[1]TRENTON, N.J. (BP)–A New Jersey judge has thrown out a lawsuit seeking legalization of same-sex “marriage” in the state, marking the second straight legal defeat on the issue for homosexual activists.
In her opinion Feb. 5, Judge Linda Feinberg rejected arguments by lawyers for seven homosexual couples that the state’s laws against same-sex “marriage” violate the New Jersey constitution, which was written in 1947. She did, however, say she was sympathetic to the arguments and urged the state legislature to consider expanding rights of homosexual couples.
In October, an Arizona appeals court also denied a request to legalize same-sex “marriage.”
“The right to marry has always been understood in law and tradition to apply only to couples of different genders,” Feinberg wrote. “A change in that basic understanding would not lift a restriction on the right, but would work a fundamental transformation of marriage into an arrangement that could never have been within the intent of the Framers of the 1947 Constitution.
“Significantly, such a change would contradict the established and universally accepted legal precept that marriage is the union of people of different genders.”
Feinberg said any change should occur in the state legislature, not the courts.
[2]“Judicial intervention is warranted only where the Legislature has placed an unreasonable restriction on access to the legislatively defined right,” she wrote. “That is not the case here.”
But Feinberg noted that she was “sympathetic” to the “interests of the plaintiffs” and urged the New Jersey legislature to look at what other states — such as California, Hawaii and Vermont — have done to grant rights to homosexual couples. Vermont is the only state to award “civil union” licenses.
“Although this court has rejected the constitutional arguments advanced by the plaintiffs, the court commends the Legislature to carefully examine and consider the expanded rights afforded to same-sex couples in other jurisdictions,” she wrote.
Lambda Legal, which is representing the seven couples, said it will appeal. The case is one of two that some social conservatives fear will result eventually in the legalization of same-sex “marriage.” The other case is in Massachusetts, where a ruling by that state’s highest court is pending.
While Feinberg was sympathetic to the plaintiffs’ interests, she also was adamant in saying the state had an interest in banning same-sex “marriage.”
“Plaintiffs seek not to lift a barrier to marriage, but to change its very essence,” she wrote.
She argued that the state’s marriage laws are neutral and not discriminatory, and pointed out that the plaintiffs can marry anyone in the state — provided that the person is of the opposite sex.
“Plaintiffs, like anyone else in the state, may receive a marriage license, provided that they meet the statutory criteria for marriage, including an intended spouse of the opposite gender,” she wrote. “Plaintiffs are, in that sense, in the same position as all other New Jersey residents.”
Feinberg rejected the comparison of same-sex “marriage” bans to interracial marriage bans, which were struck down in 1967.
The case now goes on to the state appeals court. It could wind up before the New Jersey Supreme Court, which is considered one of the more liberal ones in the country.
Several family friendly organizations have participated in the case, including the Center for Marriage Law, the New Jersey Family Policy Council and lawyers funded by the Alliance Defense Fund.
The case is Lewis v. Harris.
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