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NJ Court Backs Rights for Gay Unions

Published on Wednesday, October 25, 2006 by the New York Times
N.J. Court Backs Rights for Gay Unions
by Laura Mansnerus

The State Supreme Court in New Jersey said today that under equal protection guarantees of the state constitution, same-sex couples “must be afforded on equal terms the same rights and benefits enjoyed by opposite-sex couples under the civil marriage statutes.”

But it said that whether that status is called marriage or something else “is a matter left to the democratic process.”

In a 4-3 vote, the court found that an arrangement similar to that of Vermont, which authorizes civil unions between same-sex couples but does not call them marriages, would be consitutional in New Jersey.

The court gave the legislature a six-month deadline to enact the necessary legislation to provide for same-sex unions.

Courts in many other states have rejected similar lawsuits by same-sex couples, ruling, as the Court of Appeals of New York did in July, that only the legislature can define or redefine marriage. No legislature has done so, despite widespread shifts in public opinion in the last few years, and the recognition of domestic partnerships and civil unions in some states.

Only Massachusetts so far authorizes same-sex marriages. Since the Massachusetts Supreme Court held in 2003 that that full marriage rights were required for all couples under that state’s constitution, gay-rights advocates have suffered a string of defeats. The Court of Appeals of New York rejected a similar argument in July.

Nineteen states have adopted constitutional amendments banning same-sex marriage. Most others have explicit statutory bans --- though New Jersey does not. New Jersey is among several that recognize domestic partnerships, and Vermont and Connecticut authorize civil unions, affording more legal protections. .

In part because the New Jersey Supreme Court is known as liberal and, above all, independent, the case here had garnered national attention.

The case was brought by seven gay and lesbian couples, who have been together from 14 to 35 years and were denied marriage licenses. Five of them have children.

The trial-level and lower appellate courts rejected their claim that the state constitution protected their right to marry as heterosexual couples do. The Appellate Division said in June 2005 that marriage between members of the same sex was neither a fundamental right under the constitution nor one protected by its equal protection clause.

The Supreme Court heard the case, Lewis v. Harris, on Feb. 15.

Under New Jersey’s domestic partnership law, enacted in 2004, same-sex partners may make critical medical decisions for each other, for example, and must be offered the same health coverage by insurers that is given to spouses.

The law was approved by the Legislature with little dissent and signed by then-Gov. James E. McGreevey --- who at the time did not support fully legalized gay marriage, even though he would resign several months later with the statement, “I am a gay American.”

Mr. Goldstein was among those who celebrated the domestic partnership law, but he would later find that it fell short of expectations. He said on Wednesday that “hospitals and other employers have told domestic-partnered couples across New Jersey: We don’t care what the domestic partnership law says. You’re not married.”

In the last few years, public opinion has become more accepting of gay marriage, at least in New Jersey. A Rutgers-Eagleton poll of New Jersey residents taken in June found that 50 percent said they supported allowing same-sex couples to marry legally, while 44 percent were opposed. (The margin of error was plus or minus 4 percentage points.) When the poll asked the same question in 2003, 43 percent of respondents supported legal recognition for gay marriage and 50 percent were opposed.

Still, conservative opposition has also organized, culminating in proposed constitutional amendments on the ballot in 11 states in 2004. All were approved overwhelmingly.

Last summer, the New York Court of Appeals ruled in a 4-to-2 decision that it would not depart from the state’s century-old law defining marriage as the union of a man and a woman. Chief Judge Judith S. Kaye wrote, in a sharply worded dissent, that “a history or tradition of discrimination --- no matter how entrenched --- does not make the discrimination constitutional.”

© Copyright 2006 New York Times


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