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A New Jersey appeals court has affirmed the state’s right to a phase-in period before it accepts joint returns from same-sex couples under the Civil Union Act. The Appellate Division on Thursday rejected a constitutional challenge by two women who said their 2003 Canadian marriage entitled them to full parity with heterosexual married couples – including the right to file a joint return – as of Oct. 25, 2006. That is the day the state Supreme Court issued Lewis v. Harris,188 N.J. 415, which granted same-sex couples the same rights as heterosexual couples. But the appeals court found that New Jersey’s recognition of the two women’s relationship began the day the civil union law went into effect, Feb. 19 of this year. That’s also the effective date of a directive in the Attorney General’s Formal Opinion 3-2007, granting recognition to same-sex marriages from Canada and some other nations. “Because appellants’ Canadian marriage was not legally recognized by statute in New Jersey as a civil union until February 19, 2007, appellants are being treated no differently than a similarly-situated heterosexual married couple,” the court said in Quarto v. Adams , A-3904-06T1. The Division of Taxation permits joint filing by same-sex couples beginning with 2007 returns, but Roslyn Quarto and Judith Prichason wanted to file a joint return for 2006. When the Division of Taxation did not permit the joint return, they appealed. They argued that Lewisgrants them all the rights and benefits afforded to heterosexual married couples, that the state’s refusal to permit them to file a joint 2006 return violates their equal protection rights and that the delay serves no legitimate public need. The couple sought to file jointly even though it would require them to pay slightly more in taxes than filing separately. One of the plaintiffs earns much less than the other, so her income would be placed in a higher tax bracket as a result of joint filing. Quarto and Prichason said they had no interest in filing amended returns for years prior to 2006. But if the plaintiffs were granted the relief they sought, others might be moved to amend prior tax returns, especially if a financial incentive existed, the appeals court said. “We do not read Lewis v. Harristo require such potential retroactive disruption,” said the opinion by Judge Jack Sabatino, joined by Ariel Rodriguez and Edwin Stern. Stern, in a concurring opinion, said the plaintiffs were denied their equal protection rights by not being permitted to file taxes in the same manner as heterosexuals. But he said the controlling issue is when the plaintiffs obtained their rights under the civil union law, and his colleagues correctly detailed the relevant dates concerning implementation of the Civil Union Act, Stern says. The plaintiffs’ lawyer, Lawrence Lustberg, a cooperating lawyer with the American Civil Liberties Union of New Jersey who is with Gibbons in Newark, could not be reached. Edward Barocas, legal director of the ACLU-New Jersey, says no decision has been made on whether to appeal, but he is displeased with the ruling. “This is yet another example of how separate is never equal, and how the civil union law results in very real discrimination,” Barocas says. “This couple, who was legally married years ago in Canada, wanted to pay their full share of taxes as New Jersey citizens by filing their 2006 taxes jointly, the same as heterosexual couples are required to do. The state refused to accept the additional taxes this couple sought to pay and chose to again treat these couples as less deserving of respect and recognition.”

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