New Jersey ruling could be blockbuster

Posted on 19 Jan 2006 at 7:57pm
By Ann Rostow Contributing Writer

Gay rights advocates hope for favorable ruling from justices

Conventional wisdom says the New Jersey Supreme Court will decide whether or not to legalize same-sex marriage on or before Wednesday. That is the eve of Chief Justice Deborah T. Poritz’s 70th birthday, and by law, it is her last day on the court. Many observers believe that Poritz will make sure that what might be a landmark decision will be released before she leaves the bench.

But conventional wisdom has been wrong before.

No one expected the Washington Supreme Court to wait nearly a year-and-a-half before issuing its marriage decision. Optimistic couples who were preparing to wed last fall twiddled their ring fingers until July, when the justices disappointed the gay community with a fractured ruling against same-sex families.

In the late 1990s, the Hawaii Supreme Court sat on its same-sex marriage ruling for two years, allowing the voters to amend the state constitution before finally announcing that the whole question was moot. And even Massachusetts was expected to rule on its marriage case months before the opinion finally came down in November 2003.

With that caveat out of the way, civil rights advocates, and everyone else, will be on the edge of their seats over the next few days in anticipation of what could be considered a make-or-break ruling in the legal fight for marriage.

Four months ago, the community was looking at two, maybe three marriage breakthroughs in the courts. New York was a long shot. Washington was a toss up, leaning our way. And New Jersey was an odds-on favorite to follow the lead of Massachusetts.

The defeat at the hands of New York’s highest court last summer was depressing, but the community was already steeled for the outcome. The most shocking aspect of the 4-2 decision was the skimpy, thinly-reasoned, majority opinion that abandoned classic legal analysis in favor of a slapdash discourse on the advantages of heterosexual marriage.

But the 5-4 loss in the Washington court a few days later was a true body blow to the legal champions of marriage equality. No one had come right out and predicted a gay rights victory, but most people did in fact expect the justices to uphold the two lower courts that had struck the state’s marriage law as unconstitutional.

The double whammy, along with the feeling that the national referenda on same-sex marriage in state elections has influenced the judiciary, has left the community on edge.

Could New Jersey rule against the same-sex plaintiffs? Given the performance of its sister courts, the answer has to be yes.

But will it? Advocates remain hopeful that the answer to that question is no.
New Jersey has a strong public policy in favor of gay rights. New Jersey’s high court has a history of tough civil rights opinions. And New Jersey’s citizens break slightly in favor of marriage equality.

One thing is sure. If the Trenton court rules against same-sex couples, the community will start reassessing its legal strategy.

Cases will proceed in California, Maryland, Connecticut and Iowa. But years will be added to the timeline for winning equality in the courts and caution will be the watchword in planning future litigation.

If however, the justices rule in favor of marriage equality, the next phase of the fight to wed will begin in earnest.

Unlike Massachusetts, New Jersey does not have a residency requirement, so a door that opens in the Garden State will be open to all Americans. Surely hundreds of couples will make a beeline to the state, and just as surely the far right will fire up the engines on its next backlash machine.

The mainstream press appears oblivious to this impending development, so expect the ink to flow and the strings to pull out of the chatty Cathys on the cable news channels as reporters and analysts suddenly come to grips with a decision that has been in the works since February.

This article appeared in the Dallas Voice print edition, October 20, 2006.

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