NJ high court gives marriage rights

to gay couples

Home News Tribune Online 10/25/06

TRENTON:  Gay couples should enjoy the same rights as heterosexual couples under the state constitution, the state Supreme Court ruled today, making New Jersey the one of the few states in America to extend the rights of a married couple to same-sex partners.

The court said same sex partners could not be denied equal rights, but the union did not have to be called "marriage."  It left it up to the legislature to design a law granting same-sex partners the same rights under the law as heterosexual couples.

"Only rights that are deeply rooted in the traditions, history, and conscience of the people are deemed to be fundamental.  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,'' said the ruling, written by Associate Justice Barry Albin.

"With this state's legislative and judicial commitment to eradicating sexual orientation discrimination as our backdrop, we now hold that denying rights and benefits to committed same-sex couples that are statutorily given to their heterosexual counterparts violates the equal protection guarantee of Article I, Paragraph 1.

"To comply with this constitutional mandate, the Legislature must either amend the marriage statutes to include same-sex couples or create a parallel statutory structure, which will provide for, on equal terms, the rights and benefits enjoyed and burdens and obligations borne by married couples.

"We will not presume that a separate statutory scheme, which uses a title other than marriage, contravenes equal protection principles, so long as the rights and benefits of civil marriage are made equally available to same-sex
couples.  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.''

Social conservatives have vowed to press lawmakers to amend the New Jersey Constitution to bar such marriages, as 19 states have done and eight more may do next month.  Gov. Jon S. Corzine has said he would not support such an amendment.

Seven gay and lesbian couples sued in 2002, arguing they should be allowed to marry under the state constitution. State law bars discrimination based on
sexual orientation.  One of the 14 plaintiffs, Marilyn Maneely of Haddonfield, died last year.

A state Superior Court judge ruled against gay marriage in 2003, and a divided appeals court affirmed that decision last year.  Divided rulings can be automatically appealed to the state Supreme Court, which heard arguments in the case in February.

The ruling is issued on the last day on the job for Chief Justice Deborah Poritz, who Thursday reaches the state judiciary's mandatory retirement age of 70.  Associate Justice James Zazzali will be the new chief justice.

New Jersey has allowed domestic partnerships, granting registered couples certain rights, since 2004. In that time 4,354 gay couples have registered, including 544 this year, as well as 101 elderly, male-female couples over age 62 also covered by the law.

That law was enacted during the tenure of Gov. James E. McGreeey, who opposed gay marriage … until after announcing he is gay and resigning from office. McGreevey now supports allowing gay couples to marry.

Asbury Park issued one marriage license to a gay couple in 2004 and received additional applications, before state Attorney General Peter Harvey intervened and invalidated the union.

Massachusetts is the only state that allows gay couples to marry, though couples from states that don't recognize such unions aren't eligible.

Nearly all states have adopted laws or constitutional amendments barring gay marriage.  The only states without one or both are Connecticut, Massachusetts, New Jersey, New Mexico, New York and Rhode Island, according to the National Conference of State Legislatures.

Forty-one states bar gay marriage, including 19 states that do so in their state constitution.  Eight states … Arizona, Colorado, Idaho, South Carolina, South Dakota, Tennessee, Virginia and Wisconsin … have gay-marriage bans on the Nov. 7 ballot.

Congress barred federal recognition of same-sex marriages 10 years ago.

California, Connecticut, Hawaii, Maine, Vermont and the District of Columbia offer gay couples spousal rights, to one degree or another, through options such as civil unions and domestic partnerships.

On the Web:

www.judiciary.state.nj.us/opinions/supreme/a-68-05.pdf