NOW-NJ President Suzannah Porter is quoted in this article.

Supreme Court hears gay marriage arguments

Aberdeen couple one of seven involved in landmark legal battle

BY TOM CAIAZZA and CHRIS GAETANO, Staff Writers, newstranscript.gmnews.com, February 22, 2006

TRENTON — For most couples, the pre-requisites for marriage are being of legal age, a witness and a blood test.  For Marcye and Karen Nicholson-McFadden, it could take four years and one more day in court.
 

Above, Karen (l) and Marcye Nicholson-McFadden are one of seven same-sex couples who had their plea for marriage rights heard by the New Jersey Supreme Court on Feb. 15. At right, demonstrators hold a sign opposing gay marriage outside the Supreme Court hearings last week.

The Aberdeen couple have been in a committed relationship for 16 years, yet the state has not granted them or the rest of New Jersey’s same-sex couples the right to do just that.

All that may soon change.

Marcye and Karen, parents of two young children for whom they legally combined their last names to create a better sense of family, comprise one of seven same-sex couples who on Feb. 15 had their day in court — the state Supreme Court.  The highest court in New Jersey heard Lewis v. Harris, and are expected to return a decision on what could be a landmark ruling in civil rights.  At stake is whether New Jersey will become the second state in the country to recognize same-sex marriages as more than domestic partnerships or civil unions.
 

	PHOTOBYCHRISGAETANO

David Buckel, an attorney with Lambda Legal, a New York-based pro bono firm representing the plaintiffs, argued in front of the court that they are not looking for a redefinition of marriage law, simply a right to co-exist within that law.

“The court would graft in the marriage law a gender-neutrality,” Buckel said.

Doing so, Buckel argued, would change the law only for those barred from marriage and would not affect hetero marriages.

Up until this point, Buckel argued, same-sex couples have been subjected to second-class citizenship.  The Domestic Partnership act, he said, created a protected class of people, with rights not afforded to same-sex couples as they would to their hetero counterparts.

“Exclusion is a bar and not a burden,” Buckel said.

He argued that the Domestic Partnership Act shows that the state Legislature is more or less appeasing discrimination in the law and not working to legitimately change the law.

Justice Barry T. Albin expressed concern that what is recognized in New Jersey will not necessarily be recognized in other states, causing what he called a “hostility” in those states.

Buckel said that it is not the place of this court to use other states as a basis for interpreting this state’s constitution.

“You can’t tell someone dying of thirst not to take a drink of water when the water is the constitution because it will dribble on the chin that is other states,” Buckel said.

Assistant Attorney General Patrick DeAlmeida, arguing for the state, said that this is a case not for the judiciary, but the Legislature.  He argued that it would not be removing a barrier but changing the definition of marriage if the court ruled for the plaintiffs and that is the responsibility of the popularly elected Legislature, not the four-member majority of the Supreme Court.

DeAlmeida argued that same-sex marriages will have a negative affect on heterosexual marriages, saying that changing the law would make a drastic change to the definition of marriage.

Associate Justice Jaynee LaVecchia asked what harm would be done to heterosexual couples if same sex couples are able to marry.  She said that the U.S. Supreme Court has ruled on issues of discrimination before, citing that “separate but equal was untenable.”

“If there is no harm to hetero marriage,” Associate Justice LaVecchia said, “then what is the state resting this on?”

DeAlmeida responded by saying heterosexual couples will not want to marry if homosexual couples can.

Couple optimistic on ruling

In a press conference immediately following the hearing, DeAlmeida reiterated the argument that this is an issue for the Legislature, not the courts.

“It may be that a change is coming,” DeAlmeida said.  “The will of the people should be expressed through the elected representatives, not four justices.”

DeAlmeida said that the Domestic Partnership Act showed that elected branches of government are ready to respond to this situation and that it should be left up to them.

Marcye Nicholson-McFadden does not think leaving this up to popular opinion is a fair way to resolve discrimination.

