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Zenzali Lael, 9, with Sarah Lael and her partner, Su Lael, reacted to a ruling that same-sex couples are entitled to the same rights as heterosexuals under New Jersey marriage statutes.
Zenzali Lael, 9, with Sarah Lael and her partner, Su Lael, reacted to a ruling that same-sex couples are entitled to the same rights as heterosexuals under New Jersey marriage statutes. (Ed Murray/ The Star-Ledger)

N.J. court orders equal rights for same-sex couples

Label is up to lawmakers; gay marriage a possibility

New Jersey's highest court ruled yesterday that same-sex couples are entitled to the same rights as heterosexual couples under state marriage statutes.

The court left the task of naming the newly recognized right -- whether marriage, civil union, or something else -- up to the New Jersey Legislature, which must vote within 180 days, leaving open the possibility that the Garden State could become the second state, after Massachusetts, to permit same-sex marriage.

In a 4-3 decision, the New Jersey Supreme Court was unanimous in its view that gays and lesbians should be provided with the same rights heterosexuals have under marriage statutes but bitterly divided over what to label the right and how to establish it.

"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," wrote New Jersey Supreme Court Justice Barry T. Albin in the majority opinion.

The ruling comes at a politically charged moment, with national midterm elections two weeks away and the Massachusetts Legislature set to convene a Constitutional Convention Nov. 9 to debate gay marriage.

With the court's ruling, the New Jersey court became the first one outside New England to expand the civil rights of gay couples but stopped short of what the Massachusetts Supreme Judicial Court did when it required marriage rights for same-sex couples in a landmark ruling three years ago.

The New Jersey ruling mirrors the step that the Vermont Supreme Court took in 1999 in a decision that prompted the Vermont Legislature to authorize civil unions for same-sex couples. Vermont was the first state to authorize civil unions and was followed by Connecticut.

Unlike in Massachusetts, the New Jersey court said such a sweeping cultural change as allowing gay marriage is best left to elected legislators rather than appointed judges.

"We cannot escape the reality that the shared societal meaning of marriage -- passed down through the common law into our statutory law -- has always been the union of a man and a woman," the majority opinion said. "To alter that meaning would render a profound change in the public consciousness of a societal institution of ancient origin."

In a strongly worded dissent, Chief Justice Deborah T. Poritz wrote that to rule that gay couples deserve all the rights of married heterosexuals -- except the right to call their union a marriage -- is unfair and an affront to the Constitution.

"What we 'name' things matters, language matters," she wrote for the minority. "Labels set people apart as surely as physical separation on a bus or in school facilities."

Yesterday's decision drew mixed reactions from gay rights activists who had viewed the New Jersey high court as the one most likely to follow the cue of the Massachusetts Supreme Judicial Court.

Laura Pople, president of the New Jersey Lesbian and Gay Coalition, applauded the decision but was disappointed it did not go as far as Massachusetts.

"We will be pushing to have the language of our marriage statute to be amended to refer to just any two people as a couple, rather than man and wife," she said.

But opponents said the decision would galvanize conservative voters who fear the spread of gay marriage and could become a factor in close political contests nationwide at a time when control of Congress is in the balance.

Kris Mineau , president of the Massachusetts Family Institute, who is leading the effort to pass a constitutional ban on gay marriage in Massachusetts, said he was pleased the New Jersey court had not legalized gay marriage but still condemned the ruling for concluding that gay couples have the same constitutional rights as married heterosexuals.

"The New Jersey court joins the Massachusetts court in legislating from the bench," he said in a statement. In an interview, he predicted the ruling will "add fuel to the fire here in Massachusetts in the cultural battle over marriage."

Governor Mitt Romney , who has condemned same-sex marriage as he courts cultural conservatives in a potential bid for the presidency, also criticized the ruling.

"I believe that the best and most reliable way to protect traditional marriage is through a federal marriage amendment, as opposed to letting activist judges make policy on a state-by-state basis," he said in a statement.

GOP gubernatorial candidate Kerry Healey , who unlike Romney supports civil unions but not gay marriage, said through a spokeswoman that states should be given flexibility to decide the issue on their own. Democratic gubernatorial hopeful Deval Patrick did not immediately comment on the New Jersey case, but Patrick is on the record supporting gay marriage.

One Massachusetts lawmaker who supports gay marriage said the ruling would galvanize opponents of the proposed marriage ban as they go into the Constitutional Convention.

"I think it will certainly have a psychological effect on the supporters of same-sex marriage," said state Representative Byron Rushing , a Boston Democrat. "It will make them feel that this is going to be a decision that is going to be made from state to state, that we're not going be isolated."

Legal scholars meanwhile said they were struck by the division in the New Jersey court over what same-sex unions should be called.

"The court seems to think that eventually the proper labels will take hold," said Andrew Koppelman , a Northwestern law professor and author of "Same Sex, Different States," a book on gay rights. "The Legislature can call it cheeseburger if they want."

But Harvard law professor Lawrence H. Tribe , who supports gay marriage rights, said the choice of a name is significant.

"There are intangible benefits that go with the state's symbolic use of the word marriage. What isn't clear is if those benefits could be limited to heterosexual couples," he said, adding that even symbolic benefits can be important. "People live and die for symbols."

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