Author Archive: Scott Weingart

What’s next after Windsor?

Today at 11:30 AM, Garden State Equality is hosting a rally at the statehouse. Following that rally, GSE, the ACLU of New Jersey, and Lambda Legal will hold a press conference at which they will discuss their response to yesterday’s landmark U.S. Supreme Court Decision striking down section 3 of the Defense of Marriage Act. Here’s what to expect—or at least, what I would expect.

The road ahead of us

Today, ten years to the day after its landmark decision striking down Texas’s sodomy law in Lawrence v. Texas, the United States Supreme Court has held Section 3 of the Defense of Marriage Act unconstitutional. In an opinion authored by Justice Anthony Kennedy, the court held that the federal government may not refuse to recognize a marriage that is permitted under state law simply because the marriage happens to be between two people of the same sex.

However, the court did not decide a companion case on the constitutionality of California’s proposition 8, and thus did not decide whether states may exclude same-sex couples from marriage.

We have won a major victory. Married same-sex couples in the 13 states-plus-DC that recognize marriage equality now enjoy all of the rights of their opposite-sex married neighbors. But the fight to win marriage equality for all same-sex couples in this country is not over. And New Jersey is likely the next battlefield.

New Jersey does not allow same-sex couples to marry. Although they may not marry, they may enter into civil unions, which afford the same rights and benefits of marriage-under state law, that is. It is not clear whether civil union partners in New Jersey will reap the benefits of this decision as will same-sex couples whose state affords both the rights and the label of “marriage.”

In the Lewis v. Harris decision that led the legislature to pass the civil union law, the New Jersey Supreme Court held that same-sex couples must be afforded the same set of rights and benefits afforded to married couples in New Jersey. Back in 2006, “marriage” was merely a word, and “civil union” was a badge of inferiority. But today, the difference between “marriage” and “civil unions” may also include some of the 1,138 (or more) benefits and burdens federal law conditions on marriage. Arguably, because separate state-law status now means unequal federal-law treatment, New Jersey’s civil union law now runs afoul of the State Supreme Court’s deicison in Lewis. And the possibility that New Jerseyans will be denied a host of substantive federal rights over a simple word represents a compelling argument to politicians in this state to upgrade civil unions to marriage without delay.

The importance of these decisions and of the upcoming fight in New Jersey extends beyond New Jersey’s borders. Someday, hopefully less than ten years from now, the Supreme Court will extend the rationale of Loving v. Virginia, Lawrence v. Texas, and United States v. Windsor to its logical conclusion, and hold that states may not refuse the benefits, the burdens, and the label of marriage to two people who wish to marry simply because they are both male or both female. The Court’s decision to “punt” in the Prop 8 case may have been motivated in part by a fear of getting too far ahead of the country on such a contentious issue. We must lay the foundation for nationwide legal victory with legal and political victories in the states. The road from Lawrence to Windsor wound through chambers in Concord and Providence, courthouses in Des Moines and Hartford, and polling places in Portland and Pullman. The road from today’s decision to marriage equality nationwide will follow a similar route, but through places like Springfield, Salem, and Trenton.

Thoughts on the Mosquera decision

While the legislature undoubtedly made the biggest news of the day by finally passing marriage equality, the New Jersey Supreme Court handed down an important decision of its own this morning. By a narrow 4-3 margin, the court invalidated Gabriela Mosquera’s election to the State Assembly in the 4th district, because Mosquera did not live in the district for a year before election day as required by the state constitution. Nevertheless, the court ruled that the Democratic committee members will get to pick her replacement. Virtually everyone expects them to name the now-qualified Mosquera to fill the seat her disqualification left open, as she was just two months shy of the one year mark in November.

New Jersey election officials haven’t enforced the residency requirement since a federal court declared it unconstitutional and enjoined its enforcement in the 2001 case Robertson v. Bartels. But the federal injunction stops only state election officials from enforcing the requirement; it does not prevent private individuals, including disgruntled, litigation-minded runners-up, from doing so. So after Shelley Lovett lost at the ballot box by over 5,500 votes, she sued in state court seeking to have the election set aside. The case quickly worked its way up to the Supreme Court, which heard arguments late last month. In the meantime, the seat to which voters elected Mosquera in November has remained vacant.

To summarize, the court held:

  1. New Jersey’s requirement that a legislator seeking election in a legislative district at least one year prior to running there does not violate the Fourteenth Amendment’s Equal Protection Clause, either on its face or as applied to Gabriela Mosquera. While Robertson applied “strict scrutiny” to the residency requirement, the court only applied “intermediate scrutiny,” because the rationale for applying strict scrutiny-protecting the fundamental liberty interest in interstate travel-did not apply to a distinction that classifies state residents based on when they last moved within the state.
  2. This rule applies not only prospectively (to future cases), but also retrospectively, so Mosquera’s election was invalid and must be set aside. The default course of action is to apply a rule announced in a case to the facts of that case. That the state was enjoined from enforcing it on its terms does not change things here, because a federal district court’s reasoning is not binding on state courts, which are free to reach their own conclusions about the meaning of ambiguous constitutional provisions.
  3. Mosquera is nevertheless the “incumbent” whose disqualification caused the vacancy, so her party gets to pick the “replacement” according to the familiar statutory process.

