Searching for 'happily ever after'

7 same-sex Jersey couples, some raising kids, want to be permitted to marry

BY ROBERT SCHWANEBERG, Star-Ledger Staff, Dec 06, 2004

It is early evening in the Nicholson-McFadden household and soup simmers on the stove as 22-month-old Maya nestles in her mother's lap, watching an Elmo videotape.

Her brother, Kasey, a 5-year-old bundle of energy, shows off a crayon-colored headband he made, then his decorated treasure box, then a picture he just drew.

Their parents have been together 14 years and have jointly owned this ranch house on a suburban street in Aberdeen, Monmouth County, since 1991. They started their own business out of their home so both could be close to the kids. Now, they would like to do one more thing for their family.

Marcye and Karen Nicholson-McFadden want to marry each other.

They are one of seven same-sex couples who claim the state constitution gives them the same right to marry as heterosexual couples. Tomorrow, their case will be heard by a state appeals court. If the court agrees with them, New Jersey could become the second state, after Massachusetts, to allow people of the same sex to marry.

That would represent "a sea change" in both society's understanding of marriage and the law of New Jersey, state Attorney General Peter Harvey said. If such a change is to be made, he contends in court papers, it must be done by the Legislature, not the courts.

Unlike most states, New Jersey does not define marriage as the union of a man and a woman. But, Harvey's office contends, that simply proves "same-sex marriage was so foreign a concept to lawmakers in 1912," when the marriage laws were written, "that a ban hardly needed mention."

Even Marcye Nicholson and Karen McFadden did not imagine they might one day marry when, as twenty-somethings, they started dating in 1989.

"If you come to an understanding at a young age that you're gay, it was never even on the radar screen that you could marry the person you love," said Karen, 38, who grew up in Broomall, Pa., outside Philadelphia.

Marcye is two years older and grew up traveling the country as her father moved from one huge construction project to another. She and Karen met at a district sales meeting while they both worked for Procter & Gamble. They fell in love, moved in together on Long Island in 1990 and jointly bought their house in Aberdeen the next year.

Each wears a thick band, cut from the same block of gold, on her left ring finger.

"We consider it a marriage ring, and it's a symbol obviously to the outside world that we're quote-unquote 'married' -- so nobody gets the wrong idea," Karen said. In 1997, they legally changed their last names to Nicholson-McFadden.

But as they sought other ways to protect each other and their children, they became increasingly aware of the many "injustices" same-sex couples face, Marcye said. In June 2002, she said, they walked into Aberdeen town hall and applied for a marriage license.

"You have to do it at the bride's place of residence," Karen said. "We walked in and woman said, 'Who's the bride?' and we said, 'We both are.'"

Marcye said the clerk made a phone call to Trenton and politely told them they were not eligible. Later that month, they joined the six other gay and lesbian couples in a lawsuit filed by Lambda Legal Defense and Education Fund. They lost at the trial court level in November 2003.

Lambda's appeal from that decision has drawn nationwide attention. The American Psychological Association, National Association of Social Workers, American Civil Liberties Union, National Organization for Women, 23 history and legal scholars and 111 New Jersey clergy members are among those urging the court to recognize same-sex marriages. So is Asbury Park, which briefly issued same-sex marriage licenses and performed one wedding before Harvey ordered it to stop.

Friend-of-the-court briefs opposing same-sex marriage have been filed by the New Jersey Catholic Conference and an array of groups dedicated to preserving traditional notions of the family. Their common theme is that changing the way marriage has been defined for millennia will do great harm to families and children.

Marcye said she and Karen wanted "a kid-centered life" and have sacrificed to make that possible. Marcye, the family breadwinner, runs an executive search business from her home office, leaving Karen free to be a full-time mom.

"We're actually in some ways pretty traditional: two parents, two kids and one parent stays home," Marcye said.

They each conceived a child through artificial insemination. Marcye carried Kasey, who was then adopted by Karen. Then, Karen carried Maya, who was adopted by Marcye. By court ruling, New Jersey has allowed members of same-sex couples to adopt their partner's children since 1995.

They do not know who the genetic father is except that it was the same donor for both children, giving them a shared biology, Karen said. But while they willingly share the genetic and legal details, they are adamant on one point: these are their children.

"We had a child together," Karen said of Kasey's birth. "People will say Kasey is Marcye's child, and that makes me crazy. They're both my kids."

Marcye, who feels the same, said, "I think as a society most of us are beyond how kids are brought into being."

To some opponents of same-sex marriage, biology matters a lot.

"A same-sex couple can never provide a child with the advantages of being raised by both biological parents," the Family Research Council, a Washington, D.C.-based advocacy group, wrote in its brief.

A coalition that includes the Catholic Conference and the New Jersey Family Policy Council contends that by endorsing same-sex marriage, "law and government will be making a powerful statement: our government no longer believes children deserve mothers and fathers."

"If two mothers are just the same as a mother and a father, for example, why can't a single mother and her mother do just as well as a married mom and dad?" the coalition asked rhetorically. "Why are dads relevant at all?"

Some supporters of gay rights worry that moving too quickly to legalize same-sex marriage could be counterproductive. One of them, Sen. Raymond Lesniak (D-Union), said that is why the state enacted a law earlier this year allowing same-sex couples to form "domestic partnerships." It gives them some, but far from all, of the benefits and obligations of marriage. By passing it, Lesniak said, lawmakers were saying no to same-sex marriage "at this time."

"Civil rights inroads have to be taken a step at a time and this is a particularly sensitive one that can create a backlash and has," Lesniak said.

Same-sex couples who register as domestic partners gain some of the tax benefits of marriage and a right to visit each other in the hospital. If one is a state employee, the other gains health and pension benefits.

But there are hundreds of other rights and obligations that go with being married, such as the right to sue for a spouse's death or the law's protection for the secrets spouses tell each other.

The Nicholson-McFaddens are holding out for full-fledged marriage.

"A domestic partnership law will never work the way marriage will," Karen said, "because with marriage comes ..."

"Everything," Marcye said, finishing her partner's sentence. "We get this question a lot: Isn't domestic partnership enough? And I turn it right back and say: Would domestic partnership be enough for you?"

Robert Schwaneberg covers legal issues. He can be reached at rschwaneberg@starledger.com or (609) 989-0324.