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Likely Christie Appeal Casts Pall on Superior Court Ruling on Gay Marriage

Plaintiff's legal team doubts governor has grounds for stay, will continue battle in State Supreme Court if necessary

gay marriage lawyers
Hayley Gorenberg (right), a lead lawyer for the plaintiffs, speaking at Montclair rally, with Garden State Equality executive director Troy Stevenson.

Gay rights activists are celebrating a New Jersey judge's decision Friday that same-sex couples can legally marry in the Garden State. But they still have questions about when they can actually tie the knot. The superior court judge set October 21 as the day they can apply for licenses, but Gov. Chris Christie has said he would appeal the ruling, and it's not clear whether he will seek a stay.

Hayley Gorenberg, deputy legal director at Lambda Legal, one of the attorneys for the plaintiffs, said the immediate impact would be to allow New Jersey’s same-sex couples can marry 72 hours after they apply for licenses. They would then have access to federal benefits.

She also said that public officials -- mayors and others -- would not be able to discriminate in performing marriages; they could opt out only by not performing any weddings. at all. Religious institutions would be exempt.

Carrie Faroane, of Plainfield, said there are pragmatic concerns surrounding the decision. She said that despite being in a civil union she and her partner, Chao-I Chen, have not been able to file joint tax returns or share health coverage, and there remains the possibility that, were one of them to get sick, the other’s rights could be superseded by blood relatives. She called her civil union a “Jim Crow marriage” and “marriage-lite.”

“If something happened to me, other members of the family could step in and say ‘We are her blood,’” Faroane said. “But this is the person I want to make decisions for me, to inherit what I have, who I want to spend my life with.”

The decision by Mercer County Judge Mary Jacobson found that in the wake of a U.S. Supreme Court ruling in June overturning a portion of the federal Defense of Marriage Act, the state's civil-unions law violated its own constitution's equal-protection clause.

If the decision stands, New Jersey would be the 14th state to legally recognize the marriage of same-sex couples. The District of Columbia and several American Indian tribes also recognize gay marriage.

A number of Democratic legislators including Assembly Speaker Sheila Oliver and Senate President Steve Sweeney, lauded the decision. Sweeney and senators Loretta Weinberg, Raymond Lesniak, Nia Gill will be holding a press conference on Monday at noon to address Friday’s decision and the potential override of the governor’s veto.

The governor, in a statement on Friday, did not specifically say that the administration would appeal, but he said he planned to let the State Supreme Court have the final say.

“Gov. Christie has always maintained that he would abide by the will of the voters on the issue of marriage equality and called for it to be on the ballot this Election Day,” Michael Drewniak, the governor’s press secretary, said in an email referring to the Christie's conditional veto of legislation legalizing same-sex marriage. “Since the Legislature refused to allow the people to decide expeditiously, we will let the Supreme Court make this constitutional determination.”

The governor's office did not say whether it would seek a stay of the decision pending an appeal, but attorneys for the plaintiffs -- six gay and lesbian couples and the advocacy group Garden State Equality -- said they believe a stay is unwarranted and that they expect the appellate and Supreme courts to uphold the superior court ruling.

Judge Jacobson’s 53-page summary judgment ruling relied on arguments made in Lewis v. Harris, the 2006 state Supreme Court decision that ordered the state to grant gay and lesbian couples the same legal protections and benefits as heterosexual couples.

That decision stopped short of legalizing same-sex marriage and kicked the discussion to the state Legislature. In 2007, the Legislature passed a statute creating civil unions, which lawmakers said would be the equivalent of marriage, but reserved the official designation for heterosexual couples. A 2008 report from a state commission created as part of the civil-unions law found that same-sex couples were still being denied some rights and recommended that the Legislature revisit the law.

In the meantime, the Legislature passed S1 in February 2012, which would have legalized same-sex marriage in the state. The bill passed the Senate 24-16 with two Republicans voting yes and one Democrat voting no. It passed the Assembly 42-33, with three Democrats voting no. The governor conditionally vetoed the bill, rewriting the legislation to put a referendum on the ballot. Democratic leadership from both houses said they would not accept the changes and planned to hold an override vote. The Legislature has until January to vote on the override, which will require 27 yes votes in the Senate and 54 yes votes in the Assembly.

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