Same-sex marriage
case goes before New Jersey's highest court

Advocates for and against same-sex marriage will be watching New Jersey on Wednesday when their debate--which touches on tradition, civil rights, and the very definition of marriage--is argued before the state supreme court in Trenton. Activists on both sides of the issue are to hold rallies Wednesday outside the Richard J. Hughes Justice Complex where the supreme court meets, and their rhetoric is expected to center on how their opponents' notion of "family" is misguided and potentially harmful to children. In the courtroom, though, the arguments figure to be less about same-sex marriage as policy and more about who should decide whether to allow it: lawmakers or judges. The state attorney general's office, which is defending New Jersey's ban on same-sex marriage, argues the legislature should make such important and controversial decisions. "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," state deputy attorney generals Patrick DeAlmeida and Mary Beth Wood wrote in a brief. Supporters of marriage equality say the court is the appropriate venue. "Courts get involved when there is a problem with a constitutional line," said David Buckel, the lead counsel for Lambda Legal, which is representing the seven gay couples suing the state for the right to marry. Denying marriages to two men or two women is akin to denying a man and a woman of different races the right to marry, Buckel argues. The last laws banning interracial marriage were struck down in 1967. Robert F. Williams, a professor at Rutgers University School of Law in Camden and an expert on New Jersey's constitution, said the court must interpret the first clause of the document, which declares, "All persons are by nature free and independent." So far, both a superior court judge and a three-judge appellate panel have sided with the state in the case, known as Lewis v. Harris. Still, advocates think that in politically moderate New Jersey, they have a chance of seeing same-sex marriage allowed. The state high court has been friendly to gay rights causes in the past. It was among the first states, in the 1970s, to strike down a ban on sodomy. It has ruled in favor of adoption rights for gay couples and found in a decision that was later overturned by the U.S. Supreme Court that Boy Scouts should not be allowed to meet in public schools because the organization discriminates against gays. And New Jersey lawmakers, while never seriously considering allowing same-sex marriage, have been quick to recognize same-sex unions. Lawmakers adopted a domestic-partnership law in 2004, paving the way for the Garden State to be one of seven states that in some way formally recognizes same-sex unions. The law extended some benefits of marriage, in areas such as taxes and hospital visitation, to gay couples. The couples, all long-term partners, suing for the right to marry say the domestic-partnership law doesn't go far enough. "For us, being married to each other is the most valuable thing in the world," said Sarah Lael, of South Brunswick, who, along with her partner of nearly 16 years, is among the plaintiffs. "It's the only language people understand." Courts generally have not seen marriage as a fundamental right. Massachusetts, Hawaii, and Vermont have the only high courts that found their states should treat same-sex couples the same way they treat heterosexual couples. Massachusetts is the only one that allows same-sex marriage, though there's been a push for more than two years to amend the state constitution to ban the practice. After Hawaii's marriage equality decision in 1999, the state constitution was amended to allow the legislature to ban same-sex marriage. And that's what lawmakers there did. In 2000, Vermont created civil unions, which are like marriage but do not offer any of the federal benefits of marriage and are not recognized in most other states. Gay rights activists in New Jersey say that if they lose at the state supreme court, they will likely push for lawmakers to create civil unions, or at least expand the protections in the domestic-partnership law. Opponents say if the supreme court allows the unions, they will attempt to pass a constitutional amendment defining marriage strictly as the union of a man and a woman. John Tomicki, chairman of the Coalition to Preserve and Protect Marriage, said an amendment is already written. "Marriage: Look in the dictionary," Tomicki said. "Look in the dictionary. It's one man and one woman, period. It's not a matter of rights. It's a matter of definition." (AP)