The dissent disagrees with the majority’s equal protection analysis, particularly the way it handled facial challenge to the residency requirement, and also argues that the majority should have paid more heed to the consequences of conflicting decisions of the Federal District court in Robertson v. Bartels and its decision. But it directs its strongest criticism at retroactivity. Because the state had not enforced the residency requirement and had represented to candidates that it no longer applied, the majority’s decision effectively “change[s] the rules after the game has ended.” Applying its new rule to this completed election disenfranchises nearly 20,000 voters and violates an “elementary principle of fairness.”

A lot of things may be said about this decision; for lack of time, I’ll note just two.

First, the court at addressed the problem of two conflicting decisions on the constitutionality of the residency requirement by asking the parties to fix it:


The parties should apply to the federal district court or file a petition for a writ of certiorari to the United States Supreme Court to resolve the lingering principled conflict that exists between our declaration of the constitutionality of Article IV, Section 1, Paragraph 2 of the New Jersey Constitution and the federal injunction, as well as the practical effects of the differing conclusions.

I anticipate that the first chapter of any federal court sequel to this decision will begin with the Attorney General or Secretary of State asking the federal District Court to set aside the Robertson injunction. In other words, I do not think this case is bound for the Supreme Court. Mosquera appears to be the only party that clearly has any chance of getting certiorari (Lovett prevailed on federal equal protection issues and any federal questions the state might raise over the conflicting decisions and the Robertson injunction are better dealt with before the federal district court) the state might raise ). But New Jersey’s seat-filling mechanism moves much faster than the U.S. Supreme Court, so if what matters to Mosquera is getting seated, she need not litigate any further.

Second, the court’s opinion casts a cloud of uncertainty over post-election challenges to candidates in the first cycle after redistricting. Fortunately, the statutory time for challenges has passed. But if it hadn’t, someone like Reed Gusciora, who moved from Princeton to Trenton last summer so he could continue to represent the 15th district, would likely have faced a similar challenge to the one against Mosquera. While the court does suggest that it might be more sympathetic to a future candidate “actually affected by reapportionment,” potential candidates deserve to know more definitively where and when they may and may not run for office.

The legislature needs to clear up this cloud by defining a narrow, pre-election route that all post-redistricting, residency-based challenges to a candidate’s eligibility must follow. Currently, New Jersey law (NJSA 19:29-3) permits losing candidates to bring eligibility challenges up to 30 days after an election is over. If Lovett had to bring her challenge before the election, judicial nullfication of 20,000 votes would have been avoided.

Race and Redistricting: A look at the new Congressional map

Last Friday, when he chose the Republican map, Redistricting Commission tiebreaker John Farmer suggested that the new map “honors more completely New Jersey’s diversity.” To say this about a map which targets the only Jewish member of the delegation for elimination (though Congressman Rothman obviously isn’t cooperating with Dean Farmer’s plan) and provides no new meaningful opportunities for minorities elsewhere takes, well, chutzpah. Follow me below the fold as I explain why this map denigrates, rather than honors, New Jersey’s diversity.

Making redistricting more open and democratic

Tomorrow, 13 people will decide the configuration of New Jersey’s 12 congressional districts for the next five election cycles. In reality, of course, the decision rests with just one person: former Attorney General John Farmer, who will likely choose between the final proposals of the six-member Democratic delegation and the six-member Republican delegation. If legislative redistricting is any indication, we’ll know whose map will be selected long before we know what either party’s proposal looks like.

Before the lawmakers actually take a final vote, there will a brief debate over the proposals. This debate is a mere formality. Nobody will be persuaded to change his vote on the plan. The commission won’t adopt or even vote any amendments to make either proposal better. The outcome of the vote at the end of this meaningless debate will surprise no one.

There will be no opportunity for public comment. While the Commission did hold a few meetings before ensconcing themselves in the Heldrich Hotel in New Brunswick to fight out the details of the map, few members of the public attended this meeting. The small crowds were understandable, given that the stakes were exactly zero at the time; the commission had not even proposed a map. Members of the public could offer only general statements, most of which we’ve heard before: Don’t split town A. The map should account for growth in minority group B in this or that part of the state. Districts should be compact. Congressman C is so wonderful; please keep him in my district. Districts should be more competitive.

