News Column

N.J. Girds for Same-Sex Marriage Fight

July 3, 2013

In the latest sign that New Jersey is shaping up to be the next front in the battle over gay marriage, lawyers for six gay couples and their children filed a motion Wednesday saying that last week's U.S. Supreme Court ruling invalidating the federal Defense of Marriage Act means that gay couples in the Garden State must be permitted to wed immediately.

Mercer County Assignment Judge Mary C. Jacobson has put the case on an accelerated schedule, calling a hearing for Aug. 15 to consider the motion and the state's response, which is due in 30 days.

Advocates of same-sex marriage across the country will be watching with great interest.

Their belief that New Jersey could be the next state to extend marriage rights to same-sex couples is based on indications that a majority of residents _ 59 percent, according to a Rutgers-Eagleton Poll released June 17 _ favor gay marriage, as well as what they see as a relatively welcoming legal climate in which gay couples already are permitted to enter into civil unions.

It is one of the few states that doesn't permit same-sex marriage but also does not have a constitutional amendment expressly prohibiting it. Such restrictions, in place in 31 states, represent a significant roadblock to same-sex marriage advocates because they are difficult to overturn.

New Jersey is one of five states that allow civil unions, though one _ Rhode Island _ is set to allow gay marriages as of Aug. 1. Two others _ Colorado and Hawaii _ have enacted constitutional amendments banning gay marriage.

That leaves Illinois, where a gay-marriage bill supported by Gov. Pat Quinn cleared the state Senate in February but stalled in the House in May after religious conservatives objected. A pair of lawsuits seeking to legalize gay marriage in the state is slowly making its way through the courts there, though lawyers for plaintiffs have said they plan to file motions based on the U.S. Supreme Court ruling soon.

Given Gov. Chris Christie's steadfast opposition to same-sex marriage, the state court case represents the clearest path forward for gay-marriage advocates in New Jersey. Christie vetoed a bill that the Legislature approved last year, and Democratic leaders in Trenton acknowledged this week that they do not have enough votes to override the veto.

Christie continued to criticize the Supreme Court ruling on Wednesday. But Patrick Murray, director of the Monmouth University Polling Institute, said a favorable outcome for gay marriage in the state court system could give the governor political cover, helping him to duck a divisive social issue as he prepares for a possible run for president in 2016.

"The worst thing that happened to Chris Christie about gay marriage was that a bill ended up on his desk and so he had to take a stand that would affect his moderate credentials," he said.

The motion for summary judgment filed Wednesday in Superior Court in Mercer County seeks to accelerate a 2011 case filed by Hayley J. Gorenberg of Lambda Legal Defense and Education Fund; a second attorney, Lawrence S. Lustberg, on behalf of Garden State Equality, the state's largest gay-rights group; and six New Jersey gay couples and their children.

The state's civil-union law, they argued Wednesday, puts gay couples on an unequal footing in important areas ranging from health care to taxes to inheritance issues because the federal government doesn't recognize the unions.

"Married same-sex couples in states that respect their marriages are eligible for the complete, vast array of federal rights, benefits and obligations," the motion said. "New Jersey denies these numerous federal benefits to same-sex couples in New Jersey."

Lambda Legal announced its intention to file the motion on June 26, the day the U.S. Supreme Court struck down the federal Defense of Marriage Act as unconstitutional, saying the ruling bolstered their case.

Greg Quinlan of the New Jersey Family Policy Council, a conservative group that opposes gay marriage, called the arguments in the motion "dumb." He said that many married couples are subject to a "marriage penalty" because they are required to pay more when they jointly file federal tax returns, and that other benefits could be secured by legal agreements between same-sex partners.

In their legal case, Gorenberg and Lustberg are trying to build off a 2006 New Jersey Supreme Court ruling that ordered the state to extend the same legal rights and financial benefits to gay and straight couples.

The ruling didn't, however, require the state to legalize gay marriage, and the Legislature opted to approve civil unions instead.

Supporters of gay marriage say that civil unions don't work, pointing to a 2008 study that found unequal treatment in areas like employment and health care.

The state has argued that marriage has traditionally been between a man and a woman and that the state Supreme Court ruling doesn't require New Jersey to legalize gay marriage.

But Gorenberg and Lustberg, in their filing Wednesday, said the U.S. Supreme Court's ruling last week tilts the legal scales in their favor, noting that Justice Anthony Kennedy, writing for the five-justice majority, said that the Defense of Marriage Act placed same-sex couples in a "second-tier marriage" in the eyes of the federal government.

The state Attorney General's Office, which is arguing the case on behalf of the state, declined to comment on Wednesday.


(c)2013 The Record (Hackensack, N.J.)

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Source: Copyright Record (Hackensack, NJ) 2013

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