TRENTON, N.J. (BP)–A New Jersey appeals court panel refused June 14 to strike down the state’s laws banning “gay marriage,” setting up a much-anticipated appeal to the state Supreme Court — one of the most liberal high courts in the nation.
The 2-1 ruling gave pro-family groups a victory in the case, although it could be short-lived if the New Jersey Supreme Court eventually legalizes “gay marriage.” The homosexual activist group Lambda Legal immediately announced it was appealing to the state high court.
The New Jersey Supreme Court has sided with homosexual activists before. In 1999 it ruled that the Boy Scouts could not prevent homosexuals from becoming troop leaders — a decision that eventually was overturned by the U.S. Supreme Court.
“Plaintiffs’ claim of a constitutional right to State recognition of marriage between members of the same sex has no foundation in the text of the [New Jersey] Constitution, this Nation’s history and traditions or contemporary standards of liberty and justice,” appeals court Judge Stephen Skillman wrote for the majority.
Lambda Legal sued the state on behalf of seven same-sex couples, arguing that the state’s marriage laws violated the New Jersey constitution’s guarantees of right to privacy and equal protection. But Skillman and Judge Anthony J. Parrillo disagreed.
Pro-family groups applauded Skillman’s opinion, which cited procreation as a logical reason behind the state’s marriage laws. Skillman also asserted that arguments for “gay marriage” could be used to argue for the legalization of polygamy.
It is the second time Lambda Legal has lost in the state. It also lost on the trial court level.
“The good thing is that we have a very strong trial court opinion and a very strong court of appeals opinion,” Dale Schowengerdt, an attorney with the pro-family legal group Alliance Defense Fund, told Baptist Press. ADF filed a friend-of-the-court brief on behalf of the Family Research Council. “The Supreme Court would have to go out of its way to overturn these. Hopefully, these opinions provide a basis that the court can easily affirm.”
Although Massachusetts is the only state to recognize “gay marriage,” other states soon could follow. Washington state’s Supreme Court is considering a “gay marriage” case and could hand down its decision any day. In all, eight states are involved in such lawsuits — which conservatives say point to the need for a marriage amendment to the U.S. Constitution.
Conservatives surely wish all rulings were similar to the one issued by the New Jersey court, which said its role in the debate over “gay marriage” was limited.
“The personal views of the members of the court concerning ‘the wisdom or policy of a statute’ should play no part in determining its constitutionality,” Skillman wrote. “A constitution is not simply an empty receptacle into which judges may pour their own conceptions of evolving social mores.”
Parrillo went even further in a concurring opinion, writing that “gay marriage” legalization “must come from democratic persuasion, not judicial fiat.”
Lawyers for the plaintiffs had described marriage as a “compelling and definitive expression of love and commitment that can occur between two adults.”
The majority opinion, though, said marriage entails much more.
“[O]ur society and laws view marriage as something more than just State recognition of a committed relationship between two adults,” Skillman wrote. “Our leading religions view marriage as a union of men and women recognized by God, and our society considers marriage between a man and a woman to play a vital role in propagating the species and in providing the ideal environment for raising children.”
The majority’s embrace of the procreation argument was significant. The New Jersey attorney general had chosen to ignore the issue of procreation in his legal briefs — much to the frustration of pro-family groups. The court was forced to rely on friend-of-the-court briefs from conservative groups.
Skillman said polygamy could follow if “gay marriage” were legalized.
“The same form of constitutional attack that plaintiffs mount against statutes limiting the institution of marriage to members of the opposite sex also could be made against statutes prohibiting polygamy,” he wrote. “… Indeed, there is arguably a stronger foundation for challenging statutes prohibiting polygamy than statutes limiting marriage to members of the opposite sex ‘because, unlike gay marriage, [polygamy] has been and still is condoned by many religions and societies.'”
In his concurring opinion, Parrillo also addressed the polygamy issue, writing, “[T]he binary idea of marriage arose precisely because there are two sexes. Plaintiffs simply have not posited an alternative theory of marriage that would include members of the same sex, but still limit the arrangement to couples, or that would otherwise justify the distinction.”
Judge Donald Collester dissented, arguing the right to marry “includes the freedom to marry a person of one’s choice.”
“To deprive plaintiffs of marrying the person of their choice, a right enjoyed by all others, on the basis of a tradition of exclusion serves only to unjustifiably and unconstitutionally discriminate against them.”
In a statement, Lambda Legal’s David Buckel said that the dissenting judge’s opinion “often later becomes the law of the land.”
“We’ve always known that this case is headed for the New Jersey Supreme Court, and now we’re that much closer to the final word,” Buckel said.
The Alliance Defense Fund’s Schowengerdt praised the court’s decision.
“The court was quick to note that its role was not to create law based on what the members of the court thought the law should be,” Schowengerdt said. “It acknowledged that its role was to decide cases based on what the law is.”
The case is Lewis v. Harris.
For more information about the national debate over “gay marriage,” visit http://www.bpnews.net/samesexmarriage