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Same-sex marriage (SSM) in New Jersey via the state courts

2013-OCT:
First SSMs being arranged for OCT-21. State
Supreme Court denies Governor's stay request.

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Earlier information about the case

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In this web site:
"SSM" refers to same-sex marriage;
LGBT refers to lesbians, gays, bisexuals, and transsexuals

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Webmaster's comments (Bias alert):

The state's argument contained in their appeal is seriously weakened by at least four factors:

  • SSMs in the Commonwealth of Massachusetts have been solemnized for almost a decade, with no perceivable negative effects in the state.

  • As of the date their appeal was filed, same-sex marriages were available in 13 states and the District of Columbia -- which contain about 30% of the U.S. population. SSMs are currently under very active consideration in at least three more states.

  • All of the other Northeast states have already legalized SSM, except for Pennsylvania.

  • Public opinion in New Jersey strongly favors making SSMs available. Polls over the last decade have shown a steady increase in support for SSM and for marriage equality. A poll shows that almost two in three voters in New Jersey have already changed their "consciousness of a social institution of ancient origin" and now support marriage equality.

  • The New Jersey Supreme Court ruled in 2006 that loving, committed same-sex couples must have access to all of the benefits given to married opposite-sex couples. The state then created civil unions to meet this requirement. The recent U.S. Supreme Court decision about the federal Defense of Marriage Act [DOMA] gave same-sex couples access to 1,138 privileges, protections and benefits, but only if they are married. Marriage equality is thus needed in order to allow same-sex married couples to obtain equal access.

It is very important to those individuals and groups who oppose marriage equality that loving, committed same sex couples be prevented from picking up their marriage licenses on or after OCT-21. However, if SSM is allowed, then the opposite-sex married couples in New Jersey will realize that their own marriages are not at all affected by allowing same-sex couples to marry. At that point, opposition to SSM would probably decrease significantly and support would increase further.

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2013-OCT-18: Senator-elect Cory Booker (D) plans to solemnize multiple same-sex couples' marriages on OCT-21:

This week, in a special election, Cory Booker was elected state Senator by a decisive margin. He replaced Senator Frank Lautenberg (D) who died in June. Senator Booker plans to marry ten or more couples at Newark City Hall, starting at 12:01 AM, on Monday morning, OCT-21.

Assemblyman Reed Gusciora (D) asked for a ruling from acting Attorney General John Hoffman (R) to determine whether same-sex couples can obtain an exemption from the 72 hour waiting period normally required between the purchase of a marriage license and a subsequent marriage. He wrote:

“As you know, the intent of the 72-hour waiting period has been to prevent ‘Britney Spears weekend weddings’ and the like. However, many same-sex couples are currently in longstanding civil unions or domestic partnerships, arguably making the 72-hour waiting period unwarranted.”

The ten couples involved had a really good argument in favor of being married immediately. At the time, a court stay of same-sex marriages was expected at any time. 1,2

Fortunately, many same-sex couples residing in New Jersey have already been married in other states. They will be able to be remarried in New Jersey without a waiting period. 3

We have been unable to find out whether the Attorney General responded to Gusciora's request. If you have any information on this please email us at ocrtfeedback@gmail.com

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Review of the New Jersey Supreme Court 2006 ruling that resulted in civil unions:

Back in 2006-OCT. the New Jersey Supreme Court issued its ruling in the case: Lewis et. al. v. Harris et. al. It found that the state's marriage legislation implied that marriage was limited to one man and one woman, but did not explicitly state that. By tradition, only opposite-sex couples could marry. However, the state Constitution requires that women and men be given equal rights. At the time, the state treated loving, committed same-sex couples as "legal strangers" -- as mere roommates. Their relationships were not considered of any significance. Their children had none of the usual protections as enjoyed by the children of opposite-sex married couples.

