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New Jersey Gov. James McGreevey’s gay-friendly administration met a head-on challenge last week, deciding how to answer a lawsuit charging that local registrars violated same-sex couples’ rights by denying them marriage licenses. Some members of the governor’s inner circle believe that the litigation may have an inimical effect on reform efforts signaled during his campaign — namely, creation of a domestic-partnership status with many of the attributes of marriage but without its religious significance. “There is concern that the lawsuit may stall domestic partnership legislation [and] may provoke a reaction,” such as impetus for a statute explicitly outlawing same-sex marriage, says an adviser to the governor on gay and lesbian issues. “I would have preferred that they didn’t file the lawsuit at this time.” Such a counterstrike has precedent. Voters in Hawaii and Alaska amended their constitutions to prohibit same-sex marriage when it appeared that their respective supreme courts were on the verge of ruling them legal. On the other hand, New Jersey could go the route of Vermont, which created “civil union” status two years ago after its state Supreme Court found a prohibition on same-sex marriages unconstitutional. The court, stopping short of authorizing such marriage, ordered the Legislature to fashion a remedy. Spokesmen for McGreevey and Attorney General David Samson decline to comment on the suit since they have not been formally served. But McGreevey advisers, who have been aware of the possibility of the suit for some time, say there are negatives associated with defending the current marriage law or conceding the law’s unconstitutionality as applied. A more likely course is to buy time for a legislative solution. The nonpartisan Office of Legislative Services is drafting such legislation, to be sponsored by Assemblywoman Loretta Weinberg, D-Bergen. Having such a law on the books, or even in the pipeline, could be grounds to defer challenge to the state’s general marriage statute or render the challenge moot. The deferment tack would avoid alienating the gay and lesbian community while also not offending other constituents who oppose same-sex marriage. Still, a gauntlet has clearly been thrown. The suit, Lewis v. Harris, filed last Wednesday in Hudson County by the Lambda Legal Defense and Education Fund, seeks an injunction requiring local and state officials to grant marriage licenses and to recognize the marriages as legal. The plaintiffs, who live with their partners, visited the registrars of vital statistics within their towns and requested applications for marriage licenses. All were turned away, being told that same-sex marriages are not allowed. The general marriage statute, Title 37, does not expressly prohibit same-sex marriage but routinely refers to “man” and “woman” and “bride” and “groom.” Lambda senior staff attorney David Buckel framed the suit as a challenge based on New Jersey’s Constitution. In fact, the state was chosen as a venue because the New Jersey Supreme Court has been wont to give state constitutional rights, such as privacy and equal protection, more expansive reading than their federal counterparts. New Jersey is “one of the states where the text of the Constitution really means what it says,” says Buckel. “The [court] has made it clear it means what it says.” Buckel says the statute violates Article 1, Paragraph 1 of the state Constitution, which provides, “All persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness.” Buckel says that the prohibition on same-sex marriage denies homosexuals priority to be court-appointed guardians for a partner who is mentally incompetent; intestacy rights in a deceased partner’s estate; standing to sue for wrongful death when a partner is killed; protections and compensation offered if a partner is the victim of a homicide; and the right to control the disposition of the remains of a partner after a death. Buckel says creating domestic partnerships or civil unions doesn’t go far enough. “We want the marriage license,” he says, arguing that the Vermont civil unions don’t go far enough. “Telling people you’re ‘civilly unionized’ makes you a second-class citizen,” he says. “And once you leave Vermont, you don’t know what happens.” Litigation in other states will determine whether Vermont civil unions are entitled to full faith and credit in such areas as child custody, child support, inheritance and power of attorney. Buckel acknowledges that not even a marriage license guarantees a same-sex marriage will be recognized in another state. In 1997, President Clinton signed the Defense of Marriage Act, which specifically defines a marriage as a union between a man and a woman and which specifically allows states to not recognize same-sex marriages. Robert Williams, a professor at Rutgers Law School-Camden who monitors the state supreme court, says it is logical that Lambda chose to file its suit in New Jersey. “This is going to get a fair hearing in this court and a thoughtful hearing that you wouldn’t get in a lot of other states,” says Williams. The court in previous years has been granting more rights to gay and lesbian couples, including the right to adopt a child and the right to visitation if the couple breaks up, he says. “The argument will be, ‘What is the state’s argument to support this discrimination,’ ” he says. “ There is an expansive equal protection view that you sometimes see in this court.” The suit was filed in Hudson County because the lead plaintiffs, Mark Lewis and Dennis Winslow, live in Union City and sought a marriage license there. Named as defendants are Gwendolyn Harris, the commissioner of the state Department of Human Services; Donald Lipira, the state registrar of vital statistics; and the seven local registrars.

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