Gains for Jersey Partners

Partnership law expanded; State Supreme Court marriage orals set

The push for LGBT family equality in New Jersey advanced on two fronts during the past week—with a lopsided vote in both houses of the State Legislature in favor of expanding the rights available under the state’s domestic partnership registry, first enacted in 2004, and with the announcement that the State Supreme Court will hear oral arguments on February 15 in a same-sex marriage lawsuit first filed by Lambda Legal in 2002.

The expansion of domestic partner rights allows a surviving partner inheritance rights and control over funeral arrangements equivalent to that of a surviving spouse even if the deceased partner left no will.

Although the Lambda marriage lawsuit was rejected both at the trial court level and in an intermediate level appeal—the trial court in Massachusetts similarly rejected the marriage lawsuit that proved victorious in November 2003 at that state’s Supreme Judicial Court—gay marriage advocates in New Jersey have long awaited the chance to bring the issue before the state’s highest court, which has been positively disposed toward gay rights claims in recent years. In 1999, for example, the court unanimously sided with former Boy Scout James Dale’s claim that the organization could not ban gay members and leaders, a ruling later overturned by the U.S. Supreme Court.

Lambda has backed up its legal strategy with an aggressive ongoing public education effort now carried forward by Garden State Equality, a new LGBT rights group in New Jersey, that has attracted an estimated 7,500 people to 21 town meetings held since 2002. One result of that education effort was the passage under former Governor James McGreevey of a domestic partnership law in 2004 that offered limited benefits including hospital visitation and medical decision-making rights, exemption from state inheritance taxes upon a partner’s death, and the right to register partnerships with the state as well procedures for dissolving them. State government employees were given benefits for lesbian and gay partners equivalent to those provided spouses, and county and municipal governments now have the option to offer their workers those same benefits.

Several trial courts in New Jersey have modestly expanded the specific benefits under the 2004 law in technical rulings that found the legislation to be permissive rather than strictly bound by the rights itemized.

The legislation passed this week, which Democratic Acting Governor Richard J. Codey has said he will sign before handing the reigns of state government over to Democratic U.S. Senator Jon Corzine next week, was hailed by Garden State Equality as much for the breadth of support it received as for the additional benefits it provides. The 2004 law enjoyed a 23 to 9 majority in the Senate, but only a 41 to 38 margin in the Assembly. The amendments this week easily passed both houses—by a vote of 67 to 6 in the Assembly and 39 to 0 in the Senate.

In comments to Gay City News, Steven Goldstein, chair of Garden State Equality, noted that the wide margins represented the greatest ever achieved by a gay rights measure in any state legislature in America. At the same time, he was careful to emphasize that LGBT advocates in New Jersey are not prepared to settle for anything less than full marriage equality.

“Do I believe that the rights gotten [in the amendment] are among the most important we need?” he asked. “Sure.” Goldstein hastened to add that with 10 partnership rights, benefits, and obligations now specified in New Jersey law, gay and lesbian couples still enjoy less than one percent of the 1,049 individual attributes that Congress’ General Accounting Office identified as automatic under marriage.

“At that pace, we will get full rights in 100 years,” he said. “We can get this all done at once with marriage equality. It’s demeaning to have to beg for these incremental steps.”

Goldstein said that the attitude in Trenton toward expanding the partnership law was enhanced dramatically by the recent, highly publicized refusal of the Ocean County Board of Freeholders to extend benefits to Lieutenant Laurel Hester, a 24-year veteran police officer with the county prosecutor’s office who is dying of cancer. This past October, Hester personally asked the Board for such benefits, which the county can extend under the 2004 law, so that her domestic partner, Stacie Andree, could have the same pension rights that surviving spouses of county employees enjoy. Despite widespread protests and public condemnation of the freeholders—some of whom cited the “sanctity of marriage” as a defense—Ocean County has refused to budge. Several other counties, however, have since acted to extend domestic partner benefits to their employees.

“The Hester case was a real factor,” Goldstein said. “It was mentioned by every legislator I talked to you.”

Goldstein said he could not offer any specific assessment of how the growing political consensus around expanded domestic partnership rights might affect the State Supreme Court deliberations on the Lambda lawsuit, but said, “It is hard to find a lawyer in New Jersey that thinks the case has less than a 50 percent chance of success.”

Lambda first filed its marriage lawsuit, on behalf of seven gay and lesbian couples, in June 2002. Its case, argued solely under the New Jersey Constitution to insulate any final decision from review by the U.S. Supreme Court, is based on that document’s provision for equal protection under the law and the individual’s right to privacy—which courts there have found to include the right to marry and Lambda argues logically must include the right to marry the person of one’s choice.

David Buckel, Lambda’s Marriage Project director and lead attorney on the New Jersey case, said that the latest brief from the state attorney general, filed in preparation for the February 15 oral argument, has dramatically shifted the focus toward the argument that only the State Legislature can change the definition of marriage in New Jersey. In the introduction of its latest 71-page brief, the state asserts that gay marriage cannot come about “by judicial fiat,” that “the power to define marriage rests with the Legislature, the branch of government best equipped to express the judgment of the people on controversial social questions.”

“The state has the way the democratic system works backwards,” Buckel said. “There are checks and balances so no branch of government is out of line. The Court puts checks on the Legislature. It’s the job of the courts is to see if the current marriage law is constitutional.”

He acknowledged, however, that the state’s position is precisely the way the intermediate appeals court saw the issue.

“The appellate court was dead wrong, of course,” Buckel said. “But, it’s a very familiar argument and part of a larger movement to attack courts because one side doesn’t like the outcomes we’re seeing. In any civil rights struggle, courts initially say the issue does not belong to them. But, once plaintiffs begin to be seen as the human beings they are, that begins to change. The [2003 Massachusetts] Goodridge decision was the key that began that change.”

In emphasizing the importance of judges seeing the human face of the marriage issue, Buckel noted the death of one of the 14 marriage plaintiffs this past September—Marilyn Maneely, who with her partner Diane Marini, was part of the effort to win marriage rights since the start of the case in 2002. Maneely died of Lou Gehrig’s Disease before the couple was able to marry.

“People ask why the courts seem to be ahead on this issue,” Buckel said. “It is their job to scrutinize the affidavits that reveal the lives of real couples. It starts to become more clear because information begins to flow better. We become seen more as human beings.”

Goldstein also mentioned a human story that helps place the urgency of the issue in context. When one partner in a lesbian couple in Camden was hospitalized with serious complications from pneumonia, the facility’s officials denied decision-making rights to her legal domestic partner—despite the statute’s clear language—until a blood relative in Maryland was reached by phone to endorse that partner’s authority.

“Marriage is the only currency that the world will universally accept,” Goldstein said.

Buckel will go up against attorneys for the state at the New Jersey Supreme Court at 10 a.m. on February 15 in arguments scheduled to last one hour. The court has no legal time limit for making its decision.

David Buckel, who directs Lambda Legal’s Marriage Project, will go up against attorneys for the state of New Jersey at the Supreme Court in Trenton on February 15.

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