Court’s Rulings on Same-Sex Marriage Raise Hopes of Advocates Here

Supporters predict change will come soon to NJ but Christie vows to again veto any marriage-equality bill

Credit: Lambda Legal
Keith Heimann (left) and Tom Davidson, one of six same-sex couples who are arguing in a pending case that the state’s civil union law violates both the state and federal constitutions.
It won’t be long before same-sex marriage is legal in New Jersey, gay-rights advocates said in the wake of yesterday’s U.S. Supreme Court rulings striking down part of the U.S. Defense of Marriage Act and reinstating same-sex unions in California.

But Gov. Chris Christie made it very clear last night that he is not going to help their cause in any way.

“It has no effect on New Jersey at all,” said Christie of the high court decisions last night on the “Ask the Governor” show on NJ 101.5 radio station. Asked what he would do if the Legislature sent him another marriage equality bill, Christie quickly replied, “I’ll veto it.”

So if gay New Jerseyans are to have the right to marry, lawmakers are going to have to override Christie’s conditional veto of the bill they sent him last year. Or the state courts will have to rule in favor of Garden State Equality and six same-sex couples who are arguing in a pending case that the state’s civil union law violates both the state and federal constitutions. Or the state Supreme Court could step in on its own and declare New Jersey’s law invalid, which is what at least one state legislator thinks may happen.

“The court could act sua sponte, on its own, without the litigants having to make a motion, and say the party’s over for opponents of gay marriage, like Gov. Christie,” said Sen. Raymond Lesniak, D-Union and a practicing lawyer. “It’s clear-cut … The domestic partnership law is clearly unconstitutional.”

Christie: Decision is ‘Wrong’

Christie, who vetoed a same-sex marriage bill last February almost immediately after the Legislature passed it, initially declined to comment on the rulings yesterday. But when asked about the issue last night, the Governor called the decisions “wrong” and another example of judicial activism. He said New Jersey gay rights activists are welcome to pursue their court case and that those who want to change the law should put the question on the ballot, as he specified in his conditional veto of the bill.

“If the people of the state of New Jersey want to amend our constitution in order to make same- sex marriage legal … I wouldn’t object to it,” Christie said. As for himself, “I’d vote against it when it went to the ballot.”

A poll earlier this by the Eagleton Institute of Politics found 67 percent of voters in New Jersey support a ballot vote on same-sex marriages and 59 percent said they would vote yes.

Democratic legislative leaders oppose putting the issue on the ballot, saying it is a question of civil rights and as such are the responsibility of the Legislature, not voters.

Christie’s opponent in this year’s gubernatorial race, Sen. Barbara Buono, D-Middlesex, characterized Christie’s initial no-comment as a “duck and run,” evidence of his indecision when a question is “unscripted” until he can figure out “how it will play with right wing Republicans” whose votes he will need if he runs for president in 2016.

Buono said she supports the Legislature’s taking quick action on a veto override.

“We have to seize moment,” said Buono, whose youngest daughter, Tessa, earlier this week publicly came out as gay and criticized Christie for “blatantly delegitimizing an entire group of people” by blocking marriage equality. “We have momentum. We have the Supreme Court on our side … As legislators, we have taken an oath to uphold the Constitution. It’s not even debatable; we have to take up and override the governor’s veto.”

No vote yet on veto override

Senate Majority Leader Loretta Weinberg, D-Bergen, said the Legislature will not vote on a veto override in today’s session. Prior to Christie’s statement last night, Weinberg said she was hoping Christie would have a change of heart on the issue but, barring that, lawmakers could seek an override.

“We always have the opportunity of the override vote,” Weinberg said. “The future is hopefully not too far away.”

Lesniak said an override would succeed if Christie would let Republicans vote the way they feel. The Senate would need 3 more votes, while the Assembly would need 12.

“I’ve been asking Governor Christie for quite a while now,” he said. “This is a matter of conscience; you should vote your conscience. If the governor sends that message, I’m sure we would very quickly see an override.”

“Ask the Governor” host Eric Scott essentially asked Christie this question and received a strong rebuke, as well as a non-answer.

“That’s just a fake issue,” Christie said. “You are asking a stupid question. You are assuming they’re not voting their conscience now. I’m not going to answer beyond that.”

