Litigation Over, Gay Marriage Is Headed Back to Legislative Track

, New Jersey Law Journal

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“Although the Governor strongly disagrees with the Court substituting its judgment for the constitutional process of the elected branches or a vote of the people, the Court has now spoken clearly as to their view of the New Jersey Constitution and, therefore, same-sex marriage is the law,” he said.

“The Governor will do his constitutional duty and ensure his Administration enforces the law as dictated by the New Jersey Supreme Court,” he added.

Robert Williams, a professor of New Jersey constitutional law at Rutgers Law School-Camden, says the legal status of gay marriage is in “an odd situation.”

The governor’s decision, coupled with his earlier veto, means “we don’t have any authoritative ruling on the merits or statutes on the merits” of same-sex marriage, he says.

Christie’s decision “might be a strategy to retreat and be able to fight another day” with a Supreme Court that includes more of his appointees, he speculates.

But same-sex-marriage opponents would have a hard time establishing standing before the court, he adds.

Lawrence Lustberg of Gibbons in Newark, who represents the plaintiffs along with Hayley Gorenberg of Lambda Legal in New York, sees “no realistic chance” Jacobson’s ruling will  be overturned, adding that the Supreme Court’s decision denying the stay “set forth the law of the land.”

Lustberg notes that the constitution’s Free Exercise Clause exempts clergy from the obligation to perform same-sex marriages.

A few hours after Christie announced his decision, Rutgers-Eagleton Poll results were released showing that 61 percent of New Jersey voters support same-sex marriage. That includes 49 percent of Republicans.

Fifty-three percent of respondents said the state should accept Jacobson’s decision, while 40 percent wanted it appealed to the state Supreme Court. The poll was taken Oct. 7-13.

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