Thu July 11, 2013
New Jersey Takes Up Same-Sex Marriage Fight
Originally published on Thu July 11, 2013 5:44 pm
New Jersey is the center of the next battle for gay marriage. The state is one of seven that offers same-sex couples civil unions or domestic partnerships.
Buoyed by the U.S. Supreme Court ruling striking down key provisions of the Defense of Marriage act, advocates will argue that the current law denies couples equal protection under the law.
Meanwhile, Democrats in the Garden State legislature are pushing for an override of Governor Christie’s veto of gay marriage legislation last year.
- Sally Goldfarb, professor at Rutgers School of Law.
JEREMY HOBSON, HOST:
It's HERE AND NOW. The recent U.S. Supreme Court decisions on same-sex marriage are giving new ammunition to gay rights advocates across the country. On Monday, the American Civil Liberties Union sued to overturn Pennsylvania's ban on gay marriage on behalf of 23 plaintiffs. And in Illinois yesterday, the courts were asked to move forward on a suit to give gay and lesbian couples the right to marry. John Knight of the ACLU of Illinois is one of the attorneys on the case.
JOHN KNIGHT: The need for marriage is that much more pressing because the only way that lesbian and gay couples in Illinois can gain access to all the federal protections is through marriage. The law has been with us and it gets only stronger as we have developments like the Windsor decision, the DOMA decision from two weeks ago, so we feel very confident.
HOBSON: That's John Knight in Illinois. Well, New Jersey is where many in the gay rights battle are looking next. It has a case pending now in the courts. Sally Goldfarb is following it closely. She's a professor at the Rutgers School of Law. And Professor Goldfarb, welcome.
SALLY GOLDFARB: Thank you.
HOBSON: Well, let's start first on the legal front. What is happening now following the Supreme Court decision in New Jersey in the courts?
GOLDFARB: The U.S. Supreme Court decision really gave an important boost to the lawsuit that's currently pending in New Jersey seeking the finding that same-sex couples are entitled to marry. The lawyers who are representing the six couples and the organization, Garden State Equality, who are seeking marriage equality in the state of New Jersey, have gone back to court and have asked the court to find that in the aftermath of the U.S. Supreme Court decision in the Windsor case, it is now clear that New Jersey must allow same-sex couples to get married.
HOBSON: And are they using the same arguments that were used in that Windsor case before the Supreme Court?
GOLDFARB: Yes, they're using the basic argument that not allowing a same-sex couple to marry is essentially consigning that couple to a lesser, more stigmatized status. Now, the issue in the U.S. Supreme Court was whether the federal government would recognize same-sex marriages at all. Here in New Jersey, the issue is a little different. New Jersey allows same-sex couples currently to enter into civil unions. But the people bringing this lawsuit are arguing that that is not equivalent to marriage, and it fails to accord equal dignity and respect to same-sex couples.
HOBSON: And what are the chances of success in this case especially following the Supreme Court decision?
GOLDFARB: The Supreme Court decision, I think, greatly increased the chances of success for the plaintiffs in the current New Jersey lawsuit because this case in New Jersey is building on an earlier 2006 New Jersey Supreme Court decision, which found that the New Jersey state constitution requires that same-sex couples be able to get the same rights and benefits as married couples who are of two different sexes.
The argument up until last month was about whether civil unions are or are not equal to marriage. Now that the U.S. Supreme Court has told us that same-sex married couples will automatically be recognized as married under federal law, it's clear that civil union is a second-class status.
HOBSON: Now, there is also a big legislative fight going on in New Jersey. Even both houses of the legislature voted to legalize same-sex marriage in the state, and then that was vetoed by Governor Christie. Tell us about what's happening on the legislative front?
GOLDFARB: Well, you're absolutely right that the legislature last year passed a legislation that would have permitted same-sex marriage in New Jersey, but Governor Chris Christie vetoed it. The legislature can override that veto anytime between now and mid January. The question is whether they have enough votes. Of course, Governor Chris Christie is a Republican, and there is a question about whether Republicans will be willing to step out of their party's discipline, and in fact vote to override the governor's veto.
The reality is that the majority of New Jersey residents support same-sex marriage, and probably many of the legislators who voted against it probably personally support it as well. The question is whether they'll be willing to go on the line and vote in favor of same-sex marriage when that entails going against the governor.
HOBSON: What about a referendum? Is there any chance that there will be a referendum on the ballot to ask voters what they think in whether gay marriage should be legal in New Jersey?
GOLDFARB: Governor Chris Christie did call for putting this issue to a referendum when he vetoed the state legislature's same-sex marriage legislation. Historically, referenda have resulted in an outcome that was not going to permit same-sex marriage, but that has been changing in recent years as public opinion is shifting. So you might say that a referendum would be a win-win because it would put the issue to the voters and it would lead to, most likely, an outcome in favor of marriage equality.
But there are a few problems with referenda. One problem is that we elect legislators to legislate and we expect judges to judge, and we don't want to put every issue out to the voters because that essentially cause government to grind to a halt, and particularly when you're talking about the rights of minorities.
It is not appropriate necessarily to put that to a referendum because there's always the risk that voters will vote based on prejudice. That's why we have other legal guarantees in place, particularly constitutional guarantees to safeguard the rights of the minority.
HOBSON: And those were many of the arguments that were brought up after Proposition 8 passed in California. Now, New Jersey was one of the first states to implement domestic partnerships back in 2003. It is now one of the last states in the Northeast, which has not legalized same-sex marriage. Why do you think that is?
GOLDFARB: It's ironic that New Jersey, which historically was in the forefront of granting legal rights to lesbian, gay, bisexual and transgender individuals, now finds itself lagging behind. Other than Pennsylvania, it's the last state in the Northeast that still does not allow same-sex marriage. I think that this is partly product of the political dynamics in the state. We would've had same-sex marriage by statute back in 2012 if not for the fact that Governor Christie vetoed it.
I think that the current public opinion in New Jersey, clearly, according to the polls, is strongly in favor of same-sex marriage. And most knowledgeable people say that within a year or two, same-sex marriage will be a reality in New Jersey, whether by legislation or, perhaps, more likely, by a court decision.
HOBSON: As we look around the country and we see places like Illinois and Hawaii as sort of next frontiers in the fight for marriage equality. Is New Jersey going to be a leader, or is what's happening in New Jersey kind of unique to New Jersey?
GOLDFARB: New Jersey, at this point, is an interesting position because it's one of the few states that does not offer same-sex marriage, but does not forbid it either. That means it's a state that's particularly ripe at this point for legal action to extend the right of marriage to same-sex couples. Most states in the country, by far, actively prohibit same-sex marriage. And that's going to be interesting as a challenge for advocates for marriage equality because in those states, they're actually taking on a legal prohibition against same-sex marriage.
GOLDFARB: In New Jersey, we already have civil unions, and it's just a question of taking the next step.
HOBSON: Well, Professor Sally Goldfarb, a professor at the Rutgers School of Law in Camden, New Jersey. Thank you so much for joining us.
GOLDFARB: Thank you.
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