“It’s really a case of civil rights,” Marcye Nicholson-McFadden said.  “The people being discriminated against don’t always have popularity.”

That does not mean that the people are not behind her.

Marcye Nicholson-McFadden said that she has appreciated the public support they have received and that it is the system that needs fixing.

“We have found nearly to a person that we find support,” she said.  “The place we find the discrimination is in the institution.  Most of the people get it.”

Steven Goldstein of the Garden State Equality group said at the press conference that polling shows 56 percent of New Jersey favors marriage equality.

He said that current domestic partnership law does not go far enough.

“Domestic partnership law took us from third-class citizens to second-class citizens,” Goldstein said.  “That’s not good enough.”

Nicholson-McFadden said that she is asked why they must call it “marriage” when “civil unions” can offer the same protection under the law.

“Why not call it civil unions?” she said.  “As a straight person, would you accept that?”

She said that this discrimination is just wrong, and that is the motivation — both selfish and otherwise — for bringing this to the Supreme Court.

“We love you, love your family,” she said of how the current law treats same-sex couples.  “But it’s just not good enough for marriage.”

The Supreme Court could take months to reach a decision, which Marcye Nicholson-McFadden is very hopeful will come in their favor.

“It just felt very positive,” she said about the hearing.  “They really understood what we were looking for — just equal rights.”

Goldstein had the same reaction.

He said that they have just come to the Super Bowl of courts and that they “feel like the Pittsburgh Steelers with five minutes to go.”

Demonstrators out in force

Outside the courthouse, protesters stood in the cold on opposite ends of the building, with one side supporting same-sex unions and the other opposing them.  The crowds returned chants and slogans, and held their signs up high.

“We’re here because of the 1,400 rights and responsibilities that same-sex couples should have,” said Suzannah Porter, president of the National Organization for Women’s New Jersey chapter.

To Porter, who has had a same-sex partner for three years, it is wrong to deny same-sex couples the same legal rights and privileges that heterosexual couples have.  For example, same-sex couples do not count as next of kin to each other, which can lead to strange legal troubles, especially if one partner dies.

“She’s my partner, she’s walked through so many crises with me, but my next of kin would be the father that left me when I was 5,” Porter said.

The protesters on the other side of the divide had a much different opinion of the issue.  To them, the state recognizing gay marriage represents a risk to institutions of the family and would contribute to what they perceive as already prevalent problems in contemporary society.

“We’re here to promote marriage between a man and a woman, the historical position of our country as well as that of civilization since the beginning of time, and any violation of that policy, of a man and a woman, seems to [contribute to] the decay in society,” said the Rev. David Rittinger, of Whiting.  “Rome, for example, became very promiscuous with same-sex unions, and where are they?”

Many who opposed same-sex unions at that protest based their beliefs in deep religious convictions.

“The importance of marriage, not only in America but around the world, is the stability of our society, and so it’s an institution that we don’t want to tamper with,” said the Rev. George Benbow, of Plainfield.  “We want it to remain as it was originally designed by God from the beginning.  One man and one woman, coming together in holy matrimony, that’s what marriage represents.”

Some who support same-sex unions, however, also used theological justifications for their beliefs.

“We believe in God’s incredible hospitality and all-consuming love, and that God wants us all to love one another as God loves us.  So why would God not want people to love one another and to legally recognize their marriage and have the same rights as everyone else?” asked Debra Duke, of Cranbury, who is the pastor for the United Church of Christ’s Maple Congregation.

Others had not so much religious reasons for supporting same-sex unions but patriotic ones.

“I’m here because I’m gay, and the right to marry one day is very important to me.  I think marriage is a basic civil right and my civil rights are important to me,” said Jay Lassiter, of Cherry Hill.  “I’m over here protesting what the guys in Iraq are fighting for:  equality, democracy and freedom to marry who I choose, and these are all very important issues for me.”