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N.J. court refuses to legalize ‘gay marriage,’
orders legislature to give couples benefits

TRENTON, N.J. (BP)–In a decision that will please neither side fully, the New Jersey Supreme Court Oct. 25 refused to legalize “gay marriage” but ordered the legislature to amend state law to give homosexual couples the legal benefits of marriage.

Such a law, the court said, could include either civil unions — which are legal in Connecticut and Vermont — or “gay marriage.” The court gave the legislature six months to change the law.

Nevertheless, it was a major defeat for homosexual activists, who were optimistic the court would do what Massachusetts’ court did and order “gay marriage” legalized. Now, they must lobby the legislature, which is controlled by Democrats.

The New Jersey court split 4-3, with the three justices in the minority arguing that “gay marriage” should be legalized with no option for civil unions. In her final opinion before retirement, Chief Justice Deborah T. Poritz wrote the dissenting opinion, which was signed by two other justices.

Justice Barry T. Albin wrote for the court’s majority.

“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,” Albin wrote. “… [W]e 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 [of the New Jersey Constitution].”

The legislature, Albin wrote, 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” of marriage.

New Jersey already had a domestic partner law that gave homosexual couples some of the legal benefits of marriage. The new law, though, must grant them all the benefits. The ruling likely is a boost to supporters of constitutional marriage amendments, particularly those that ban both “gay marriage” and civil unions. Eight states are scheduled to vote on marriage amendments Election Day.

It is the third state supreme court this year to refuse to legalize “gay marriage,” joining New York and Washington state. Washington’s decision also was by a one-vote margin. Conservatives note that all three courts are considered liberal.

“I think the other side just took a big hit in New Jersey,” Glen Lavy, an attorney with the conservative legal group Alliance Defense Fund, told Baptist Press. “The court ruled that there is no fundamental right to same-sex marriage…. The battle is far from over … but the fact that they could not win in New Jersey is a huge, huge loss for them.”

The ruling is similar to one handed down in 1998 by Vermont’s Supreme Court, which gave the state legislature the option of legalizing “gay marriage” or a parallel structure like marriage.

Homosexual activists already are pledging to pressure the New Jersey legislature into passing a law legalizing “gay marriage.” Such legislation would have to be signed by New Jersey Gov. Jon Corzine, a Democrat who recently said he believes marriage is between a man and a woman.

“Those who would view today’s Supreme Court ruling as a victory for same-sex couples are dead wrong,” Steven Goldstein, chair of the homosexual group Garden State Equality, said in a statement. “So help us God, New Jersey’s LGBTI [lesbian, gay, bisexual, transgender, inquiring] community and our millions of straight allies will settle for nothing less than 100 percent marriage equality. Let decision makers from Morristown to Moorestown, from Maplewood to Maple Shade, recognize that fundamental fact right now…. Thousands of us will now hit the streets, the phones and the hallways to get this legislation passed.”

Goldstein said a “gay marriage” bill would be introduced by Assembly Speaker Pro Tem Wilfredo Caraballo and Assemblymen Brian Stack and Reed Gusciora. All three are Democrats.

Lavy acknowledged that the ruling is a “mixed bag.”

“We’re certainly happy that the court did not redefine marriage,” he said. “We’re disappointed that the court concluded, really without analysis, that same-sex couples are similarly situated with married couples.”

The New Jersey court is one of the most liberal in the country and may be best known among conservatives for its ruling that the Boy Scouts could not prevent homosexuals from becoming troop leaders. That decision was reversed by the U.S. Supreme Court.

Poritz wrote the Boy Scouts decision, and homosexual activists were hoping she would put together a majority of justices to legalize “gay marriage.” Instead, Poritz was left criticizing the majority’s ruling, which she said denies same-sex couples “access to one of our most cherished institutions simply because they are homosexual.”

“I would extend the court’s mandate to require that same-sex couples have access to the ‘status’ of marriage and all that the status of marriage entails,” she wrote.

The ruling was handed down just 13 days before voters in eight states consider passing their own marriage amendments, which are designed to prevent courts from overturning marriage laws.

“The ruling is a wakeup call for people who believe that marriage doesn’t need constitutional protection,” Lavy said. “The ruling highlights the need for marriage amendments like those in Arizona, Virginia and Wisconsin that preclude courts from granting same-sex couples marriage in everything but name only.”

The proposed amendment in those three states bans “gay marriage” and also bans Vermont-style civil unions.

The New Jersey court heard oral arguments in the case, Lewis v. Harris, in February. The lawsuit was filed in 2002 by Lambda Legal on behalf of seven homosexual couples.
For more information about the national debate over “gay marriage,” visit http://www.bpnews.net/samesexmarriage

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  • Michael Foust