Jersey court orders OK of gay unions

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The New Jersey Supreme Court yesterday said that although there was no right to same-sex "marriage" in the state constitution, homosexual couples were treated unequally by the state and that lawmakers must find a way to correct this.

"Although we cannot find that a fundamental right to same-sex marriage exists in this state, the unequal dispensation of rights and benefits to committed same-sex partners can no longer be tolerated under our state Constitution," said Justice Barry T. Albin, who wrote the 4-3 decision in Lewis v. Harris.

Justice Albin said the democratic process must decide "whether marriage or some other term" will be used to name the rights and benefits, but the high court gave state lawmakers 180 days to "amend the marriage statutes to include same-sex couples" or "create a parallel statutory structure" that will give such couples "on equal terms" the rights, benefits and obligations borne by married couples.

The long-awaited ruling was a disappointment to homosexual rights advocates, who were hoping the court would make New Jersey the second state after Massachusetts to legalize same-sex "marriage."

"Those who would view today's Supreme Court ruling as a victory for same-sex couples are dead wrong," said Steven Goldstein, head of Garden State Equality, a homosexual rights group in New Jersey.

However, he said, three state lawmakers are poised to introduce a bill to legalize same-sex "marriage" and "thousands of us will now hit the streets, the phones and the hallways to get this legislation passed."

All seven justices agreed that the current situation was unconstitutional, but the three dissenters wanted the court to directly create a marriage right for homosexuals.

Retiring Chief Justice Deborah T. Poritz led the dissenters, saying that she could "find no principled basis, however, on which to distinguish those rights and benefits from the right to the title of marriage," adding that denying the homosexual couples the symbolism surrounding the word "marriage" was to "demean" them.

David Buckel of Lambda Legal, who represented the seven homosexual couple plaintiffs, was more optimistic, saying, "The bottom line here is that the entire court said that there must be a remedy for the inequality that bars same-sex couples from marriage."

It should be easy for the legislature to pass full marriage rights for same-sex couples, given the public's widespread support for the issue, he added.

Many social and religious conservatives described yesterday's decision as another loss for homosexual "marriage," but no one called it a total victory for their side either.

"This is a wake-up call for people who believe that marriage doesn't need constitutional protection," said Glen Lavy, a lawyer with the Alliance Defense Fund.

"This is probably the best decision we could have hoped for out of New Jersey, the court that thought it could order the Boy Scouts to accept gay scoutmasters," said Maggie Gallagher, president of the Institute for Marriage and Public Policy.

The high court "pulled a Vermont," said Len Deo, president of the New Jersey Family Policy Council, referring to the Vermont Supreme Court's 1999 ruling that forced state lawmakers to either enact same-sex "marriage" or a parallel system of benefits for same-sex couples. The ruling resulted in the nation's first civil union law.

In his majority opinion, Justice Albin said there was no constitutional right to same-sex "marriage."

"Only rights that are deeply rooted in the traditions, history and conscience of the people are deemed to be fundamental," he wrote.

The New Jersey Legislature, which has a Democratic majority in both chambers, already has enacted a domestic-partner law that gives same-sex couples hospital-visitation rights and health and pension benefits for state employees.

State lawmakers should "do the simplest, fairest and most sensible thing: include gay and lesbian couples within the existing framework of civil marriage," said Lee Swislow, executive director of Gay & Lesbian Advocates & Defenders.

However, John Tomicki, head of the New Jersey Coalition to Preserve and Protect Marriage, said his allies will work to both stop enactment of same-sex "marriage" and put a constitutional marriage amendment on the November 2007 ballot.