Gay marriage still gives lawmakers cold feet

Tom Moran, Star-Ledger (nj.com) from the Web, Feb 17, 2006

Say the words "gay marriage" and watch the lefty politicians scramble for a place to hide.

Many of them secretly support the idea.  But they won't risk saying that in public.

So instead of vindicating the rights of a group they supposedly support, they are burrowing into their little holes, hoping this will all blow over.

Maybe, they hope, the state Supreme Court will save them and establish the right to gay marriage by judicial fiat.

"Most legislators are rooting for that, even if they wouldn't vote for it," says Sen. Loretta Weinberg (D-Bergen).  "If the court says it's legal, we don't have to do anything.  There are a lot of people in the Legislature hoping that's the way it turns out."

They might well get their wish.  The court heard arguments this week in a suit filed by seven gay and lesbian couples who assert that the state Constitution, properly understood, gives them equal marriage rights.

It's risky to guess how the court will rule.  But the justices gave Patrick DeAlmeida, the state's attorney, a pretty good thrashing during arguments on Wednesday.

When he argued that marriage is traditionally between a man and woman, Chief Justice Deborah Poritz noted that tradition used to ban interracial marriage and it branded women as property within a marriage.

"What separates this particular change and makes it unacceptable?" she asked.

Justice Barry Albin pressed him to show how gay marriage would harm traditional heterosexual marriages.  DeAlmeida conceded he couldn't.

Other justices asked why the state should ban gay marriage, while at the same time allowing gay couples to adopt children.  They asked how the state could deny this right, given that state law specifically bans discrimination against gays.

By the end of the hearing, you almost felt sorry for the state's lawyer.

If the court approves gay marriage, watch for Republicans to go nuts.  They will argue, as they always do, that the court is a gang of zealous activists.

That misses a good chunk of the story, though.  Because when this court gets aggressive, it's usually because the Legislature hasn't done its job.

Take school funding.  The court has forced the state to spend billions of dollars on urban schools.  But that's because poor kids had no access to decent schools.

On affordable housing, the court created as many problems as it solved with its Mount Laurel rulings.  But again, it stepped in because the Legislature had allowed towns to use zoning laws to deliberately keep poor people outside their borders.

"Sometimes the Legislature finds it more convenient for the court to act," says former Justice Stuart Pollock.

If this were Texas, you could hardly blame a politician for ducking the issue of gay marriage.  Why die for a hopeless cause?

But in New Jersey, the public is ahead of the politicians.  Two reputable polls have shown majority support for gay marriage.  And even if the polls are wrong, they are probably close.

Weinberg expected a crush of criticism when she sponsored the domestic partnership law, which extends some benefits to gay couples.  But it never materialized.

"I got absolutely no flak," she says.  "I heard much more negative comments about our smoking bill."

The plot to duck this issue may not work in the end.  The court might side with the state and dump the issue back in the Legislature's lap.

That would be a heartbreaking setback for the seven couples who filed this suit, along with their children and thousands of others.

But it would at least force the state to have a discussion about this, as grown-up democracies are supposed to do.

And for a bonus, it would roust the politicians from their hiding places.  They would have to do their jobs, in the light of day.

And that would be a nice change of pace.

Tom Moran's column appears Wednesdays and Fridays. He may be reached at tmoran@starledger.com or (973) 392-1823.