N.J. Ruling Mandates Rights for Gay Unions

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By Michael Powell and Robin Shulman
Washington Post Staff Writers
Thursday, October 26, 2006

NEWARK, Oct. 25 -- The New Jersey Supreme Court left the door ajar for the approval of same-sex marriage Wednesday, ruling that gay couples are entitled to rights no different from those of heterosexual couples.

The court gave state legislators 180 days to craft a bill offering same-sex couples the same rights as opposite-sex couples, though it appeared to leave open a choice between calling the status "marriage" or "civil unions."

"Although we cannot find that a fundamental right to same-sex marriage exists in this state, the unequal dispensation of rights and benefits to committed same-sex partners can no longer be tolerated under our state constitution," the court said in its 4 to 3 ruling.

The New Jersey decision could stoke the fires for social conservatives elsewhere in the nation, who during this election cycle have complained loudly of their unhappiness with the Republican Party. New Jersey, however, tends toward social liberalism -- albeit with strong pockets of social conservatism. As the court's decision stops short of mandating same-sex marriage, few expected it to unhinge a taut race for the U.S. Senate between Sen. Robert Menendez (D) and Republican Thomas H. Kean Jr., according to political observers. Menendez and Kean oppose same-sex marriage, although Kean has gone further and called for a state constitutional amendment to ban it.

"If the Supreme Court had flatly forced the state to recognize gay marriage, it would have had a negative effect and rallied the conservative Republican base in New Jersey and hurt Robert Menendez," said Ross K. Baker, a political scientist at Rutgers University. "As it stands, he should be okay, but this could rally evangelicals elsewhere."

New Jersey's governor and legislature have danced warily around the question of same-sex marriage. The legislature passed a domestic-partnership law in 2004 but has been reluctant to touch the politically sensitive question of marriage. Under existing law, same-sex couples can enjoy some of the legal rights of marriage, such as health coverage for the partners of state workers and the right to inherit possessions if a partner leaves behind no will. But such couples still lack dozens of legal rights accorded to married couples, including some governing taxes and adoption.

Gov. Jon S. Corzine (D) has supported domestic partnership but not same-sex marriage. Yesterday he hailed the decision, without precisely tipping his hand about which legislative remedy he favored. "The Court ruled that same sex couples are entitled to equal rights," he said in a statement. "And I look forward to the legislative process implementing the Court's decision."

Seven gay couples had sued in state court for the right to marry but lost their cases in lower state courts. On Wednesday, they gathered in the offices of their attorneys in Newark to await the court's decision.

When the high court's ruling was announced shortly after 3 p.m., there was less jubilation than stunned puzzlement. Karen Nicholson-McFadden of Aberdeen, N.J., gave a little laugh, and then the tears came. Her partner, Marcye Nicholson-McFadden, held Karen's hand.

"I'm supposed to feel relief, right?" said Karen, who sat beside the couple's two children, Kasey, 7, and Maya, 3.

Marcye noted that their relationship to each other has been questioned at the most critical moments. They pay higher premiums for car insurance and health insurance, and they have spent thousands of dollars to secure joint property ownership and custody of their children. She is choosing to be hopeful.

"Our neighbors, after being told we deserve our fair rights, will not relegate us to a separate class," Marcye said later at a news conference.

Elsewhere, opponents of same-sex marriage expressed disappointment but promised to gear up for a legislative battle.

"We are saddened that the Supreme Court of New Jersey continues on a parade of legislating from the bench," said John Tomicki, executive director of the League of American Families, a politically conservative group opposed to same-sex marriage.

New Jersey state Sen. Gerald Cardinale (R) has already proposed a state constitutional amendment that defines marriage as between a man and a woman. Now he says he will press for the people of New Jersey to limit marriage in a referendum in 2007. "The court is asking the legislature to make new laws and is prescribing what those laws can be," Cardinale said. "That is absurd."

After a similar state Supreme Court decision, Massachusetts permitted same-sex marriage in 2003. But in recent years, courts in the states of Washington and New York have ruled against same-sex unions, and voters or legislators in 20 states have passed constitutional amendments to ban same-sex marriage. Seven more are on the ballot this year.

New Jersey is one of only five states without either a statute or a constitutional amendment to ban same-sex unions, but its lower courts have said that marriage laws apply only to opposite-sex couples. The state was home to 20,677 same-sex couples last year, according to American Community Survey.

Supporters of same-sex marriage expressed hope that the country has grown more accepting after witnessing same-sex weddings in Massachusetts and the advent of civil unions in Vermont. "The sky didn't fall," said David Buckel, a lawyer at the Lambda Legal Defense and Education Fund, who helped argue the New Jersey case. "People see that some families are helped and nobody else's families are hurt."

Changes in New Jersey could set a more momentous precedent. New Jersey has no law like the one in Massachusetts that bars nonresidents from marrying there if the weddings could not be recognized in their home states. Thus, same-sex couples from across the nation have hoped New Jersey might offer a refuge for those seeking to marry.


© 2006 The Washington Post Company

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