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)
