Legislation in Progress To Codify N.J. Right to Same Sex Marriage

, New Jersey Law Journal

   |0 Comments

Sen. Raymond Lesniak

A bill that would etch into statute the right of same-sex couples to marry in New Jersey is on a fast track in the state Senate.

The bill, S-3109, scheduled for a Senate Judiciary Committee vote on Monday, is designed to protect against possible reversal or undermining of the ruling that legalized same-sex marriage in the state.

The ruling “is just a Superior Court decision, and it’s based on facts,” says Sen. Raymond Lesniak, D-Union, a co-sponsor of the bill. “Facts can change. Supreme courts can change.”

He says embodying the right in statute will guard against the ruling’s reversal if the state Supreme Court’s makeup shifts or the U.S. government extends equal benefits to civil-union couples, which would undermine the decision’s equal-protection rationale.

Same-sex marriages began in the state on Oct. 21, after Gov. Chris Christie withdrew his appeal in Garden State Equality v. Dow, and more than 700 ceremonies have occurred since then.

Lawrence Lustberg, one of the lawyers who helped win the case, sees an even more fundamental need for the bill: New Jersey’s marriage law has been found unconstitutional because it does not recognize same-sex marriage, and “at some point, it is the responsibility of the Legislature to pass a constitutional statute to govern marriage.”

Lesniak echoes that concern, saying, “right now, marriage equality is not the law of the land in the state of New Jersey,” civil unions are.

The new bill, The Marriage Equality Act, is almost identical to one vetoed by Christie in February 2012.

The most significant difference is that while both bills specify that, under the First Amendment, religious groups and clergy can refuse to perform same-sex marriages or to provide space, services or anything else that would violate their beliefs, S-3109 provides that the right to refuse does not extend to a public accommodation.

For example, Lesniak says that a Knights of Columbus group that rents out space for wedding receptions could not say no to a same-sex marriage at the location.

Lustberg says the provision embodies the outcome of another case he handled: a lesbian couple’s challenge to the Ocean Grove Camp Meeting Association’s refusal to allow them to exchange civil-union vows at its oceanfront pavilion.

The case ended in 2012, when an administrative law judge found that the First Amendment did not shield the decision by the Camp Meeting Association, a Methodist group, to deny use of the pavilion to Harriet Bernstein and Luisa Paster.

The association rented the space to the public and never declined a request, other than for scheduling conflicts. The pavilion was thus a public accommodation, and the New Jersey Law Against Discrimination applied.

Lustberg, of the Gibbons firm in Newark, represented Bernstein and Paster on behalf of the American Civil Liberties Union of New Jersey.

Lesniak says the public accommodation provision makes S-3109 a more protective bill than S-1, the one Christie vetoed, and might garner added support for being more than an attempt to just override the veto.

In refusing to sign S-1, Christie stated that New Jersey’s constitution contains no right to same-sex marriage and would have to be amended, adding that the importance of the issue called for a popular vote.

He also claimed that New Jersey’s civil-union law was effective because the state received far fewer discrimination complaints about civil unions than about race, age or gender, and he thought a civil-union ombudsman would suffice.

The Garden State Equality case was decided on Sept. 27 of this year.

Mercer County Superior Court Judge Mary Jacobson ruled that starting on Oct. 21, New Jersey must permit same-sex marriages because partners in civil unions were being denied federal benefits in violation of the state Constitution.

Jacobson’s ruling was based on Lewis v. Harris, where the New Jersey Supreme Court held in 2006 that same-sex couples must be treated the same as heterosexual ones, but gave the Legislature the option of doing so through civil unions or marriage.

The Civil Union Act was passed a few months later and took effect in 2007.

A commission created to make sure civil unions received equal treatment concluded they did not.

The case for same-sex marriage got another major boost on June 26, when the U.S. Supreme Court struck down as unconstitutional the federal Defense of Marriage Act, which allowed states to refuse to recognize same-sex marriages from other states.

The federal government then began extending various types of benefits to same-sex couples who were married but not those in civil unions, bolstering the argument that marriage was needed to provide the equality required by Lewis.

The New Jersey Supreme Court agreed to a direct review of Jacobson’s holding, but on Oct. 18 refused to stay it, finding the appeal was unlikely to succeed and no irreparable harm would be caused by allowing same-sex marriages in the interim.

Christie then dropped the appeal, and New Jersey became the 14th state with same-sex marriage, but it was unclear whether attempts to legislate it would be abandoned.

Sen. Loretta Weinberg, D-Bergen, the other sponsor of S-3109, says the choices were to do nothing and hope no court reverses Jacobson, push for an override or “elicit support from the other side and perhaps the governor by doing a clean bill that doesn’t poke the governor’s office in the eye.”

She notes that S-3109 provides that if a couple in a civil union chooses to marry, it would be retroactive to Oct. 21.

Lesniak and Weinberg are both members of the Senate Judiciary Committee, which has announced that it will not take oral testimony on Monday because S-3109 is so similar to S-1, but written comments can be submitted in advance.

Prospects are dicier in the Assembly, where there is no bill. Assembly Majority spokesman Tom Hester says, “New Jersey now has a very strong marriage equality right that is quite possibly the nation’s strongest. The Assembly is of course willing to listen to all ideas, but considering the strength of the existing right, no action is currently scheduled.”

Christie’s office did not respond to a request for comment on the bill, but The Star-Ledger reported on Wednesday that his spokesman, Michael Drewniak, said, “We will treat it as we do with all bills in the normal course.”

According to the Department of Health, local registrars, who issue marriage licenses, reported 679 same-sex weddings as of Dec. 6.

That figure includes 461 couples who were already in civil unions or domestic partnerships. An additional 30 licenses went to couples already wed elsewhere.

Since same-sex marriage started in New Jersey, two more states have legalized it, Hawaii and Illinois, both through legislation.

What's being said

Comments are not moderated. To report offensive comments, click here.

Preparing comment abuse report for Article# 1202632161692

Thank you!

This article's comments will be reviewed.