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Same-sex marriage (SSM) in New Jersey via the state courts

2013-SEP: More reactions to judge's ruling.
Garden State Equality v. Dow
case fast tracked.

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Earlier information about the case

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In this web site:
"SSM" refers to same-sex marriage;
LGBT refers to lesbians, gays, bisexuals, and transsexuals

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Late 2013-SEP: Some reactions to Judge Jacobson's decision by those opposing marriage equality:

  • Len Deo, president of the New Jersey Family Policy Council -- a conservative group in the state that opposes marriage equality -- expressed his displeasure, saying:

    "For our state, essentially, this is judicial activism again: one judge implementing same-sex marriage on New Jersey." 1

    He also said:

    "What disturbs me more than anything else is instead of letting the people weigh in on this ... that judicial activism rules again. 2

    Apparently unaware of the wording and reach of the First Amendment to the U.S. Constitution, he also expressed concern about whether religious organizations would be subject to prosecution if they refused to marry same-sex couples. No such possibility exists in the U.S. Clergy, congregations and denominations have been refusing to marry couples on the basis of their religion, denomination, physical disability, race, sexual orientation, immaturity, genetic closeness, age, etc. for centuries and have never been prosecuted.

  • Brian Brown, president of the National Organization for Marriage -- the main national group attempting to prevent marriage equality -- wrote in an email to his mailing list:

    "This is another outrageous example of judicial activism. An activist judge has overreached her authority and chosen to impose same-sex 'marriage' on the entire state of New Jersey. Judge Jacobson has trampled on the right of the people of New Jersey to define marriage, a right that the Supreme Court has upheld in the very case she misuses to redefine marriage. ..."

    This is a gross abuse of power that cannot be allowed to stand. We urge Governor Chris Christie to appeal this lower court ruling immediately. It's essential that a single lower court judge not be allowed to impose her own views of marriage on the entire state." 3

  • As of 2013-SEP-29, The Family Research Council (EFC) has not responded to the court decision. The EFC has been designated by the Southern Poverty Law Center as an anti-gay hate group. 4

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Late 2013-SEP: Some reactions by legal specialists:

  • Frank Askin is the director of the Constitutional Rights Clinic at Rutgers School of Law in Newark, NJ. According to the Philadelphia Inquirer, he said the decision was inevitable after the repeal of [Section 3] of the [federal] Defense of Marriage Act, and that he thought Christie was wasting his time by appealing. 2

  • Ronald Chen is acting dean at Rutgers-Newark Law, and wrote amicus briefs for the case. He considers that the logic of Judge Jacobson's ruling is unassailable. He said:

    "Unless the New Jersey Supreme Court overrules its prior precedents, it should affirm this ruling.

Also, he said that if the court order is not stayed before OCT-21, then:

    ... any marriage license issued as of OCT 21 would remain valid, regardless of the court's ultimate decision. ... Once they're married, they're married." 2

To paraphrase comedian Stephen Colbert: "Constitutions have a well-known liberal bias."

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Late 2013-SEP: Future of the religious exemption to allow religious groups to discriminate over SSMs:

If Governor Christie (R) had signed the SSM bill into law, then religious groups would be protected in two ways:

  • The law would have protected clergy and religious groups who wished to use their religious freedom to discriminate against same-sex couples by refusing to marry them. The SSM bill gave them immunity from prosecution under state human rights legislation which normally prohibits discrimination based on sexual orientation, gender, or various other grounds. That was a actually a redundant clause because clergy were already given immunity under the First Amendment of the U.S. Constitution, centuries ago. Clergy in the past have refused to marry couples if they were of the wrong race, of the wrong religion, of the wrong denomination, interracial, immature, insincere, etc. In the case of the Roman Catholic Church, priests have refused to marry couples because one of the spouses was physically disabled. In essence, this clause would grant faith groups a right that they already have und the U.S. Constitution.

  • The law would also have protected any "religious society, institution or organization, or any employee thereof" who wished to refuse services for same-sex couples who wanted to be married. This would presumably include couples who wanted to rent a church hall for a reception, or register for a marriage introduction course at a church, etc. 5

As of the end of 2013-SEP, it seems that momentum is building to achieve marriage equality in New Jersey -- perhaps in 2013. It can be approved by one of three paths:

  • The Legislature may override the Governor's veto.