The court unanimously ruled in 2006 (7 to 0) that provision in law must be made for same-sex couples to either:

  • Be allowed to marry and obtain all of the state benefits and protections of marriage for themselves and their children, or

  • Be allowed to enter a civil union and be granted the same set of state benefits and protections. More details.

The state legislature chose to create a system of civil unions that theoretically gave same-sex "civil unionized" couples all of the state's rights of marriage except the right to call their relationship a marriage. More details. At the time, the federal Defense of Marriage Act (DOMA) made it impossible for same-sex couples who were either married or had entered into a civil union to tap into any of the 1,138 federal marriage benefits and programs. More details.

This limitation was overturned by the U.S. Supreme Court in the case Windsor v. United States on 2013-JUN-26. They ruled that Section 3 of the DOMA law was unconstitutional. That was the clause that had denied legally married same-sex couples access to federal marriage programs.

However, in New Jersey, same-sex couples were not allowed to marry and thus could not access any of these programs. To maintain the ruling of the New Jersey Supreme Court that opposite-sex and same-sex couples have equal rights, it would be necessary to allow same-sex couples to marry. Judge Mary C. Jacobson of the State Superior Court in Mercer County ruled accordingly on 2013-SEP-27.

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2013-OCT-18: New Jersey Supreme Court issued a definitive ruling: Licenses to be available for same-sex couples on OCT-21:

Judge Mary C. Jacobson of the State Superior Court in Mercer County ruled on 2013-SEP-27:

"Whereas before [the 2013-JUN-26 DOMA Supreme Court ruling] same-sex couples in New Jersey would have been denied federal benefits regardless of what their relationship was called, these couples are now denied benefits solely as a result of the [civil union] label placed upon them by the State. ... The ineligibility of same-sex couples for [1,138] federal benefits is currently harming same-sex couples in New Jersey in a wide range of contexts. Same-sex couples must be allowed to marry in order to obtain equal protection of the law under the New Jersey Constitution." 4,5

Judge Jacobson ruled that same-sex marriage licenses shall be available starting 2013-OCT-21 unless her ruling is appealed and the Appeals Court or the state Supreme Court orders a stay of her ruling. More details.

Governor Chris Christie ordered appeals to both the state appeals court and state Supreme Court to prevent the Superior Court Judge's ruling from being activated on OCT-21, and to terminate -- at least temporarily -- any hope that same-sex couples could obtain marriage licenses in New Jersey, and subsequently marry.

Fox News commented:

"Some towns began taking applications for same-sex marriage licenses on Thursday and continued even after the state government told them not to until there was clarity from the courts.

Other towns refused to grant licenses even after the state Health Department said Friday evening that towns should accept the applications." 6

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This topic continues in the next essay

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References used:

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

  1. CNN Political Unit, "Cory Booker to conduct same-sex marriages in New Jersey," CNN, 2013-OCT-18, at: http://politicalticker.blogs.cnn.com/
  2. Kevin McArdie, "Same-Sex Marriage Questions Remain in New Jersey, New Jersey 101.5, 2013-OCT-17, at: http://nj1015.com/
  3. "New Jersey set for rush of same-sex marriages on Monday," Associated Press, 2013-OCT-19. at: http://www.theguardian.com
  4. Thomas Zambito, "N.J. same-sex marriage debate is background noise for judge with Bayonne roots," Star-Ledger, 2013-OCT-13, at: http://www.nj.com/
  5. "Judge denies state's request for stay of gay marriage ruling," Asbury Park Press, 2013-OCT-10, at: http://www.app.com/
  6. "Christie withdraws same-sex marriage challenge, as NJ recognizes unions," Fox News, 2013-OCT-21, at: http://www.foxnews.com/

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Site navigation: Home > Homosexuality > Same-sex marriage > SSM Menu > New Jersey > here

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Copyright © 2013 by Ontario Consultants on Religious Tolerance
Originally posted: 2013-OCT-09
Latest update: 2013-OCT-22
Author: B.A. Robinson

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