SAME-SEX MARRIAGE IN NEW JERSEY

Background material.
Launching the Lewis v. Harris lawsuit

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Background:

New Jersey is a fairly liberal state:

According to Lambda Legal, a gay civil rights advocacy group:

"The words 'husband,' 'wife,' 'spouse,' or some form of the word 'marry' appear in more than 850 separate provisions of New Jersey law. Beyond legal rights and responsibilities, marriage is an enormous part of day-to-day life and is the most common way that couples prove their enduring commitment to each other." ₂

However, according to a 2006-OCT statement by the Family Research Council, a Fundamentalist Christian advocacy group, New Jersey does not have a law that clearly and specifically states that marriage in the state is restricted to only one man and one woman. ₃

2001: Background case: an application for a name change:

Jill Bacharach applied to the courts to change her last name to Bacharach-Bordman, thus assuming "the name of her life-partner as part of her own." The trial judge refused permission, ruling that such a change in name would appear to sanction homosexual marriage. Concerned Women for America filed a brief opposing the plaintiff's petition. However, the appeals court reversed the judge's decision on 2001-AUG-2. They ruled that people are free to change their names "so long as the adopted name is not used for a criminal or fraudulent purpose." ₄

2002: Launching the Lewis et. al. v. Harris et. al. lawsuit:

Marcye and Karen Nicholson-McFadden, four other lesbian couples, and two gay couples from seven different New Jersey counties applied for marriage licenses in seven different state offices over the interval from 2002-JUN-14 to 18. The couples have all been in long-term committed, loving relationships for 1 to 3 decades. As expected, they were all refused licenses. They then sued the Commissioner of the state Department of Human Services, the Commissioner of the Department of Health and Senior Services, and the Acting State Registrar of Vital Statistics . These are the three governmental entities involved in the issuing of marriage licenses and the registering of marriages. The Lambda Legal Foundation submitted the suit in Superior Court in Hudson County on 2002-JUN-26 as Docket #L-00-4233-02. ₅ They asked the state to expand  the legal definition of marriage to include same-sex couples. They listed two claims, arguing on the basis of privacy and equal protection guarantees in the state constitution:

The complaint listed some of the "harms that Plaintiffs suffer from the State's exclusion of them from marriage." Included were:

"the denial of protections relating to the incapacitation or death of a spouse, denial of support for family finances, denial of other public and private safety nets, and denial of the responsibilities imposed on married partners to each other and to third parties."

The goal of the court case was to allow loving, committed same-sex couples to be be married within the state, in the same way that opposite-sex couples have always been permitted. The couples would benefit "from a broad array of statutory protections, benefits and mutual responsibilities."

The terms "husband," "wife," "spouse" "marriage," "marry," and similar terms appear in 850 provisions in New Jersey's statutes. The state would then have a marital system in place like the Netherlands, Belgium, Canada, Spain and the state of Massachusetts.

The term "gay marriage" is often referred to in the media. We prefer the term "same-sex marriage: or SSM because some same-sex couples are composed of two bisexuals or one bisexual and one homosexual.

If SSM were declared legal, there is a significant chance that courts would decide that other states would then have to recognize their marriages. Couples might come to New Jersey, get married, return to their home states and launch court cases to force the latter state to recognize their marriages.

The couples were assisted by the National Organization for Women and the American Civil Liberties Union. ₆ Their supporters

"in New Jersey have connected with hundreds of pastors and rabbis around the state, collecting 145 signatures from Episcopal, Lutheran, Methodist, Presbyterian, and Jewish clergy on a resolution of support. Several of those same clergy agreed to raise the issue from their pulpits, although there is division on the issue among Protestant sects and branches of Judaism. The New Jersey chapter of the National Organization for Women is helping out as well. The group's president, Elizabeth Volz, sent a letter to Governor McGreevey this summer [2002], asking him to stand by the court ruling, whatever it may be. In the next few months, NOW plans to hammer home the point in its newsletter, encouraging members to join the 'public conversation' and familiarize their neighbors and co-workers with the issue....Catholic and Mormon church leaders, as well as traditional-family groups, led rallies and prayer vigils outside the statehouse, circulated petitions declaring the sanctity of traditional marriage, and ran full-page newspaper ads slamming legislators who indicated support for civil unions. 'Marriage is a sacrament,' Vermont's Catholic bishop, Kenneth Angell, said at the time. 'It is a holy state of life. It is something that we have to defend.' " ₅

The term "traditional marriage" is used by social and religious conservatives to refer to the exclusion of same-sex couples from the institution of marriage.

Since the case is based solely on state law, the New Jersey Supreme Court has the final word. The case stops there and cannot be appealed to the U.S. Supreme Court. ₁ This similar to a lawsuit in Vermont that resulted in the creation of a parallel system of civil unions which are identical to marriage in terms of licensing, registration, divorce, and state marital benefits and obligations.

Lambda amended their complaint on 2002-OCT-10. ₇

Reactions by conservative Christians:

Many gays, lesbians, bisexuals and some others view the present marriage act in New Jersey as giving special rights to heterosexuals and discriminating against same-sex couples. They feel that marrying the person that you love is a fundamental human right.

However, some conservative Christian individuals and groups view SSM differently -- that:

According to the Fundamentalist Christian group, Focus on the Family:

"Our laws defining marriage as a union of male and female were not invented to be mean to gays. They were invented to be a blessing to children, because children need a mom and a dad. This is not just about New Jersey or Massachusetts or Alaska or Hawaii. They are trying to get footholds at the state level from which to launch a national attack on marriage." ₆

"... just keep coming at us. They're just going to keep gambling in the courts until they get what they're looking for. Rather than just rights for individuals, they are seeking societal change. They're looking to overthrow the way things have been." ₆

The case continues

For detailed information:

References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

1. "New Jersey," Lambda Legal, at: http://www.lambdalegal.org/
2. "Lower-Court Loss in Lawsuit Seeking Marriage for Same-Sex Couples in New Jersey 'Propels Us Forward' To Higher Courts Where Case Will Be Decided, Lambda Legal Says," Lambda Legal, 2003-NOV-05, at: http://www.lambdalegal.org/
3. Tony Perkins, "Court Makes Legislature Their Henchmen," Washington Update, Family Research Council, 2006-OCT-25.
4. Thomas L. Jipping, "Homosexual assault on marriage," The Society for the Unenlightened, at: http://www.thethoughtpolice.org/na/
5. Ruth Padawer, "Battle for gay marriage," Gay PASG, 2002-OCT-21, at: http://www.gaypasg.org/
6. Stuart Shepard, "N.J. lawsuit advances homosexual marriage idea," Focus on the Family, at: http://www.family.org/
7. The text of the amended complaint of 2002-OCT-8 is online at: http://www.lambdalegal.org/

Copyright © 2002 to 2006 by Ontario Consultants on Religious Tolerance
Originally written: 2002-JUL-2
Latest update: 2006-OCT-29
Author: B.A. Robinson