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

2010: Petitions, and intervention in
the re-opened Lewis v. Harris case

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Earlier information about the case

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

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Court petitions, amicus curiae, & intervention:

In 2006, the state Supreme Court ordered the Legislature to provide same-sex couples with the same rights and privileges as opposite-sex married couples receive. They chose to create a system of civil unions. However, experience has shown that civil unions are not equivalent to marriages.

On 2010-JAN-08, one day after the New Jersey Senate defeated a bill to legalize SSM, Garden State Equality partnered with Lambda Legal Defense and Education Fund to reopen an earlier case before the state Supreme Court.

  • Steven Goldstein, chairman of Garden State Equality said: "We're not even taking a day's rest. Our members have gotten off the mat and are out there continuing the fight seamlessly for marriage equality."

  • Leslie Gabel-Brett, director of education and public affairs for Lambda Legal, said: "Our goal is to file something when it's ready and well-prepared, and we think that will be in a matter of weeks."

  • State Sen. Loretta Weinberg (D., Bergen), one of the sponsors of the Senate bill, said: "We have now built a record that both sides, supporters and former opponents of civil unions ... [have said] that civil unions do not work. We have a record from the Judiciary Committee meeting as well as what happened [on the Senate floor debate] to build on. ..."

  • Ben Dworkin, director of the Rebovich Institute for New Jersey Politics at Rider University, said: "If you have many legislators getting up and saying publicly in a floor debate that the civil-unions law doesn't work, I think there's an opportunity to go before the courts and say the Legislature says it doesn't work."

  • Jennifer Pizer, marriage project director for Lambda Legal, said that the Senate vote denying SSM "... gives a clear green light for us to return to court and ask the court to enforce the constitution. It was not a proud moment for the New Jersey Legislature, but we will go to court and ask the court to provide the remedy that's overdue." 2

Six same-sex couples will again ask the state Supreme Court for marriage equality in the state. According to Hayley Gorenberg, deputy legal director for Lambda Legal, extensive testimony collected by the Civil Unions Review Commission supports their assertion that civil unions are not the equivalent of marriages. Cindy Meneghin of Butler, NJ, is one of the plaintiffs. She said "What we have lived for the last three years is that civil unions are not equal to marriage." She and her partner, Maureen Kilian -- both 52 -- have lived together since high school. Meneghin was taken to a hospital in the late 1990s with meningitis, but Kilian was not initially allowed to see her. In mid-2009, Meneghin had appendicitis, and again the nurses did not understand Kilian's civil union rights. Meneghin said: "I got the same blank stares. The bottom line is marriage has meaning that civil unions will never have." 3

In the 2006 court ruling, Justice Albin, writing for the majority, said:

"We will give, as we must, deference to any legislative enactment unless it is unmistakably shown to run afoul of the  Constitution. Because this State has no experience with a civil union construct that provides equal rights and benefits to same-sex couples, we will not speculate that identical schemes called by different names would create a distinction that would offend Article I, paragraph 1.  We will not presume that a difference in name alone is of constitutional magnitude. 4 

It is now 2010 and the people of New Jersey have had a few years of experience with civil unions. Marc Poirier posting on Concurring Opinions, wrote about the New Jersey Civil Union Review Commission. Their:

"... final report in December 2008  5 unanimously found civil union unequal and recommended marriage equality. ... This conclusion surprised no one who was watching; to be sure, the Commission was bipartisan and based its findings and conclusions on public hearings, but from the outset it seemed comprised of supporters of full equality.  The March 2010 petition also relies on testimony provided to the state Senate back in December, 2009, when it was hoped that the legislature might in a lame-duck session enact a marriage equality bill.  Outgoing Governor Corzine pledged to sign it; incoming Governor Christie pledged to veto it.  The bill was not moved forward." 4 

Vermont went through a similar experience with their civil union legislation. The Vermont Commission on Family Recognition and Protection also reported that, in practice, civil unions in that state were not equal to marriage. 6

In 2010-MAR, Lambda Legal filed a motion "... reactivating the case for marriage equality on behalf of the plaintiffs in the original Lewis v. Harris lawsuit." 7

On 1010-MAY-10, a "Brief of Prospective Amici Curiae" was filed in support of the plaintiffs-appellants by: Garden State Equality, National Association of Social Workers, New Jersey Chapter, The New Jersey Chapter of the American Academy of Pediatrics and The Pediatric Council on Research and Education, Family Equality Council, Colage, and Parents, Families and Friends of Lesbians and Gays (PFLAG - National).8

On 2010-MAY-10, the plaintiffs attempted to block a NJFPC's motion to intervene in the case. 9

On 2010-JUN-14, the New Jersey State Bar Association filed an Amicus Curiae (friend of the court) brief that requested "...that the Supreme Court grant the plaintiff's request for relief and order the Legislature to provide 'marriage' fully and equality to same-sex couples." 10

On 2010-JUN-01, or JUN-14 (sources differ) the New Jersey Family Policy Council (NJFPC), a non-profit group opposed to marriage equality, filed a motion to intervene in the case. Their mission is to preserve marriage as exclusively for opposite-sex couples "... as a key social institution for the benefit of children and society." Their vision

"... is to build New Jersey into one of the best places in the world to raise a family by exhorting our state to encourage, support, and uphold traditional families. Our efforts will inspire our state to work toward having one of the highest success rates in the nation of families that stay together and go the distance." 11

They have a long way to reach the divorce rate of nearby Massachusetts -- the first state to legalize SSM. Massachusetts' divorce rate is currently the lowest in the nation.

The NJPC had previously attempted to intervene as a party in this case and was denied the right to do so. The NJFPC allegedly did not mention this previous exclusion in their 2010 motion to intervene.

