By Dana Rudolph
TRENTON, N.J.- Five days after the New York State legislature legalized marriage for same-sex couples, LGBT civil rights supporters in New Jersey are asking the state courts to rule that the state constitution there guarantees same-sex couples marriage equality.
On June 29, Lambda Legal, a national LGBT legal group, and Garden State Equality, New Jersey’s leading LGBT political group, filed a lawsuit in a New Jersey Superior Court in Trenton on behalf of seven same-sex couples. The lawsuit argues that the state’s existing civil union laws do not provide them with full equality – an equality the state Supreme Court said, in October 2006, is guaranteed by the state constitution.
The plaintiffs say the civil union law violates the equal protection clauses of both the New Jersey Constitution and the 14th Amendment of the U.S. Constitution. The lawsuit is Garden State Equality, et al. v. Paula Dow, et al. Paula Dow is the state’s attorney general.
The couples say they have each had difficulties getting their civil unions recognized, and several plaintiffs were prohibited from making medical decisions for their partners when hospital personnel did not know what rights a “civil union” conveyed. Two of the female plaintiffs, after the death of one of their children, had a funeral home question what a civil union meant. All but one of the couples are parents.
Their claim rests in part on a 2006 New Jersey Supreme Court ruling, Lewis v. Harris, in which the court said the state constitution’s promise of equal protection requires that same-sex couples be able to enjoy the same benefits of marriage as opposite-sex couples.
But the majority also said it was up to the legislature to determine whether those benefits are delivered through marriage licenses or a “parallel” structure called by another name. The legislature responded by enacting civil unions, which became legal in February 2007.
But in December 2008 the legislature-appointed a Civil Union Review Commission, which found that “the separate categorization established by the Civil Union Act invites and encourages unequal treatment of same-sex couples and their children.”
“In a number of cases,” the Commission wrote in its final report, “the negative effect of the Civil Union Act on the physical and mental health of same-sex couples and their children is striking, largely because a number of employers and hospitals do not recognize the rights and benefits of marriage for civil union couples.”
A marriage equality bill failed to pass the state Senate in January 2010, and supporters and opponents attributed the failure in large part to the defeat of Democratic Governor Jon Corzine the previous November, as well as the opposition of then-incoming Republican Gov. Chris Christie.
Lambda Legal, in March 2010, filed a motion to reactivate the case in the state Supreme Court, asserting that civil unions did not provide the same benefits as marriage, as evidenced by the report of the Civil Union Commission, and thus did not meet the requirements of the court’s 2006 ruling.
The court in June 2010 refused to hear the case, in a 3-3 decision that was one short of the four needed to grant a hearing. The court said the case must first go through the trial court process in order to develop “an appropriate trial-like record” – which Lambda Legal hopes to do with its current lawsuit.
“We’ve received reports from multitudes of civil union couples who have told us their employers refuse to provide the equal rights and benefits the civil union law mandates,” said Steven Goldstein, chairman of Garden State Equality. “It’s time for the courts to fix this mess and give full marriage equality to New Jersey’s same-sex couples and their children.”
In a related development, New Jersey Assemblyman Reed Gusciora, the state’s only openly gay legislator, introduced a new marriage equality bill June 13. And New Jersey Senate President Steve Sweeney on June 20 apologized on the floor of the Senate for not voting in favor of marriage equality in January 2010, when the measure gained only 14 of the 21 votes it needed to pass. He called his abstention “the biggest mistake of my legislative career” and “a decision based purely on political calculations.”
Sweeney’s apology prompted Goldstein to issue a statement noting that the votes are now there to pass marriage equality in both houses of the legislature, but not enough votes to override an expected veto from Governor Christie. That means “New Jersey will have to win marriage equality through other means,” Goldstein said.
It could take a while. The 2006 state Supreme Court ruling came only after the case, first filed in 2002, wound its way through the lower courts.
Two other states – Connecticut and Vermont – also won marriage equality after their highest courts ruled that civil unions were insufficient in providing equal rights and benefits.