These early-meeting comments may have found attentive ears and acquiescing nods, but they have doubtless long since been forgotten. Those who managed to put a close ally on the commission can still influence the process. But anyone else who wants to weigh in at this decisive stage must do so either through back channels or through the (old or new) media. Of course, commentary now is not much more useful than commentary at public meetings, unless you know what the Commission is actually up to. Citizens cannot make informed and relevant comments on proposals they have never seen. Again, those who don’t have insider access must rely on rumors and speculation. The Commission does not have to make any proposal public until the decision has already been made.

If just about any other governmental entity in this state enacted a rule or ordinance in such an opaque and secretive manner, the courts would probably strike it down for egregious violations of the state’s Open Public Meetings Act (or Administrative Procedure Act, as the case may be). But the Commission enjoys an exemption from public meetings laws. There’s no good reason for this exemption. Members of the public should have the opportunity to weigh in on real proposals before they’re enacted. A task so important should not be insulated from public comment.

Redistricting would work better when done in the sunshine. At the very least, the legislature should amend the Open Public Meetings Act to cover the congressional and legislative redistricting commissions. Even better, the entire process should be changed so that incumbent and partisan interests don’t control it so much. This way, the result will better reflect what’s best for New Jersey.

Where GSE gets it wrong: Thoughts on Viki Knox, Part II

Last week, I criticized impatient calls for firing homophobic high school teacher Viki Knox as disregarding free speech rights of teachers. Today, I will explain why this approach is a strategical mistake.

Last fall, Rutgers University Freshman Tyler Clementi jumped to his death from the George Washington bridge after his roommate, Dharun Ravi, secretly filmed Clementi having a intimate encounter with another man. Just like it’s doing with Mrs. Knox now, Garden State Equality demanded that Ravi and his friend, Molly Wei, who also viewed the video, be punsihed to the fullest extent of the law. GSE did not escape criticism for its statements; a group of Rutgers students and faculty condemned what it saw as calls for vengeance. Instead, they argued, the Clementi tragedy highlighted the need for broader conversation addressing unacknowledged prejudices in the Rutgers community and in society at large. Instead of joining calls for Ravi and Wei’s punishment, they demanded policy changes at the university, including the establishment of gender-neutral housing, to create a more positive atmosphere for LGBT students. At the time, GSE dismissed them as “radical fringe group.” But last March, Rutgers announced that it would allow gender-neutral housing.

But to compare Garden State Equality’s response to Knox incident with its response to the Clementi tragedy is unfair. GSE’s statements about Ravi and Wei were infrequent and often responsive to media inquiries. Instead of organizing protests to call for the heads of the guilty, they organized town hall meetings to remember Tyler Clementi and to discuss issues of anti-gay bullying in particular and bullying in general. Instead of focusing on what the perpetrators did in the past, they focused on what should be done to prevent similar tragedies in the future. Thanks in large part to GSE’s efforts, New Jersey now has one of the strongest anti-bulling laws in the country. With Knox, on the other hand, the public message has focused solely on punishing the accused.

Garden State Equality has two options in crafting its public message in response to the Viki Knox facebook posts. One approach, the one GSE has taken so far, is to seek retribution against the teacher for expressing her ignorant views. This approach is short-sighted. The better approach is the one they employed in response to the Tyler Clementi tragedy: to use the incident to highlight the importance of school policies that support and affirm LGBT students across the state. This message is superior because it is relevant to all schools, rather than just this school; because it focuses on LGBT students, rather than homophobic teachers; because it avoids needless First Amendment costs; and because it unites, rather than divides, supporters of gay rights.

Where GSE gets it wrong: thoughts on Viki Knox, part I

Note: Since I wrote this diary, reports have surfaced that Viki Knox indeed brought her views into the classroom on several occasions, likely violating the district policies and state law in the process. Worse, she violated a student’s First Amendment rights by kicking the student out of class for wearing a rainbow bracelet.

Viki Knox’s illegal conduct in the classroom raises substantial doubts about her fitness as a teacher. She ought to be fired. At the very least, she should be suspended for a prolonged period of time and must not set foot in another classroom until she understands that she needs to set her personal views aside and follow the laws of New Jersey, the policies of her school district, and the instructions of her superiors.

October, as many Blue Jersey readers know, is LGBT history month. To commemorate the occassion, Union Township High School set up a photo display featuring several famous gay and lesbian celebrities and historical figures.

Yet, this evening, Garden State Equality has organized dozens to protest a meeting of the Union Public School District Board of Education. GSE is not satisfied with school’s affirming message to gay and lesbian students. It wants the district to fire a schoolteacher who responded to the display with homophobic Facebook posts of the sort that one would expect from, say, the Westboro Baptist Church.