Len Deo, Founder and President of the NJFPC said:

"This is the same lawsuit which the New Jersey Supreme Court commended to the legislature to create an equal structure of benefits which the legislature eventually called ‘civil unions.’ Now they want the NJ Supreme Court to fully redefine marriage to include same-sex couples." 12

Demetrios Stratis who represents the NJFPC stated:

"We seek intervention because we know that the Attorney General’s office, which is defending the Lewis v. Harris case, has a clear conflict of interest and cannot challenge the validity of the report of the Civil Union Review Commission which states that civil unions are not working. Due to the AG’s conflict of interest, the NJFPC has a much broader arc of freedom to respond to the Commission’s very biased and unsubstantiated conclusions. The facts were broadly misrepresented by the commission and our two rebuttal reports show that plain [sic] and clear [sic]. The NJ Supreme Court should consider this in its deliberations because the effectiveness of civil unions is the central issue of the case." 12

Deo is apparently a strict constructionist when it comes to interpreting the U.S. Constitution. He notes that the writers of the Constitution had no concept of same-sex marriage, and that therefore the document cannot refer to SSM today. Others regard the Constitution as a living document whose meaning changes and expands as the culture changes. Examples include the abandonment of slavery, allowing African Americans to vote, allowing women to vote, decriminalizing same-sex sexual behavior by adults in private, permitting inter-racial marriage, etc. None of those changes were conceived of by the authors of the Constitution.

Deo criticizes Garden State Equality [GSE] and suggests that they only represent a small number of activists. He wrote:

"GSE has done nothing to make civil unions succeed. In fact they have done everything to show civil unions aren’t working, but they have no evidence except anecdotal stories to back it up. This isn’t really about rights and privileges; it’s about a word: marriage. They know that they need 'civil unions' to fail to get that word." 12

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2010-JUL-26: New Jersey Supreme Court declines to reopen the 2006 lawsuit:

The New Jersey Supreme Court rejected a motion filed by Lambda Legal to reopen an earlier case Lewis v. Harris. It was their intent to argue that civil unions in New Jersey do not give loving, committed same-sex couples the same rights as married couples receive.

The Court said that, in its opinion, the information collected by the Civil Union Review Commission -- which advocates the discontinuing civil unions and allowing loving, committed same-sex couples to marry -- was inadequate to support their recommendation that the court re-open the earlier case and consider creating marriage equality in the state. They said that it needs to start over at the Superior Court level and wind its way through appeals back up to the state Supreme Court. 13

Austin R. Nimocks is Senior Legal Counsel of the Alliance Defense Fund, a fundamentalist Christian legal advocacy group. He commented on the Lambda Legal motion:

"There’s more to marriage than just any two people in a relationship. We should be strengthening marriage, not tearing it down, and the Supreme Court of New Jersey did the responsible thing by denying activists’ attempt to make marriage something other than one man and one woman. This already-resolved, three-year-old lawsuit was resurrected with the goal of forcing legislators to redefine marriage against their will. Such attacks utterly dispel the myth that civil unions will appease same-sex 'marriage' activists, who seek to use them as a legal springboard to redefine marriage." 14

Conservative Christians often enclose marriage in quotation marks when referring to same-sex marriage in order to indicate their opinion that it represents a counterfeit form of marriage.

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Court activity continues in 2011

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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. "Same-sex marriage: Answering the toughest questions," National Organization of Marriage, at: http://www.nationformarriage.org/
  2. Adrienne Lu, "N.J. gay-marriage issue headed for court," The Philadelphia Inquirer, " 2010-JAN-09, at: http://www.philly.com/
  3. Peggu Aclermann, "Six same-sex couples ask N.J.'s top court for permission to wed," New Jersey Real-Time News, 2010-MAR-18, at: http://www.nj.com/
  4. Marc Piorier, "Lewis v. Harris II -- 'Civil union' versus 'marriage,' one more time," Concurring Opinions, 2010-APR-29, at: http://www.concurringopinions.com/
  5. "The Legal, Social, Medical, and Economic Consequences of New Jersey’s Civil Union Law." New Jersey Civil Union Review Commission, 2008-DEC-10, at http://nj.gov/ This is a PDF file.
  6. "Report of the Vermont Commission on Family Recognition and Protection", Office of Legislative Council, 2008-APR-21, at: http://www.leg.state.vt.us/
  7. "Lewis v. Harris," Lambda Legal, at: http://www.lambdalegal.org/
  8. "Brief of Prospective Amici Curiae" 2010-MAY-10, at: http://data.lambdalegal.org/ This link appears to be offline.
  9. "Brief in opposition to motion to intervene," at: http://data.lambdalegal.org/
  10. "Brief of Amicus Curiae," New Jersey State Bar Association," 2010-JUN-14, at: http://data.lambdalegal.org/ This is a PDF file.
  11. "About JNFPC," New Jersey Family Policy Council, at: http://www.njfpc.org/
  12. Len Deo, "NJFPC Files for Intervention Status with NJ Supreme Court!," NJFPC, undated, at: http://www.njfpc.org/
  13. Matt Friedman, "N.J. lawmaker pushes for passage of gay marriage legislation," New Jersey Online, 2011-JUN-16, at: http://www.nj.com/
  14. "New Jersey Supreme Court rejects demand to redefine marriage", The Voice Magazine, 2010-JUL-26, at: http://www.thevoicemagazine.com/

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

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Copyright © 2009 & 2011 by Ontario Consultants on Religious Tolerance
Parts originally written: 2010-MAR-24
Latest update: 2011-JUL-03
Author: B.A. Robinson

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