Court says no to
same-sex marriage in New Jersey

Marriage rights for same-sex couples are not protected by New Jersey's constitution and will not be recognized in the Garden State unless legislators change the law, a state appeals panel ruled Tuesday. The issue will now go to the state supreme court because proponents of same-sex marriage plan to appeal the 2-1 decision, and the high court must accept cases from split appellate panels. The ruling, rejecting the efforts of seven same-sex couples to marry, said legislators will have to act before such couples can marry in New Jersey. "A time may come when our society accepts the view that same-sex couples should be allowed to marry. If there were such an evolution in public attitudes, our legislature presumably would amend the marriage laws to recognize same-sex marriage," appellate judge Stephen Skillman wrote for the majority. "A constitution is not simply an empty receptacle into which judges may pour their own conceptions of evolving social mores," said the majority opinion, which upheld a 2003 lower court ruling. In his dissent, appellate judge Donald G. Collester said that if marriage is defined strictly as a heterosexual union, then couples are denied the right to marry the person of their choice and so have no real right to marry. "The argument is circular: plaintiffs cannot marry because by definition they cannot marry," he wrote. "If marriage by definition excludes plaintiffs from marrying persons of their choosing, then, unlike all others, they have no fundamental or constitutionally protected right and must seek creation of that right through the political process and a legislative redefinition of marriage." Using a definition of marriage that excludes gays and lesbians robs same-sex couples "of constitutional protections and deprives them of the same rights of marriage enjoyed by the other individuals of this state, even those confined in state prisons," Collester said. The third panel member, appellate judge Anthony J. Parrillo, wrote a concurring opinion, underscoring his belief that elected officials, not judges, should make the call on same-sex marriage. "It is, therefore, a proper role for the legislature to weigh the societal costs against the societal benefits flowing from a profound change in the public meaning of marriage," Parrillo said. "The choice must come from democratic persuasion, not judicial fiat." Massachusetts is the only state that currently allows same-sex marriages, which the New Jersey attorney general's office referred to in arguing the case by saying that that one exception shows it is typical to limit marriage to one man and one woman. "To say that same-sex [couples] have the right to marry is to redefine marriage. It's not circular at all," Asst. Atty. Gen. Patrick DeAlmeida said in an interview Tuesday. Mark Lewis, the lead plaintiff in the case who has been with his partner for 14 years, said he will keep fighting. "My reaction is always the same: I'm disappointed, but I'm not discouraged," said Lewis, of Union City. "That's the way it always is in a civil rights case." Steven Goldstein, head of Garden State Equality, a gay rights group, claimed Tuesday's ruling as a victory. "The dissent was strong, cogent, and even a little blistering," he said. "We believe we're going up to the supreme court in very good shape, particularly with public opinion on our side." Because the case is based solely on the state constitution, the New Jersey supreme court will be its final arbiter, said David S. Buckel, who handled the case for Lambda Legal, a gay rights group. New Jersey, in making its case, also contended that it had addressed the concerns of gay couples through a domestic-partnership law that went into effect in 2004. That law offers same-sex couples various rights, including making medical decisions for each other and tax benefits. (AP)