NJ Marriage Case Heading to Supreme Court

June 20, 2005

TRENTON — 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.

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.

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.

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.