N.J. justices back gay rights

But court says legislators must legalize unions

October 26, 2006|By Ellen Barry | Ellen Barry,LOS ANGELES TIMES

NEWARK, N.J. -- New Jersey's highest court ruled yesterday that same-sex couples deserve the same rights as married people but stopped short of calling their partnerships marriage, saying that decision should fall to the state Legislature.

"Raised here is the perplexing question - `What's in a name?'" Justice Barry T. Albin wrote for the majority. "We will not presume that a difference in name alone is of constitutional magnitude."

The 4-3 ruling comes as a partial victory for gay rights advocates, who had hoped New Jersey would legalize gay marriage outright, as Massachusetts' Supreme Judicial Court did in 2003. Instead, the decision gives New Jersey lawmakers six months to create the necessary statutes for same-sex partnerships, which may be called marriage or, as in Vermont, civil unions.

Monte Stewart of the Marriage Law Foundation, which opposes gay marriage, said: "The courts increasingly are understanding that man-woman marriage is a vital social institution, and because meanings matter, they're not going to radically alter those meanings."

In a sharply worded opinion that dissented with a portion of the majority decision, Chief Justice Deborah Poritz said the court should not sidestep the question of the word marriage.

"Labels set people apart as surely as physical separation on a bus or in school facilities. Labels are used to perpetuate prejudice about differences that, in this case, are embedded in the law," she wrote. "Ultimately, the message is that what same-sex couples have is not as important or as significant as `real' marriage."

In 2003, when Massachusetts' Supreme Judicial Court ruled that gay couples had the constitutional right to marry, many foresaw a legal domino effect, but since then, high courts in several states have rejected the notion.

The most recent rulings came in July, when high courts in Washington and New York upheld state laws limiting marriage to one man and one woman. In both cases, the majority opinion held that the legislature should settle the matter rather than the courts. Majorities in each case found that there was a rational basis, based on procreation, to limiting marriage to heterosexuals.

Meanwhile, voters in 20 states sought to pre-empt pro-gay-marriage rulings by explicitly banning the practice in their state constitutions. In November, seven more states will vote on statewide bans and seven more are considering such a move.

Still, gay rights advocates have achieved victories. In California and Maryland, judges have ruled that same-sex marriage was protected by the state constitution. In September 2005, California's Legislature passed a bill legalizing same-sex marriage, but Gov. Arnold Schwarzenegger vetoed the measure, saying a higher court should decide it.

Court challenges are pending in California, Connecticut, Iowa, Maryland, Nebraska and Oklahoma.

Many observers on both sides of the issue have seen New Jersey as the state most likely to follow Massachusetts' lead.

The case, Lewis v. Harris, began in 2002, when seven same-sex couples applied for marriage licenses and were denied. The couples then sued the officials who denied them, arguing that the New Jersey Constitution guaranteed their rights.

In November 2003 - a few days before the landmark Massachusetts decision - a Superior Court judge refused to strike down the ban, reasoning that although the right to marry is fundamental, the right to marry someone of the same sex is not "deeply rooted in our nation's history." In June 2005, an appellate panel ruled 2-1 that only the Legislature could enact a law allowing gays to marry.

Despite those setbacks, advocates have been optimistic about a ruling by the state Supreme Court, which has made several noteworthy rulings in favor of gay rights. The New Jersey Supreme Court has ruled that the Boy Scouts could not bar gay troop leaders - a decision that was overturned by the U.S. Supreme Court. Moreover, the state has not advanced arguments against gay marriage that are based on procreation or child-rearing.

Ellen Barry writes for the Los Angeles Times.

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