Harvey urges high
court to rebuff gay union claim
BY ROBERT SCHWANEBERG,
Star-Ledger Staff, From NJ.com on the Web, January 7, 2006
Attorney General Peter Harvey urged
the New Jersey Supreme Court yesterday to reject claims that the state
constitution guarantees same-sex couples the right to marry.
The justices set oral arguments in the case for Feb. 15, according to the lawyer
for six gay or lesbian couples who sued for the right to marry.
The attorney general's 60-page legal brief repeats arguments that proved
successful in two lower courts: that there is no constitutional right to
same-sex marriage and only the Legislature can create such a right.
"This case presents the question of whether the New Jersey Constitution demands
that the long-standing definition of marriage be changed by judicial fiat to
grant plaintiffs a right that has never been recognized in our state: the
ability to enter into a government-sanctioned, same-sex marriage," Assistant
Attorney General Patrick DeAlmeida wrote.
"The power to define marriage rests with the Legislature, the branch of
government best equipped to express the judgment of the people on controversial
social questions such as the recognition of same-sex marriage," he added.
David Buckel, a lawyer with the gay rights organization Lambda Legal, said, "The
state is still misunderstanding how our democracy works."
"The courts are there under our system of checks and balances to make sure the
Legislature hasn't crossed the line under the constitution of our state.
That's what's happened here," Buckel said.
That line, Lambda Legal argued in legal papers filed in October, is a provision
of the New Jersey Constitution that states: "All persons ... have certain
natural and unalienable rights" including "obtaining safety and happiness."
Yesterday, DeAlmeida said it was "impossible" to stretch that provision to
guarantee a right to same-sex marriage.
"Because the accepted understanding of marriage has always been a union between
people of different genders, it is inconceivable that the framers of the
constitution intended to guarantee people of the same sex the right to marry as
an element of personal privacy," he wrote.
He added the court should leave the issue to the Legislature, which has shown it
is "the proper forum" for defining the rights of same-sex couples by enacting a
law allowing them to form domestic partnerships. Such unions provide some,
though not all, of the benefits and obligations of marriage.
Last June, a state appeals court ruled 2-1 that the state constitution gives
people of the same sex no right to marry each other. The split vote gave
gay activists an automatic right to appeal to the state Supreme Court.
Buckel said it was "fitting" that the justices decided to hear the case "during
the week of Lincoln's Birthday, which reminds us of how important the principle
of equality is to our nation, and Valentine's Day, which is about love."
Robert Schwaneberg covers legal issues. He may be reached at
rschwaneberg@starledger.com or (609) 989-0324.
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