Editor's note:  Middlesex County NOW-NJ activist Skip Drumm can be seen holding up an "Equal Marriage" round just above the "T" in TCNJ.

Same-sex, same rights

But N.J. gays still can't wed

By JONATHAN TAMARI, GANNETT, Home News Tribune Online 10/26/06

TRENTON — Committed gay and lesbian couples deserve the same rights as married couples, the state Supreme Court unanimously ruled yesterday, but by a 4-3 majority the court stopped short of ordering the New Jersey Legislature to allow same-sex marriage.
 

	The Associated Press People rally in front of the Richard J. Hughes Justice Complex yesterday in Trenton as they wait for the New Jersey Supreme Court to release its highly anticipated decision.

Instead, the majority said marriage is not a "fundamental right" and ruled that lawmakers should decide how to ensure equal protection: By allowing gay marriage, or by creating a separate system that provides all of the same rights, but with a different name.

"Although we cannot find that a fundamental right to same-sex marriage exists in this state, the unequal dispensation of rights and benefits to committed same-sex partners can no longer be tolerated under our state constitution," Associate Justice Barry T. Albin wrote for the majority.

He later added, "The name to be given to the statutory scheme that provides full rights and benefits to same sex couples, whether marriage or some other term, is a matter left to the democratic process."

Associate Justices Jaynee LaVecchia, John Wallace Jr. and Roberto Rivera-Soto joined in Albin's opinion.

Outgoing Chief Justice Deborah Portiz, incoming Chief Justice James Zazzali and Associate Justice Virginia Long dissented, arguing that to achieve equality, the state must allow gay marriage.

The majority ruling moves the controversial gay marriage question back to the Legislature.  The court gave lawmakers 180 days to act.  Three Democratic lawmakers immediately announced a proposal to legalize gay marriage, but others said marriage should only be allowed for one man and one woman.

The court's decision is similar to one issued in Vermont in 1999 that eventually led to that state's legislature approving civil unions that offered gay couples all of the same rights as married heterosexual couples.  Connecticut recently approved a similar law.  The decision leaves Massachusetts as the only state in the nation to allow gay marriage.

The New Jersey ruling drew mixed reactions from both sides of the issue.

The seven gay and lesbian couples who sued for the right to wed were encouraged by the promise of equal rights but said they would settle for nothing less than marriage.

"People know if you call something different it's not the same.  If it's not the same, it's not equal," said Cindy Meneghin, of Butler.

The dissenting justices agreed.

"Labels set people apart as surely as physical separation on a bus or in school facilities.  Labels are used to perpetuate prejudice about differences that, in this case, are embedded in the law," Poritz wrote.

Social conservatives argued that the justices went too far in ordering their changes and urged lawmakers to leave marriage to heterosexual couples only.

"The Supreme Court is invoking the Legislature to go further than it already has.  We believe that the rights granted under civil unions are enough for homosexual couples," said Len Deo, president of the New Jersey Family Policy Council.

New Jersey already has a domestic partnership law that provides gay and lesbian couples some, but not all, of the benefits of marriage.  Several plaintiffs complained Wednesday that they have been stymied while dealing with doctors and insurance companies despite their domestic partnerships.

The ruling sets the stage for a political push by gay-rights groups, who vowed to pressure lawmakers to expressly allow gay marriage.

Gov. Jon S. Corzine and the Democratic leaders of the Senate and Assembly all said they would ensure equal rights, but none would say whether that would come through marriage, civil unions or another method.

Corzine has said he would oppose an amendment to bar gay marriage but has also said marriage should be limited to man and woman.

"The court ruled that same sex couples are entitled to equal rights, and I look forward to the legislative process implementing the court's decision," Corzine said Wednesday.

Senate President Richard J. Codey, D-Essex, and Assembly Speaker Joseph J. Roberts Jr., D-Camden, also said they would not post for a vote any amendment seeking to override the court ruling.

Steven Goldstein, chairman of the gay-rights organization Garden State Equality, pledged a political campaign to fight for marriage rights.  Invoking images of the African-American civil rights movement, Goldstein likened the ruling to telling gay couples they can move from the back of a bus to the middle, but not the front.

The seven couples who have been the face of the lawsuit that began in 2002 said they would have to continue a fight that they thought would be resolved.

"I totally thought tomorrow we'd go out and get married," said Marcye Nicholson-McFadden, of Aberdeen.

Meneghin, who said she first proposed to her partner Maureen Kilian in an empty church 32 years ago, likened the wait for yesterday's decision to "false labor."

The couples expressed optimism, however, that the Legislature would legalize gay marriage.

"You learn patience.  It's worth it and you never give up the fight," Meneghin said.

Since July 2004, when New Jersey's domestic partnership law took effect, 4,354 same-sex couples have registered as domestic partners, along with 101 elderly opposite-sex couples, according to state statistics.  The ruling said there are more than 16,000 same-sex couples in committed relationships across the state.

Same-sex couples won the right to marry in Massachusetts through a court case that culminated in 2003.  Since then the top state courts in New York and Washington have ruled against groups seeking same-sex marriage rights.  Other cases are pending in California, Connecticut, Iowa and Maryland.

Voters in 19 states have approved constitutional amendments barring gay marriage, and 41 states have laws limiting marriage to one man and one woman.  Proposals to limit marriage are up for a vote in eight other states next month.

California, Maine, Hawaii and the District of Columbia have domestic partnership laws that provide gay couples some marriage rights, but fall short of civil unions.

The ruling came down on Poritz's last day on the high court.  Poritz reaches the state's mandatory retirement age today.  The decision was also handed down two days after Zazzali was confirmed as the new chief justice.  Conservative groups had called on the Legislature to wait for the gay marriage decision before voting on Zazzali's nomination.

Jonathan Tamari: jtamari@gannett.com