TRENTON, N.J. (BP)–New Jersey’s Supreme Court heard oral arguments Feb. 15 in a “gay marriage” case that could result in the Garden State following Massachusetts’ lead in redefining marriage.
Four of the court’s seven justices peppered Assistant Attorney General Patrick DeAlmeida with tough questions, asking him why the state believes marriage should be the exclusive domain of heterosexuals.
“The legislature has an interest in protecting the institution of marriage,” DeAlmeida said. “It is a fundamental institution in our society.”
The court gave no indication as to when it would rule. Massachusetts legalized “gay marriage” in 2004, six months after its highest court struck down the state’s marriage laws. Washington state’s highest court is expected to issue a “gay marriage” decision by mid-March. In total, nine states are defending their marriage laws against suits by homosexual activists.
Liberal groups hope to tally several more wins on the state level before taking their case to the U.S. Supreme Court, which they hope legalizes “gay marriage” nationwide. For that reason, conservative groups are pushing for a federal marriage amendment.
The homosexual group Lambda Legal filed the lawsuit in 2002, but lost on both the trial level and appeals court level.
The New Jersey Supreme Court is considered one of the more liberal high courts in the U.S. 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.
During oral arguments Feb. 15, New Jersey Supreme Court Chief Justice Deborah Poritz asserted that marriage has “changed with time in rapid dramatic ways.”
“What separates out this particular change and makes it unacceptable, especially in light of what the legislature has said about not discriminating on the basis of sexual orientation?” she asked before referring to previous bans on interracial marriage that were struck down in the U.S. Supreme Court’s Loving v. Virginia decision.
“That’s an entirely different scenario, because in that case there was a federal constitutional amendment — the 14th Amendment — which prohibited discrimination based on race,” DeAlmeida said. “The plaintiffs in that case had a constitutional foundation on which to make their claim. The plaintiffs here don’t. There is no state constitutional right for same-sex couples to marry, or a provision in the state constitution prohibiting discrimination based on sexual orientation.”
Several of the justices took exception to DeAlmeida’s reliance upon tradition. Tradition, Justice Virginia Long said, was a fact, and not a legal argument.
“What we need is the legal argument that stems out of that fact …,” she said.
“The legal argument is that there is nothing in the [New Jersey] Constitution that empowers this court to make that change,” DeAlmeida said. “… [T]here is nothing in the Constitution that says four members of this court can make that radical change without the other branches being involved.”
To the consternation of conservative groups, the New Jersey attorney general’s office chose not to argue that heterosexual marriage is unique because of its ties to procreation and childrearing. Procreation and childrearing have been central legal arguments used by conservatives nationwide as to why marriage should be only a heterosexual institution. At one point Justice James R. Zazzali asked: “If you take away procreation and you take away optimal childrearing, what’s left?”
“What’s left is the protection of the marriage institution,” DeAlmeida said.
Justice Jaynee LaVecchia noted the magnitude of the case.
“This is not just changing pronouns in a statute,” she told Lambda Legal Attorney David Buckel. “It’s changing the historical understanding of what marriage has been in the laws of New Jersey.”
“This court,” Buckel replied, “has confronted such historical exclusions of similar magnitude.”
Demetrios Stratis, an attorney allied with the conservative Alliance Defense Fund, called it a “concern” that the state chose to ignore procreation and childrearing arguments.
“That’s why we tried to intervene, because we knew [tradition] would be the thrust of their argument,” he told Baptist Press.
DeAlmeida was the only attorney to defend the current marriage law.
Rena M. Lindevaldsen, an attorney with the conservative legal group Liberty Counsel, said attorney general offices in other states also have failed to make the connection to procreation and childrearing.
“They will not make the most central argument that needs to be made about why same-sex couples are different than opposite-sex couples when it comes to marriage,” she told BP. “[Traditional marriage and ‘gay marriage’ are] different because of the procreative ability of opposite-sex couples versus same-sex couples. The state gets involved in marriage because it wants to promote a particular relationship in which kids should be raised.”
Stratis did not want to make a prediction on how the court would rule.
“After doing this for 15 years I’ve realized it’s very, very difficult to decide which way they’re leaning just based on questions,” he said. “They could be asking questions just based on thoroughness. You never know.”
Lindevaldsen was less optimistic.
“At a minimum, we’re not going to get as good of a decision out of them, and I think there’s a real concern that they’re going to rule the marriage laws unconstitutional,” she said.
Although conservatives have called for a state constitutional marriage amendment in New Jersey, the legislature thus far has failed to act. Constitutional amendments must be initiated with the legislature and cannot begin via citizen petitions.
New Jersey already has a law that provides some of the legal benefits of marriage to homosexual couples.
“They want the word marriage,” Stratis said. “That’s what they want. Anything short of that is not acceptable.”
The case is Lewis v. Harris.