A New Jersey judge put off deciding whether to allow same-sex couples to marry or conclude the state’s civil-union law goes far enough to protect the legal rights of gay couples, as Governor Chris Christie claims.
Superior Court Judge Mary Jacobson heard arguments in Trenton today and said she probably won’t rule until September in light of a U.S. Supreme Court decision on June 26 that struck down a federal law denying benefits to same-sex married couples.
“I don’t think you could expect a decision before September at the earliest,” Jacobson said to a courtroom with dozens of supporters of same-sex marriage. “It’s a very difficult issue.”
The challenge by Garden State Equality and Lambda Legal, which represents supporters of gay marriage, seeks to expand same-sex marriage. Thirteen states and the District of Columbia now allow the practice. Supporters say the Supreme Court ruling striking down the 1996 Defense of Marriage Act gives their quest a new urgency.
Christie, a Republican frequently mentioned as a possible presidential candidate in 2016, says marriage should be between a man and a woman. Last year, he vetoed a same-sex marriage bill, and state Democratic lawmakers are trying to override that action.
In court today, Lambda Legal’s lawyer, Lawrence Lustberg, argued that not allowing same-sex couples to marry will have “devastating” consequences because the federal government denies a wide array of benefits to couples who are not married. He said the question is a matter of equal protection under the law and has moral overtones.
Lustberg cited Martin Luther King Jr.’s “I Have a Dream” speech in urging the judge to act now, and not conclude the time isn’t right, as Jacobson suggested and a lawyer for acting Attorney General John J. Hoffman argued.
“Today, we have a dream, too,” Lustberg said. “That dream is that the content of one’s character, and not their sexual orientation, will determine how they’re treated by society.”
Lustberg repeatedly cited a New Jersey Supreme Court ruling in 2006 that said same-sex couples should have the same rights and benefits as different-sex couples. It gave the Legislature 180 days to act. In response, lawmakers passed the civil-union law in December 2006.
Jacobson asked why the matter shouldn’t be resolved “by the political process, by the democratic process,” rather than by a judge.
“We know that rights and benefits are being distributed unequally and will continue to be distributed unequally,” Lustberg said. “I wish the democratic process would do what’s right.” At times, he said, “judges have to step in.”
Assistant Attorney General Kevin Jespersen argued that same-sex couples and different-sex couples are treated the same under New Jersey law, and state courts have no recourse if the federal government treats them differently.
“Does the court have the power to order the state to remedy something that arises from federal conduct?” Jespersen asked. “We submit the answer is no.”
Jespersen also said the impact of the U.S. Supreme Court ruling is still unsettled, and urged Jacobson to wait, not act.
“We’d be stepping into a very fast-flowing stream where the footing’s very uncertain,” he said.
Lustberg countered that the state, not the federal government, is the prime actor.
“The consequences of the state action is visited upon my clients at a federal level,” he said.
Christie has said he supports a referendum in November, and voters should decide whether to amend the state’s constitution to allow same-sex marriage. Democrats have balked at a statewide vote on a matter that they say is a civil right.
As the court case plays out, Democratic lawmakers are pushing for an override of Christie’s veto. The gay-marriage bill passed 24-16 in the Senate and 42-33 in the Assembly.
An override would require 27 votes in the Senate, where Democrats rule 24-16, and 54 in the Assembly, where they dominate 48-32. Senator Raymond Lesniak, a Democrat from Elizabeth, said in June that lawmakers in his house had begun seeking Republicans who support an override.
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