Legislation to codify the right to same-sex marriage in New Jersey has been derailed by disagreement over a provision that would allow clergy to refuse to perform the rite on religious grounds.
The sponsors of the measure, which was to have been voted on Monday by the Senate Judiciary Committee, say the exemption does no more than reflect existing First Amendment law.
But other supporters of gay marriage say the exemption opens the door for wider ones that could be used to undermine marriage equality.
The disputed bill, S-3109, introduced Dec. 12 by Sens. Loretta Weinberg, D-Bergen, and Raymond Lesniak, D-Union, was nearly identical to S-1, passed by the Legislature but vetoed by Gov. Chris Christie in February 2012.
Like the earlier bill, S-3109 contains language recognizing the First Amendment rights of churches and clergy to refuse to perform same-sex marriage if it violates their beliefs.
Unlike the vetoed bill, however, S-3109 makes clear that the exemption does not cover places of public accommodation, such as a hall rented out for heterosexual weddings.
A statement issued by Weinberg said they decided to pull the bill “for now” after conferring with Lambda Legal.
“The issue is still new and legally complex, and we want to be able to fully understand all the potential legal ramifications of our efforts as we work to reach our goal of bringing marriage equality firmly and permanently into our laws,” Weinberg stated.
Same-sex marriage began in New Jersey on Oct. 21, the result of the Sept. 27 decision by Mercer County Superior Court Judge Mary Jacobson in Garden State Equality v. Dow.
Jacobson held that New Jersey must permit same-sex marriages because partners in civil unions were being denied federal benefits in violation of the equal protection clause of the state Constitution.
The New Jersey Supreme Court agreed to a direct review of her decision but on Oct. 18 refused to stay it. Gov. Chris Christie, who had opposed Jacobson’s ruling, then dropped his appeal.
Since then, same-sex marriage supporters have been wrestling with the issue of whether legislation is needed to bolster the right.
Lesniak says he believes that embodiment in a statute would guard against reversal if the state Supreme Court becomes more conservative.
He says he hoped doubters would be won over by the public accommodation language added to S-1.
He believes legislation is necessary to make marriage equality “the law of the land,” but says the bill was pulled due to “a difference of opinion within the family.”
Lambda Legal, the ACLU-NJ and Garden State Equality—which helped win this year’s court ruling allowing same-sex marriage—oppose the current bill, as do two gay assemblymen, Reed Gusciora, D-Mercer, and Timothy Eustace, D-Bergen.
Gusciora says the religious exemption was put in the prior bill to assure conservative Democrats who were “concerned about forcing the Catholic Church to marry gays.” But that bill was vetoed, and the situation has changed with Jacobson’s decision, he says.
He does not see the need to codify the exemption, already part of First Amendment case law, or even the right to same-sex marriage because he does not believe a court would undo it, as hundreds of couples are now married. According to the Department of Health, 925 couples had wed as of Dec. 13.
“I would like to talk to the person that really thinks there is a Supreme Court down the road that would undo this,” says Gusciora.
He notes that legislation is no guarantee of permanence because laws can be undone by future legislators.
In Gusciora’s view, the religious exemption opens the doors to conservatives saying they want one for conscientious objectors and threatens “a whole host of headaches that don’t need to be happening.”
Lambda Legal attorney Hayley Gorenberg, who litigated the marriage-equality case, is concerned the exemption could create a legal loophole to deny same-sex marriage rights or at least force people into court to defend them.
Gorenberg does see a use for a bill that would clarify logistics such as what happens with civil unions.
On Monday, Gusciora and Eustace introduced a bill that would do just that, A-4566. No new civil unions would be allowed while partners already in one could get married without paying another fee or going through the usual 72-hour waiting period, and the marriages would date back to the time of the civil union.
The bill also grants recognition to same-sex marriages entered elsewhere.
Gusciora does not expect A-4566 to pass this session but calls it “a starting point for next year.”
Garden State Equality Executive Director Troy Stevenson emphasizes there is “no crisis or conflict” with Weinberg or Lesniak. “We just have to make sure that we get it right.”
“The prudent thing is to take a step back and try to get everybody moving in the same direction,” says Lesniak. “We fought the good fight and won a substantial victory, but want to make that victory more lasting.”
Sen. Michael Doherty, R-Morris, a same-sex marriage opponent, calls it “pretty amazing” that the bill was pulled over the religious exemption and adds, “it certainly looks like the folks that first said ‘we just want the government to leave us alone’ are turning the tables and are now using the government to force people to take part in activities that they totally disagree with.”