have also ruled that a lesbian who wasn't the biological parent of
a child can be granted parenting rights, even when the biological parent
objects.
New Jersey is "probably the most moderate state in the entire country," said
Buckel. "There are conservatives in New Jersey, but they are
quintessentially moderate."
State's Argument
In its 2-1 decision, New Jersey's appeals court concluded that the state's
constitution doesn't require the recognition of gay marriage, dealing a setback
to the seven same-sex couples who filed suit in 2002 after being denied marriage
licenses in towns such as Union City and Haddonfield.
"Plaintiffs' claim of a constitutional right to state recognition of marriage
between members of the same sex has no foundation in the text of the
constitution, this nation's history and traditions or contemporary standards of
liberty and justice," Appellate Judge Stephen Skillman wrote for the majority.
The appeals court sided with the state's argument that the power to define
marriage rests with the Legislature and that the plaintiffs should pursue their
goals in the "halls of the Statehouse."
A bill to legalize gay marriage in California failed earlier this month after
Democratic Assemblyman Mark Leno brought the measure to a vote three times in
one day. The issue remains the subject of a court battle.
Debatable
New Jersey Attorney General Peter Harvey needs only to convince the Supreme
Court justices that the issue of whether New Jersey's constitution guarantees
same-sex unions is debatable, said Mathew Staver, president and general counsel
at Liberty Counsel, which provides legal help to churches and other
organizations fighting cases involving religious issues.
"If it is debatable, then the state has the constitutional right to choose one
side of that debate," Staver said in an interview.
The court also is unlikely to accept arguments that the state should allow
same-sex couples to marry because they will have children and become partners
anyway, he said.
"Because people may have adulterous relationships, that doesn't mean that you
should therefore legalize polygamy," Staver said. "Just because one
segment of society wants to bend off one way or another, doesn't mean that
society has to change its entire structure to go along."
Dissenting Opinion
Buckel is betting the high court will agree with what he called the strongly
worded dissent of appellate Judge Donald Collester, who wrote that the right to
marry is "effectively meaningless unless it includes the freedom to marry a
person of one's choice."
Buckel said he'll file the Supreme Court appeal "as soon as possible," and
expects briefs to be filed within the next several months. He declined to
provide a more specific timetable.
Working through the courts, rather than the legislature, remains the main
strategy of those who want to legalize gay marriage in New Jersey, said Steven
Goldstein, chairman of Garden State Equality, a gay-rights organization that has
held a series of 17 town-hall meetings on the issue since 2003.
New Jersey residents favor allowing same-sex couples to marry by a 55 percent to
40 percent margin, according to a poll of 804 voters commissioned by Goldstein's
group and conducted by Zogby International. Some 61 percent of those
polled said they disagreed with having a constitutional amendment blocking gays
from marrying.
"We believe the state constitution already allows us to marry," Goldstein said
in an interview. "Why should we who pay the same brutally high taxes in
New Jersey not have the same freedoms?"
Patricia Schauder in Trenton, New Jersey at
pschauder@bloomberg.net.
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