Supreme Court rules state must give same-sex couples same rights as heterosexual married couples, but leaves Legislature the option of instituting civil unions

Justice Barry T. Albin, left, authored the majority ruling that gives the Legislature six months to amend the marriage statutes or establish a civil union system for gay couples. Chief Justice Deborah Poritz, right, wrote the minority opinion saying same-sex couples should be given access to traditional marriage and nothing less.

The New Jersey Supreme Court advanced the ball towards marriage equality on Wednesday, but the majority of justices fell far short of the end zone.

Writing for four members of the court, Justice Barry T. Albin ruled that the state constitution requires that the state's same-sex couples receive all the rights and benefits now enjoyed by married couples. As for the word "marriage," Albin and company found no constitutional right to the term itself, thus holding back the intangible and arguably most profound attributes of the very institution that same-sex couples sought to join.

The majority left the matter in the hands of state lawmakers, who were given six months to come up with a statutory scheme to level the playing field. As long as the end result provides equal treatment, the court said, "we will not presume that a difference in name alone is of constitutional magnitude."

Led by retiring Chief Justice Deborah Poritz, the three other justices agreed that the benefits of marriage should be extended to gay men and women, but they argued vehemently with the notion that marriage and marriage rights could be torn asunder and considered as two separate issues.

"What we name things matters," Poritz wrote. "Language matters."

"By excluding same-sex couples from civil marriage," she continued, "the state declares that it is legitimate to differentiate between their commitments and the commitments of heterosexual couples. Ultimately, the message is that what same-sex couples have is not as important as "'real' marriage, that such lesser relationships cannot have the name of marriage."

By and large, the GLBT community and allies reacted with muted enthusiasm to the decision. Bruised and battered by the two high court marriage defeats in New York and Washington last summer, sighs of relief wafted through the press statements that followed the announcement.

Lambda Legal Defense, which filed the lawsuit against the state in June 2002, characterized the decision a "big step forward for our community."

"The bottom line here," said David Buckel, Lambda's Marriage Project director, "is that the entire court said that there must be a remedy for the inequality that bars same-sex couples from marriage. The question for the Legislature is an easy one; whether to follow through on the support of the majority of voters in this state to allow their gay friends and neighbors to marry, including over 20,000 committed same-sex couples raising more than 12,000 children."

Over at the American Civil Liberties Union's Lesbian Gay Bisexual Transgender Project, the director, Matt Coles, called the opinion "a giant step towards ending the unfairness that same-sex couples face in marriage. We now call on the New Jersey Legislature to make sure that same-sex couples are not denied the dignity that only comes through marriage."

And here in the Lone Star State, the executive director of Equality Texas, Paul E. Scott echoed his national colleagues.

"This is a definite step forward in recognizing that same-sex couples and their children are entitled to equal rights and responsibilities under the law," Scott said. "We are hopeful that as the New Jersey Legislature moves to implement the court's ruling it will determine that the right way to end discrimination in marriage is, indeed, to end discrimination in marriage, not create a separate system."

A step forward, perhaps, but the decision is certainly not the one that marriage advocates were hoping for. Assuming that the New Jersey Legislature takes the court up on its compromise, the Garden State can be expected to enact a civil union statute similar or identical to the ones in place in Vermont, Connecticut and effectively in California. Colorado voters will also weigh in next month on a similar "separate but equal" status for same-sex couples when they advance or defeat a comprehensive domestic partner referendum.

But it is marriage itself that same-sex couples are seeking in suits like this one, and the others still in play in California, Connecticut, Maryland and Iowa. And activists in New Jersey vowed Wednesday to keep fighting until they get just that.

"So help us God, New Jersey's LGBT community and our millions of straight allies will settle for nothing less than 100 percent marriage equality," declared Steven Goldstein, chair of the gay rights organization Garden State Equality.

Goldstein said that "half-steps short of marriage like New Jersey's domestic partnership law and also civil union laws don't work in the real world. Hospitals and other employers have told domestic-partnered couples across New Jersey: We don't care what the domestic partnership law says. You're not married. That's why it wouldn't matter if the legislature added all the rights in the world to the current law without calling it marriage."

He added, "Marriage is the only currency of commitment the real world universally understands and accepts."

Goldstein said that Assemblyman Wilfredo Carabello, the Assembly's speaker pro tem, would be joined by Assemblymen Brian Stack and Reed Gusciora in introducing marriage equality legislation.

"Over our dead bodies will we settle for less than 100 percent marriage equality. The people of New Jersey wouldn't want us to," Goldstein said, pointing to the 2006 Zogby-Garden State Equality Poll that found that New Jersey residents favor marriage equality by a 56-to39 percent margin.

For many, marriage is not just a word. It is a powerful social institution and it remains powerful even when stripped of concrete benefits.

Arguably, a same-sex couple from Texas would travel to New Jersey to "get married," even in the knowledge that Texas law will not recognize such a wedding and will not offer the smallest legal protections to the couple on their return. Indeed, hundreds of U.S. same-sex couples have taken a trip to Canada for the deeply important symbol of contracting a formal marriage.

With Massachusetts blocking the door to almost all non-resident weddings, many couples were looking forward to the chance to tie the knot in the Garden State. While Wednesday's decision may provide a large measure of security to New Jersey's gay and lesbian families, it leaves the rest of the country no better off.

Despite the court's half measures, there remains a beacon of hope for same-sex couples looking to be married.

Goldstein's group announced plans to not only offer a marriage equality bill as soon as possible in the state legislature, but to also form a marriage task force, with the cooperation of 150 other statewide groups.

A bus tour, called "Equality Express" will start rolling weekends around the state to educate New Jersey citizens. Garden Equality also plans "a whirlwind" of more than 50 public events this fall as well as "dozens of more actions" in the months to come.




This article appeared in the Dallas Voice print edition, October 27, 2006.