Litigation Over, Gay Marriage Is Headed Back to Legislative Track

, New Jersey Law Journal

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Legislation to codify same-sex marriage into statute is expected to proceed apace now that Gov. Chris Christie has withdrawn his challenge to a court ruling declaring it must be legalized.

The Legislature may choose to override Christie’s veto of a bill last year or may introduce a new measure.

Legal analysts say a statutory codification is needed to iron out ambiguities about the legalization of gay marriages, which took effect on Monday, Oct. 21 at 12:01 a.m., or about the right of clergy to refuse to perform them.

Last year, Christie vetoed S-1, which permits same-sex marriages and includes a religious exception. The Legislature has until January 2014 to override the veto.

Two prime sponsors of S-1, Raymond Lesniak, D-Union, and Loretta Weinberg, D-Bergen, say they are conferring with the plaintiffs’ lawyers to  work out a codification of the ruling.

Lesniak says he favors introducing a new bill to “enable Republicans who support [same-sex] marriage to vote for it without the stigma of overriding the governor’s veto.”

Christie’s decision to withdraw his appeal effectively makes New Jersey the 14th state, and the most densely populated, to allow same-sex marriage.

His Oct. 21 announcement came three days after the state Supreme Court refused to stay Mercer County Superior Court Judge Mary Jacobson’s ruling last month that partners in N.J. civil unions are being denied federal benefits in violation of the state constitution.

The court had set down arguments for January on the appeal on the merits,  but the court’s rationale for denying the stay made it clear that Christie’s challenge stood no chance.

“Chief Justice [Stuart] Rabner left no ambiguity about the unanimous court’s view on the ultimate decision in this matter when he wrote, ‘same-sex couples who cannot marry are not treated equally under the law today,’” Christie said in announcing his action.

“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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