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N.J. Court Gives Gays Marriage Rights; but not the Right to Call It 'Marriage'

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    N.J. court gives gays marriage rights; but not the right to call it marriage By Robert Marus TRENTON, N.J. (ABP) -- The New Jersey Supreme Court ruled Oct.
    Message 1 of 1 , Oct 25, 2006
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      N.J. court gives gays marriage rights; but not the right to call it
      'marriage'

      By Robert Marus

      TRENTON, N.J. (ABP) -- The New Jersey Supreme Court ruled Oct. 25 that
      the state's constitution requires that marriage rights be available to
      same-sex couples on an equal basis with heterosexuals. But the court
      left state legislators to decide whether to refer to the unions by the
      name "marriage" or a different term.

      The decision leaves New Jersey in a situation akin to Vermont's, where
      legislators in 2000 passed the nation's first law legalizing "civil
      unions" for same-sex couples. Vermont's civil unions, which followed a
      similar court decision, offer the same rights and benefits as marriage
      without using the name.

      All seven justices agreed the New Jersey Constitution requires the
      state to extend to gay couples the same rights as married couples.
      However, only three justices said those rights include equal use of
      the term "marriage," while the four-justice majority said use of the
      term is not guaranteed.

      "The state has not articulated any legitimate public need for
      depriving same-sex couples of the host of benefits and privileges"
      that married couples enjoy, wrote Justice Barry Albin, who authored
      the majority's opinion. "There is no rational basis for, on the one
      hand, giving gays and lesbians full civil rights in their status as
      individuals and, on the other, giving them an incomplete set of rights
      when they follow the inclination of their sexual orientation and enter
      into committed same-sex relationships."

      Vermont and Connecticut have civil-union laws that provide identical
      benefits to same-sex couples as married heterosexual couples.
      Massachusetts, following a decision by its highest court, legalized
      same-sex marriage in 2004.

      New Jersey already has a domestic-partnership law that grants to
      same-sex couples some of the rights and responsibilities of married
      heterosexuals. However, Albin noted that the statute does not provide
      gay couples or their children with equal protection of the law in
      several critical areas, such as adoption rights.

      In the latest decision, Lewis v. Harris (No. A-68-05), the New Jersey
      court unanimously agreed that the state constitution's
      equal-protection provision, coupled with the fact that other state
      laws ban discrimination on the basis of sexual orientation, requires a
      remedy for such disparate treatment of same-sex couples.

      The majority determined that such a decision "leaves the legislature
      with two apparent options. The legislature could simply amend the
      marriage statutes to include same-sex couples, or it could create a
      separate statutory structure, such as a civil union, as Connecticut
      and Vermont have done."

      That result would fall short for the plaintiffs -- seven same-sex New
      Jersey couples -- and most of the nation's gay-rights organizations.
      They have argued that granting marriage rights without the term
      marriage creates a "separate-but-equal" structure.

      Albin addressed that argument. "Raised here is the perplexing question
      -- 'what's in a name?' -- and is a name itself of constitutional
      magnitude after the state is required to provide full statutory rights
      and benefits to same-sex couples?" he asked. "We are mindful that in
      the cultural clash over same-sex marriage, the word 'marriage' itself
      -- independent of the rights and benefits of marriage -- has an
      evocative and important meaning to both parties."

      But Albin said the legitimacy that the term "marriage" would bestow on
      gay couples would best be delivered through legislative, rather than
      judicial, action. "The great engine for social change in this country
      has always been the democratic process," he wrote. "Although courts
      can ensure equal treatment, they cannot guarantee social acceptance,
      which must come through the evolving ethos of a maturing society.
      Plaintiffs' quest does not end here. Their next appeal must be to
      their fellow citizens whose voices are heard through their popularly
      elected representatives."

      But Chief Justice Deborah Poritz, in an opinion joined by her two
      fellow dissenters, said the term "marriage" is as integral to the
      rationale cited by the majority as marriage's attendant rights and
      benefits.

      "Labels are used to perpetuate prejudice about differences that, in
      this case, are embedded in the law. By excluding same-sex couples from
      civil marriage, the state declares that it is legitimate to
      differentiate between their commitments and the commitments of
      heterosexual couples," she wrote. "Ultimately, the message is that
      what same-sex couples have is not as important or as significant as
      'real' marriage, that such lesser relationships cannot have the name
      of marriage."

      The ruling is the first major legal victory for gay-rights groups
      since the Massachusetts decision. The highest courts in two other
      states -- New York and Washington -- both recently rejected similar
      lawsuits filed by gay couples.

      Several state laws and constitutional amendments banning same-sex
      marriage have passed by wide margins since 1998, but poll numbers
      since then have indicated a general trend toward wider acceptance of
      gay marriage.

      Eight states have proposals banning gay marriage before voters in the
      Nov. 7 elections. One prominent gay-rights opponent said the New
      Jersey decision should create a backlash that will boost the chances
      of those gay-marriage bans passing.

      "Today's decision should give momentum to the eight states with
      marriage-protection amendments on the November ballot," said Tony
      Perkins, president of the Washington-based Family Research Council, in
      a statement released shortly after the New Jersey ruling. "By
      mandating that the New Jersey legislature enact same-sex 'marriage' or
      civil unions, the court ignores the unique benefits of marriage
      between one man and one woman. Society gives benefits to marriage
      because marriage gives benefits to society."

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