Hundreds of same-sex couples have gotten married in New Jersey since October, when a New Jersey court ruled that the state’s civil union law violated the New Jersey Constitution’s equal protection clause. But it is unclear when -- or if -- the state Legislature will codify the lower-court ruling that set those marriages in motion.
Because marriage rights were conferred by Mercer County Superior Court Judge Mary Jacobson and not the state Supreme Court, there are concerns that the ruling could be vulnerable down the road should federal law change or Gov. Chris Christie be successful in remaking the state’s high court.
Advocates for marriage equality, however, are making it clear that they want a clean bill -- meaning one that does not create new exemptions for those who are not supportive of gay marriage. For instance, they are concerned that a bill could be compromised by making exceptions for religiously affiliated groups.
Garden State Equality, one of the plaintiffs in the litigation that resulted in Jacobsen’s ruling, together with the Lambda Legal Defense Fund, which represented the couples in the case, pushed state Sens. Loretta Weinberg (D-Bergen) and Raymond Lesniak (D- Union) to pull legislation -- S-3109 -- from consideration on Monday. The bill, which essentially updated legislation vetoed in 2012 by Gov. Chris Christie, would have codified Jacobson’s ruling and allowed existing civil unions to become marriages, while also creating a broad exemption for religious groups.
Those exemptions, advocates worry, could have opened the door for entities that serve the general public but are owned by religious organizations, such as wedding halls, to discriminate against lesbian and gay couples by denying them service.
“Religious beliefs already are covered under the First Amendment,” GSE President Troy Stevenson said Tuesday. “The advocates, in general, do not believe that we should be caveating rights of LGBT couples more than we do any other couples.”
Jacobson ruled on September 27 that the U.S. Supreme Court’s decision to overturn a key element of the federal Defense of Marriage Act and force the federal government to recognize same-sex marriages for the purpose of federal benefits meant that New Jersey's civil-unions law violated the state constitution's equal-protection clause. Christie initially appealed, but dropped the effort after a unanimous state Supreme Court refused the governor’s request for a stay and sharply criticized the governor’s argument against marriage equality.
That meant same-sex marriages could go forward, though Weinberg said Tuesday that it left several questions unanswered: How should existing civil unions be handled? Should New Jersey recognize marriages from other states? Should there be rules in place governing religiously owned public accommodations?
S3109 was an effort to answer those questions, Weinberg said. It was scheduled for a Senate Judiciary Committee hearing on Monday, but after Garden State Equality, Lambda Legal, and others in the activist community raised concerns, she pulled it from the schedule.
“We are not under a cudgel that this needs to be done in two or three weeks,” she said. “I thought it was appropriate, but they thought the legal questions were larger and I respect their understanding of constitutional law.”
Hayley Gorenberg, deputy legal director for Lambda Legal, said there is a need for clarification of some details, but not in the religious sphere.
“The First Amendment reigns supreme,” she said Tuesday. “Clergy people get to decide who they marry and who they wish to solemnize or not solemnize, depending on whatever their religious tenets are.”
Her concern, she said, is that any codifying legislation not endanger public accommodation rules. Groups like the Roman Catholic Knights of Columbus, for instance, can restrict rental of their facilities to members of the organization or to members of an affiliated parish. But once they open their doors to the larger community, they cannot discriminate even if that means renting a hall to a same-sex couple.“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.”
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.