TRENTON, N.J. — With New Jersey's highest court opening the door to making the state the second in the nation to allow gay marriage, Utah activists on both sides of the issue offered differing opinions on its potential effects.
Mike Derer, Associated Press
Carol McFadden, center, hugs her daughter's partner, Marcye Nicholson-McFadden, as her daughter, Karen Nicholson-McFadden, sits with couple's daughter, Maya, in Newark, N.J., Wednesday.
In a ruling Wednesday that fell short of what either side wanted or feared, the New Jersey Supreme Court declared 4-3 that homosexual couples are entitled to the same rights as heterosexual ones. The justices gave lawmakers 180 days to rewrite the laws.
The ruling is similar to the 1999 high-court ruling in Vermont that led the state to create civil unions, which confer all of the rights and benefits available to married couples under state law.
"Although we cannot find that a fundamental right to same-sex marriage exists in this state, the unequal dispensation of rights and benefits to committed same-sex partners can no longer be tolerated under our state Constitution," Justice Barry T. Albin wrote for the four-member majority.
The court said the state's Legislature "must either amend the marriage statutes to include same-sex couples or create a parallel statutory structure" that gives gays all the privileges and obligations married couples have.
The three dissenters argued that the majority did not go far enough. They demanded full marriage for gays.
In Utah, Bill Duncan, director of the Marriage Law Foundation, said the ruling re-affirms the need for the wording in Utah's constitutional amendment banning same-sex marriage that also bans other similar domestic unions.
"This decision makes it absolutely clear that those arguing that additional language is unecessary are clearly wrong," Duncan said. "It's now pretty obvious that courts are willing to order the (marriage) benefits, even if they're not willing to go all the way."
Mike Thompson, director of Equality Utah, disagreed, calling the New Jersey decision hopeful because it "properly recognizes there is no legal basis to discriminate against same-sex couples."
"There's no legitimate reason to discriminate against these families," he said. "It saddens me that in Utah families don't have the same types of protections that they do in New Jersey."
Gay rights activists had seen New Jersey as a promising place because it is a largely Democratic state in the Northeast. The only state to allow gay marriage is Massachusetts. The only states allowing civil unions are Vermont and Connecticut. New Jersey is also one of just five states that have no law or constitutional amendment expressly banning gay marriage.
If the court had legalized gay marriage outright, the effect could have been more far-reaching, and New Jersey could have become more of a magnet for gay couples than Massachusetts, which has a law barring out-of-state couples from marrying there if their marriages would not be recognized in their home states. New Jersey has no such law.
A clear-cut ruling legalizing gay marriage this close to Election Day could also have been a political bombshell, galvanizing Republicans and the religious right. Eight states have gay-marriage bans on their ballots in November.
New Jersey Republicans, who are in the minority in the Legislature, said they would work to ban same-sex unions by enacting a constitutional amendment.
For gay rights advocates, there was debate over whether the ruling was a victory.
Lara Schwartz, legal director of Human Rights Campaign, said if legislators have to choose between civil unions and marriage, it is a no-lose situation for gay couples. "They get to decide whether it's chocolate or double-chocolate chip," Schwartz said.
Steven Goldstein, executive director of Garden State Equality, New Jersey's main gay rights group, said his organization wants nothing short of marriage. "We get to go from the back of the bus to the middle of the bus," he complained.
The New Jersey high court castigated the treatment homosexuals receive under the law.
"The seeming ordinariness of plaintiffs' lives is belied by the social indignities and economic difficulties that they daily face due to the inferior legal standing of their relationships compared to that of married couples," the court said.
Outside the court, news of the ruling caused confusion, with many of the roughly 100 gay marriage supporters outside asking each other what it meant.
"I'm definitely encouraged," said Chris Lodewyks, one of the plaintiffs who gathered at a Newark law office. But he added, "I'm not sure what this exactly means in terms of marriage."
Another plaintiff, Saundra Toby-Heath, was more effusive: "I feel they were listening and paying attention to us as human beings who wanted to have the same rights."
Garden State Equality, New Jersey's main gay political organization, quickly announced that three lawmakers would introduce a bill in the Legislature to give full marriage rights to gay couples.
"New Jersey is a progressive state and has a tradition of tolerance," said one of the lawmakers, Democratic Assemblyman Reed Gusciora.
GOP Assemblyman Richard Merkt said he would seek to have all seven justices impeached. "Neither the framers of New Jersey's 1947 constitution, nor the voters who ratified it, ever remotely contemplated the possibility of same-sex marriage," Merkt said.
Gay couples in New Jersey can already apply for domestic partnerships under a law passed in 2004. Among other things, domestic partnerships give couples the right to inherit possessions if there is no will and health-care coverage for partners of state employees.
Democratic Gov. Jon S. Corzine supports domestic partnerships, but not gay marriage.
Supporters pushing for full gay marriage have had a two-year losing streak in state courts, including those in New York, Washington state, and both Nebraska and Georgia, where voter-approved bans on gay marriage were reinstated.
They also have suffered at the ballot boxes in 16 states where constitutions have been amended to ban same-sex unions.
Cases similar to the one ruled on Wednesday, which was filed by seven gay New Jersey couples, are pending in California, Connecticut, Iowa and Maryland.