Arguments Heard in NJ Marriage Case

December 7, 2004

The state's refusal to allow same-sex couples to marry relegates them to second-class citizenship and should be overturned just as racial segregation was struck down in an earlier era, a gay- rights lawyer told a state appeals court yesterday.

An assistant attorney general argued that redefining marriage is a job for lawmakers and warned the judges that if they take it on they could open the door to polygamy.

In a case that could make New Jersey the second state, after Massachusetts, to allow people of the same sex to marry, three Appellate Division judges heard arguments for 40 minutes yesterday in a courtroom in Trenton filled to capacity. As usual, the judges reserved decision.

David Buckel, director of the marriage project for Lambda Legal, a leading gay-rights organization, argued that refusing to allow the 16,000 same-sex couples in New Jersey to marry violates their rights of privacy and even-handed treatment under the state constitution.

The point is that the government is marking this group of individuals as inferior. That is what used to be called 'separate but equal.' We have learned in this society that 'separate' can never be 'equal,' Buckel said. He pointed to the historic 1954 U.S. Supreme Court ruling that overturned laws in 21 states providing for separate schools for black and white students.

Assistant Attorney General Patrick DeAlmeida replied that unlike racial equality — which is guaranteed by the state and federal constitutions — nothing in American law gives homosexuals a right to marry except for last year's ruling by the Supreme Judicial Court of Massachusetts.

Marriage has always been the union of people of different genders, DeAlmeida said, adding that in the November elections, 11 states amended their constitutions to limit marriage to one man and one woman.

Abandon that definition, DeAlmeida warned the judges, and there is no principled legal way to prohibit polygamy, or one person with several spouses. Buckel said that was dead wrong, but all of the judges — Stephen Skillman, Donald Collester and Anthony Parrillo — questioned whether same- sex marriage would lead to polygamy.

Buckel insisted it need not, adding that the specter of polygamy also was raised when courts had to rule on laws prohibiting people of different races from marrying. Those laws were struck down by the U.S. Supreme Court in 1967 and polygamy did not result, he said.

DeAlmeida also argued that any change in the ages-old definition of marriage must be instituted by the elected branches, meaning the governor and Legislature.

Senate President and acting Gov. Richard Codey was the prime sponsor of a law enacted earlier this year allowing same-sex couples to form domestic partnerships giving them some — but far from all — of the benefits and obligations of marriage.

As for going further and allowing people of the same sex to marry, Codey spokeswoman Kelley Heck said, I'm not aware of the governor having any plans to change the current law.

When Parrillo asked during the hearing why same-sex couples could not incrementally expand their rights by building on those they won under the domestic partnership law, Buckel replied that his clients are challenging the government's brand of inferiority in not being allowed to marry.

Any other words such as domestic partnership simply reaffirm that inferior status, Buckel said.

Present in the audience were nine of the 14 gays and lesbians who brought the lawsuit seeking the right to marry their partners.

The Rev. Mark Lewis, the lead plaintiff in the case, said he and his partner, the Rev. Dennis Winslow, have been together 14 years. Both are Episcopal priests.

The state holds out a smorgasbord of rights, responsibilities and protections at the stroke of a pen on a marriage license and we want them, Lewis said. Winslow added, We want to feel our relationship is supported by our government.

Cindy Meneghin and Maureen Kilian of Butler attended the arguments with their children Joshua and Sarah Kilian-Meneghin.

I would like them to get married and I think they deserve to get married, Sarah, 10, told reporters. Joshua, 12, added, I just think it's really not fair after being together 30 years that they're still not able to get married.

Buckel said that based on Census estimates, there are at least 5,000 children being raised by same-sex parents in New Jersey.

John Tomicki, executive director of the League of American Families and an opponent of same- sex marriage, said: The issue belongs in the Legislature. It is clear there is no support in New Jersey — in the public or in the Legislature — for same-gender marriage.

Buckel said however the case is decided it is very likely to go to the state Supreme Court.