Weinberg noted that proponents’ other strategy is to pursue action in court. She said she will be with members of Garden State Equality and Lambda Legal, which is representing them and the couples who are challenging the state’s civil union law, today in Trenton to discuss their next steps.

Among the plaintiffs are Keith Heimann and Tom Davidson of Shrewsbury, who entered into a civil union in New Jersey in February 2007 and were married in California in July 2008, one of 18,000 couples married during the brief period of time that same-sex marriage was legal in California. Despite their civil union in New Jersey and marriage in California, Heimann said Davidson and their two daughters were “kicked off” his health insurance – the state health benefits plan – after he could not produce a New Jersey marriage license in response to an insurance audit.

“It was a real Catch-22 for a couple of months,” said Heimann, a teacher at Brookdale Community College. “It took an awful lot of legal wrangling with lawyers and state senators who didn’t want to help because they didn’t support it.”

Ruling called ‘game-changer’ for NJ

Hayley Gorenberg, deputy legal director of Lambda Legal and the lead attorney in the suit, said the Supreme Court ruling is “a game-changer” for New Jersey.

In one 5-4 decision, the court invalidated DOMA, which had prohibited couples in any state that allowed same-sex marriage from receiving an array of federal marriage rights that heterosexual couples have.

It another 5-4 ruling, the court’s decision let stand lower court rulings that California’s Proposition 8, which had defined marriage as between a man and woman, was unconstitutional, in effect reinstating same-sex marriage there, making California the 13th state to sanction marriage equality.

“When Lambda Legal filed our marriage-equality lawsuit in New Jersey two years ago, we were prepared for a long legal battle that we have always believed will end with a decision in favor of equality,” Gorenberg said. “We know that there are many roads to justice, and our six plaintiff couples, their families and all same-sex couples in New Jersey need marriage equality as quickly as possible. With this new legal landscape, New Jersey’s same-sex couples and their families need swift action, and we will now move ahead to secure that through our case.”

Yesterday, according to sources, the lawyers reportedly were asking the judge overseeing the case for an expedited hearing, given the U.S. Supreme Court rulings.

While the case dates back two years, the fight in New Jersey goes back more than a decade.

Lamba Legal first filed a suit in state court seeking marriage equality in June 2002. That matter went to the state Supreme Court, which ruled in October 2006 that denying same-sex couples the same rights and benefits as married couples was unconstitutional and ordered the Legislature to take action within 180 days. Lawmakers responded with the current civil-union law. After the New Jersey Civil Union Review Commission stated in December 2008 that civil unions do not provide the kind of equality the court sought, Lambda Legal tried to go back to the Supreme Court but was first sent back to Superior Court. That prompted the June 2011 lawsuit.

That case has been proceeding through the court system, with the couples giving depositions in April and May.

“Now it’s just a waiting game,” said Heimann, who said he and his husband “couldn’t be happier” with the Supreme Court’s rulings.

Other groups, including the American Civil Liberties Union of New Jersey, are also planning to work to try to shorten the wait for same-sex marriage in New Jersey.

Advocates in NJ plan big push

“New Jersey is now ground zero for the next big battle for marriage equality,” said Udi Ofer, executive director of the ACLU-NJ. “Our state can no longer hide behind the federal government to justify its own discrimination … New Jersey should enshrine the Supreme Court’s decision into our state’s law and end discrimination of LGBT couples who wish to marry.”

Assemblyman Reed Gusciora, D-Mercer and one of two openly gay members of the Legislature, agreed that New Jersey needs to push to allow same sex-marriage but he disagrees with party leaders about placing the question on the ballot. He thinks it should be put to a public vote.

“This victory notwithstanding, we still need to correct our own inequality here in New Jersey by either the governor withdrawing his veto on marriage equality or by placing the matter up to the voters so we can correct this ourselves,” said Gusciora, who was a prime sponsor of the Marriage Equality and Religious Exemption Act that Christie vetoed.

Same-sex couples in the 13 states that allow them to marry will now be able to receive the same federal benefits as any other married couple, but civil-union couples in New Jersey will not.

Heimann would like to see New Jersey correct that inequity as soon as possible.

“This is, in my opinion, blatant discrimination,” he said. “Our hope is the Legislature and/or the governor will see past their foolish ways and understand that families like ours should be treated like all other families.”