Make no mistake, Union Township High School special education teacher Viki Knox’s comments were reprehensible; Ms. Knox calls homosexuality a “perverted spirit” and compares it to cancer and alcoholism. But there are at least two problems with Garden State Equality’s impulsive response to these posts. First, in its hasty reaction to the teacher’s posts, the organization stubbornly refuses to acknowledge the competing values at stake. Second, GSE is doing a disservice to gay and lesbian students at Union Townshsip High School and across the state by passing up more effective responses to this controversy.

The First Amendment gives Viki Knox the right to express her opinions, asinine and offensive as they may be. As I will show below the fold, whether the school district may fire or otherwise discipline her is a close question that will probably turn on facts to be uncovered by investigation.

Lawsuit would be a waste of money for NJ Republicans

Update: And just as I post this rumors of a lawsuit surface. But the purported plaintiffs here are not Republicans, and they’re not racing to the courthouse to file their complaint. Anyone who is interested in the redistricting process and minority participation in politics should read the minority coalition’s letter to the state party chairmen, and not just the headline and three paragraph summary on PNJ. The political gatekeepers and party bosses in the state should read it as well. I’ll discuss the letter in a diary I post in the coming days on how the Voting Rights Act can regulate the election process even after the lines have been drawn.

When it comes to redistricting, the losers often sue. I’m surprised that we’ve heard relatively little so far from Republicans about a possible lawsuit. On Sunday, after the map was adopted, Jay Webber suggested that Republicans might sue to get the new legislative district map thrown out, but wasn’t very definitive about it. As of Monday, Governor Christie said that he had not yet heard of any Republicans planning to sue over the map. Perhaps Republicans are pessimistic about their prospects in litigation. Indeed, they should be, for even in the unlikely event that they win in court, they’re still likely to lose in November.

The weakness of potential Republican legal challenges to the new legislative map was highlighted on Sunday in the redistricting commissioners’ statements before the vote took place. Jay Webber claimed the map was unconstitutional because the 7th district was not contiguous. The crux of Webber’s argument? An uninhabited island, which everyone seems to think falls within the Township of Bordentown, but which Webber suggests might fall partly within Mansfield township. I have not seen any evidence supporting Webber’s assertion. Perhaps some exists somewhere. But, as I said before, everyone seems to think the island is in Bordentown Township. The Census Bureau, which released the maps that were used to do redistricting, thinks so. Bordentown Township, which collects over a quarter million dollars a year in property taxes on the island, thinks so. PSE&G, which pays most of those taxes, thinks so. Mansfield township apparently thinks so, too. Now, I know absolutely nothing about the law of municipal boundaries, and I haven’t seen any documents from the 19th century when these townships were created, but I’ve seen little to convince me that Webber’s argument was anything but a pathetically desperate last-ditch effort to sway Alan Rosenthal.

Last redistricting cycle, Republicans recruited a few black and Latino voters to serve as co-plaintiffs in a challenge under Section 2 of the Voting Rights Act, which I’ve discussed before here. Republicans argued that the Democratic plan, with its emphasis on “coalition” districts, spread black and Latino voters “‘into districts in which they constitute an ineffective minority of voters.'” A three-judge panel of the Federal District Court for New Jersey rejected the Republicans arguments and upheld the map. more…..

Flooding? Blame the poor.

We’re all familiar with religious right whack-job Pat Robertson’s tendency to blame natural disasters like Hurricane Katrina and the Haitian earthquake on things like US abortion policy and 1791-1804 Haitian Revolution (which he characterized as “a pact with the devil”).

Assemblyman Scott Rumana (R-Wayne Township) channeled Pat Robertson in an asinine and offensive April Fool’s Day press release that, sadly, did not appear to be a joke. In his press release, Rumana blamed affordable housing advocates for at least some of the damage caused be recent flooding in his district.

Claims by so-called affordable housing advocates that wealthy municipalities want to build walls that exclude working New Jerseyans, seniors, and people with special needs are completely unfounded.

The only walls the communities in the district I represent want built are flood walls thanks to the flooding that has been made worse due to mandated ‘affordable housing’ overdevelopment and flawed policies like bonus density. I urge these self-proclaimed advocates to come see how devastating their misguided policies have been in communities in the Passaic River Basin.

Rumana’s remarks are not only disgraceful, they’re also misleading. Anyone who blames COAH for overdevelopment in New Jersey is either lying or misinformed.

According to the US Census Bureau’s American Community Survey (running from 2005 to 2009), only 4% of the owner-occupied units in Wayne Township were valued at less than $200,000. More than half were worth more than $500,000. More than 3/4 of renters in the Township paid more $1,000 per month. Granted, housing prices are lower now than they were then, but that isn’t “affordable housing” in any economy.

Wayne Township is overdeveloped not because of anything affordable housing advocates have done, but because local government officials allowed developers to blanket their town with large single family homes and McMansions.