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A ruling last week against same-sex couples marrying in New Jersey may give impetus to legislative creation of a new status of domestic partnership. Not only did the judge put the matter squarely in the hand of the Legislature, she gave lawmakers a blueprint for the type of civil-status law that would be accorded full faith and credit nationwide. “Although this court has rejected the constitutional arguments advanced by the plaintiffs, the court commends the legislature to carefully examine and consider the expanded rights afforded to same-sex couples in other jurisdictions,” wrote Mercer County Superior Court Judge Linda Feinberg. Feinberg, in a 75-page ruling dismissing a suit by seven gay couples who were denied marriage licenses, found no fundamental right to same-sex marriage under state or federal law — in fact, the federal Defense of Marriage Act eschews the concept — nor any violation of the rights to privacy or equal protection under the New Jersey Constitution. Nevertheless, the ruling, in Lewis v. Harris, MER-L-15-03, could improve the chances of passage of A-3743, a domestic partnership bill introduced last June and supported by New Jersey Gov. James McGreevey. “This ruling, if it does anything, should make it a little bit easier to move [the bill],” says its Assembly sponsor, Loretta Weinberg, D-Bergen. She says she hopes it will come up for a vote in the current lame duck legislative session. But the Lambda Legal Defense and Education Fund, which provided counsel to the plaintiffs, says it will appeal the ruling and may even seek direct certification to the state Supreme Court. “The bottom line here is this case was destined for the New Jersey Supreme Court and that’s where it will end up,” says plaintiffs attorney Lawrence Lustberg of Newark’s Gibbons, Del Deo, Dolan, Griffinger & Vecchione. Lustberg isn’t buoyed by Feinberg’s exhaustive analysis demonstrating that New Jersey would stand alone among the states with a court-created right to same-sex marriage. Feinberg wrote, “While New Jersey may well take the role of national trailblazer when the circumstances for such a bold move are right, the decision to stand alone among the States in recognizing a right belongs to the Legislature. But, where history, common law and the uniform laws of the United States all reach the conclusion that marriage does not extend to same-sex couples, it is entirely reasonable for the New Jersey Legislature to decide that the rights of gay men and lesbians can be protected short of creating the unique right to enter into a same-sex marriage.” Lustberg says that analysis is wrong. “Issues of constitutionality, which is what is raised by this case, are issues for the court,” says Lustberg. “The trial court’s conclusion here that the issues raised here are solely for the Legislature is wrong for just that reason.” On the victorious side, Attorney General Peter Harvey said in a statement, “This is a matter that must be resolved in the Legislature, not in the courts, because it implicates a wide variety of social and economic decisions that have to be thought through and resolved. Health care, distribution of property after death, access to medical records — these are not issues that are appropriately addressed in the judicial forum.” Weinberg’s bill, the “Family Equality Act,” provides a range of rights to gay couples, unmarried heterosexual couples and those in familial relationships like an adult child and an elderly parent. It grants domestic partners inheritance rights, the right to visit a sick partner in the hospital, the right to make burial arrangements for a partner and a waiver of inheritance taxes for the surviving partner. It also would give the Superior Court jurisdiction over termination of domestic partnerships and the division of partners’ property and would require private employers who grant insurance benefits to workers’ heterosexual spouses to give the same benefits to gay partners. Lambda, a New York-based advocacy group, supports enactment of such domestic-partnership laws but doesn’t see them as a substitute. “When you say domestic partnerships, it can mean 1,000 things,” says Lambda counsel David Buckel, co-counsel on the case with Lustberg. “We’re not just in court, we’re in legislatures and city councils around the nation doing whatever we can to strengthen our families,” Buckel says. “Thank goodness for civil unions in the state of Vermont, but that’s separate and unequal — they’re not enough. Right now no gay person in the United States is a full-fledged citizen because unlike other folks, gay people cannot choose to marry the person they love.” The plaintiffs in the suit say the state denies them access to rights accorded married people, such as priority over others to become a court-appointed guardian if a partner becomes mentally incompetent, and intestacy rights to automatically inherit a deceased partner’s estate if there are no parents or children. Other benefits of marriage denied to the plaintiffs are the right to file a wrongful death suit if a partner is killed, the protections and compensation extended to spouses of homicide victims, and the right to bury and control the disposition of the remains of partners, according to the complaint. J. Michael Blake, president of the gay political group New Jersey Stonewall Democrats, says the two-pronged approach is rational. “I think people in the [gay] community would prefer marriage, but we can’t put all our eggs in one basket,” says Blake, an assistant deputy public defender. “I think nobody knows what the final outcome [of the Lambda suit] will be and to only pursue one avenue would be a mistake.” Other gay-marriage cases are proceeding elsewhere. A similar challenge has been argued at the Massachusetts Supreme Court and a ruling is expected soon. Cases over the right to same-sex marriage are pending in courts in Indiana and Arizona. And in 2000 the Vermont Supreme Court issued a decision that led to legislative enactment of the civil union law there. Back in New Jersey, if Weinberg’s bill sees any opposition it’s unlikely to be on ideological grounds, says David Rebovich, a professor of political science at Rider University. Working-class families who view allocation of benefits to gay couples as a threat to their prosperity would get a sympathetic hearing, says Rebovich. But the right-wing groups that traditionally oppose gay rights on moral or religious grounds hold much less influence in New Jersey politics than in other states, he says. “That’s the type of argument that typically does not work here. The economic argument tends to be stronger here. There’s a scarcer pie and when any narrower group in society receives benefits, sometimes the majority complains,” Rebovich says. As for the court challenge, one New Jersey court-watcher says the state was a well-chosen forum. “It’s no mistake that this state was chosen for a test case,” says Robert Williams, a constitutional law professor at Rutgers Law School-Camden. “The sort of privacy and equal protection doctrines that the New Jersey Supreme Court has developed are pretty robust � I think they will get an honest hearing under established lines of precedent that are arguably favorable to them.” Deputy Attorney General Patrick DeAlmeida represented the state.

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