  • A referendum might be held to allow the citizens to vote on SSM.

  • The New Jersey Supreme Court might uphold the Superior Court's decision.

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2013-SEP-30: Fast-tracking the Garden State Equality v. Dow case:

The Christie administration announced that it would appeal Superior Court Judge Mary Jacobson's ruling directly to the New Jersey Supreme Court, rather than appeal it first to the state Appeals Court.

Acting Attorney General John Hoffman asked Judge Jacobson to issue a stay on her order, so that same-sex couples would not be able to marry starting on OCT-21. A stay would block SSMs until the Supreme Court decided whether to take up the case. At that point, the Supreme Court would probably issue its own stay. Judge Jacobson asked all sides to file briefs by OCT-04 giving their reasons for and against a stay.

The Democrats in the state Senate held a press conference. They urged the state Supreme Court to rule on SSM by OCT-21.

No Republican senator or representative has commented so far on the superior court decision. However:

  • Senator Stephen Sweeney (D), the President of the Senate, said:

    "It needs to happen, and it needs to happen now."

  • State Senator Raymond Lesniak (D), who sponsored the SSM bill, said that the Governor should:

    ".., stop wasting taxpayer dollars. ... You’re defending the indefensible. ... It is inevitable that marriage equality ... [will become] the law of the land in the State of New Jersey."

  • Sen. Loretta Weinberg (D) noted the silence from the Republican lawmakers and commented that:

    "They’re smart enough to be embarrassed by what they’ve done and they should be smart enough to vote on the right side."

John Tomicki is president of the New Jersey Coalition to Preserve and Protect Marriage -- one of the groups opposing marriage for same-sex couples. He watched the press conference, and commented that he hoped the Supreme Court would consider sociological research that:

"... “clearly shows why a conjugal construct of marriage – one man and one woman – is a benefit to society."

It is unlikely that he would be able to find anyone who would disagree with that statement. Children raised by two parents do succeed, on average, better at life than children raised by single parents where poverty is often a major concern. But marriage is not a zero-sum institution. We have not found any evidence that allowing same-sex couples to marry would detract in any way from the marriages of opposite-sex couples. SSM in Massachusetts has been legal for almost a decade without any adverse effects on marriages noted to date. SSM has been available throughout Canada for over 8 years, and it has become accepted in the culture.

Tomicki also said:

"By saying that somehow New Jersey is in the dark ages is disparaging 31 other states that have passed constitutional amendments saying marriage should be one man and one woman." 6,7

Recently, two Democrat and two Republican legislators have publically switched their opinion and said that they would vote to override the governor's veto. However, supporting votes are still short of the two thirds majority in both House and Senate that is required to override the Governor's veto.

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This topic continues in the next essay

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. "NJ judge rules state must allow gay couples to marry, but GOP Gov. Christie plans to appeal," Associated Press, 2013-SEP-27, at: http://www.washingtonpost.com/
  2. Julia Terruso, "Judge: Same-sex couples can marry in N.J.," Philadelphia Inquirer, 2013-SEP-28, at: http://articles.philly.com/
  3. Brian Brown, "Breaking News!" Email from the National Organization for Marriage, received on 2013-SEP-28
  4. David Demirbilek, "Southern Poverty Law Center repeats 'hate group' claim about Family Research Council," Daily Caller, 2012-SEP-13, at: http://dailycaller.com/
  5. Text of the "Marriage equality and religious exemption act," New Jersey Legislature, as introduced 2012-JAN-17, at: http://www.njleg.state.nj.us/ This is a PDF file
  6. Salvador Rizzo, "Christie seeks to delay start date for same-sex marriages," Star Ledger, 2013-SEP-30, at: http://www.nj.com/
  7. Matt Friedman, "N.J. Senate Democrats ask Supreme Court to rule quickly on gay marriage," Star Ledger, 2013-SEP-30, at: http://www.nj.com/

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Site navigation: Home > Homosexuality > Same-sex marriage > SSM Menu > New Jersey > here

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Copyright © 2013 by Ontario Consultants on Religious Tolerance
Originally posted: 2013-SEP-29
Latest update: 2013-OCT-14
Author: B.A. Robinson

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