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Supporters Seek to Make Same-Sex Marriage the Letter of the Law

“Places of public accommodation should serve people without discrimination,” she said. “There should be no muddling of that issue.”

Assemblyman Reed Gusciora (D-Mercer), sponsor of the Assembly version of the vetoed same-sex marriage bill, said Weinberg was right to pull S-3109. The original bill, S-1/A-1, included the exemptions in an effort to win over reluctant legislators, but with same-sex marriage now legal there is no reason to make those kind of concessions. Weinberg’s bill would have “opened a can of worms” that could have allowed businesses and other groups to skirt public accommodation rules.

The original bill’s exemptions were included “to mollify conservatives and conservative Democrats and to assure them they we were not going to force the Catholic Church to marry gay couples,” he said. “It was unnecessary then and it is unnecessary now, and I was surprised that there was a bill now that would now have a religious exemption.”

Gusciora and Assemblyman Tim Eustace (D-Bergen) have introduced A-4566, which would create a mechanism to convert civil unions into marriages for those couples who are interested without having to pay an additional fee and would recognize marriages performed outside of New Jersey. The bill is unlikely to move during the current session, which ends in January. But Gusciora says the bill offers a strong starting point for discussion when the new Legislature convenes.

“My bill is a legitimate alternative and it should be a starting discussion for next year,” he said. “My point is why open a can of worms with the religious exemption.”

Vulnerable Ruling

Robert F. Williams, associate director of the Center for State Constitutional Studies at the Rutgers University School of Law in Camden, said there are concerns that the lower-court ruling may be vulnerable.

“Requiring recognition of same-sex marriage did not come from the Supreme Court,” he said. “A decision to deny a stay is hardly a decision on the merits.”

Williams, who supports same-sex marriage, said a number of factors could change and potentially alter the current status quo. Gov. Christie, he said, will have several opportunities to appoint Supreme Court justices, and he has promised that they will be conservative judges.

Shifts at the federal level also could affect the status of New Jersey marriage law. If the federal government were to recognize civil unions for federal benefits, it would change the rationale on which the Jacobson ruling is based because the benefits gap would be closed.

“It is hard for many of us to imagine a new case to come up” that could make it to the Supreme Court, he said. “It is hard to know who would have standing or who would be injured enough to bring a new case, but many of us have been surprised before. The problem with the existing status is a bit shaky in its foundation.”

Singleton disagrees. He said there was “no ambiguity in the court’s stay decision” and that “marriage equality is the law in New Jersey and I do not believe that it is in jeopardy.”

“The stay decision was unanimous, a strong decision, and the idea that rolling back this decision, while there is a legal, minute possibility, nobody thinks this is going to happen,” he said. “It would be an unprecedented reversal of rights.”

Gusciora said the potential for the Jacobson ruling to be overturned at this point is “no different than us passing the law and then a new Legislature coming in and unpassing it.”

Weinberg, however, thinks something needs to be adopted that “codifies the court decision, which we should be doing” and that “clarifies some issues that court didn’t address.” Her hope is that the debate will continue in 2014.

“We will be talking about this,” she said.

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