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Marriage Equality - We're going back to court

by: Rosi Efthim

Thu Jan 07, 2010 at 04:54:11 PM EST



Live blog & tally of the Senate vote.
Snapshots and vignettes from an overflow room.
LIVE from the Gallery

It boggles the mind that the New Jersey Senate could vote down - and by wide margin - a bill recognizing the civil rights of its citizens. Astonishing, too, is that this could happen with supporters by the hundreds - and maybe thousands today - all taking the day off to participate in the proceedings and make their opinions heard. But today's vote is not a surprise; the writing's been on the wall, in blood, for days.

But there is no giving up. All day long I've been asking people whether this finishes it for them. It does not. The movement is resilient. In a few minutes, as soon as everybody gets over there, there is a news conference. Here are Steven Goldstein's remarks, prepared last night, and embargoed to Blue Jersey until now.

Steven Goldstein:

With today's vote in the state Senate, the New Jersey legislature defaulted on its constitutional obligation to provide same-sex couples in New Jersey equal protection, as unanimously mandated by the New Jersey Supreme Court in 2006.  That's why we at Garden State Equality are here with our partner Lambda Legal, which has an extraordinary track record of advancing LGBT civil rights in the courts.

Now our organizations will announce major news.  Our side is going back to court to win marriage equality.  

We'll hear from Lambda Legal in a moment.   Let's be clear about what this news means.  We are not waiting out the term of any new Administration to bring equality to same-sex couples in our state.  

In 2006, the New Jersey Supreme Court told the legislature it could enact marriage or another structure that provides the equal protection of marriage.  But the civil union law failed to do that.   Too often, civil union couples too often cannot visit loved ones in hospitals, make medical decisions for their partners or receive equal health benefits from employers.   Hospitals and employers have treated civil union couples differently because they've been labeled differently.   Children have been treated differently at school because their families are labeled differently.  

In recent months, including today and at the Senate Judiciary Committee hearing in December, New Jersey legislators publicly recognized these failures.  They publicly acknowledged that the civil union law has not provided equal protection.  That's important.  New Jersey legislators themselves said it.  Our opponents in the legislature said it.

More after the jump.

Rosi Efthim :: Marriage Equality - We're going back to court
In other words, though we didn't achieve our final victory today, we're better positioned than we were a few months ago to win marriage equality.  So if you're wondering how we feel, it's complicated.   On the one hand, we resent, more than you can imagine, remaining second-class citizens a bit longer.  On the other hand, the ball has moved forward.  The public record for the courts is mighty, and we're closer than ever to winning.

In 2006, New Jersey enacted an experiment called civil union.  In 2010, New Jersey has a mountain of proof that the experiment has failed.  

Now let's talk about what happened politically.    

Things didn't go our way in the legislature because of one factor:  Governor Corzine lost reelection.  

After his win in November, Governor-elect Christie persuaded a number of legislators to reverse their support of the bill.   Before the election, nearly every neutral observer in New Jersey thought marriage equality was certain to become law in lame duck.  It became the zeitgeist in Trenton, with good reason.  In contrast to today's outcome, before the election we had votes to spare in the Senate, including from a number of Republicans.

But the election changed everything and our national opponents changed nothing.  They didn't do much or spend much in New Jersey.   As you saw from our thousands of members at the State House these past few weeks who symbolized the massiveness of our campaign, we overwhelmed our opponents on every front - but one.   Our opponents had the Governor-elect on their side, and that's all they needed to have.   It's ironic given that marriage equality wasn't even an issue in the election, and that the candidates who favored marriage equality together won a majority.

All this said, we extend to Governor-elect Christie an outstretched hand.   He will be the Governor of all of us.   We ask him to continue the tradition of his Republican predecessors, Christie Whitman and Tom Kean, who always kept an open door to the LGBT community.   And though we differ with the Governor-elect on marriage equality, we also seek to explore with him and his Administration the issues on which we may have agreement and can work together.  

No political party should write off any constituency.  And no party should take any constituency for granted either.   Our fundamental right to equality should never have been left to sudden death overtime by the party to which the LGBT community and our allies have been unstintingly loyal and have given so much.  

To be clear, we will continue to support those who support us.   Over the past five-and-a-half years, the separate Garden State Equality political committee has provided thousands of campaign volunteers and raised hundreds of thousands of dollars for supportive candidates through contributions to the organization, or through contributions from individuals directly to candidates.

Of course, when we exceed politicians' expectations in ways they like, we never hear, you're going too far, your fervor is too much.  That double standard, which other minority communities have heard in their own fights for equality, hurts deeply.   And it hurts everyone who stands for equality, including supporters in the majority.

Now there will be a sustained response not only from the LGBT community, but also from straight progressive voters who have been our equal partners.  Marriage equality stopped being just a gay issue long ago.

To those who let us all down, here's our policy:  Don't ask, don't expect.   You can't take progressives' money and volunteers with one hand, slap us in the face with the other, and then act astonished when we declare our independence.   The marketplace of democracy runs along a two-way street.    

Members and friends, today was not an outcome lost, but rather a juncture in an otherwise glorious road to justice.   Since Garden State Equality's founding in 2004, New Jersey has enacted 210 LGBT civil rights laws at the state, county and local levels, a national record.  We have 64,000 members - LGBT and straight alike - who have improved the lives of millions.   A watchdog organization, eQualityGiving.com, just ranked New Jersey #1 in America for LGBT rights, tied with three other states, and we haven't even won marriage equality yet.  

But we will soon.  Cesar Chavez said it best.  You cannot uneducate the person who has learned to read.  You cannot humiliate the people who feel pride.  You cannot oppress the people who are not afraid anymore.  We have seen the future, and the future is ours.

Before I introduce our colleagues from Lambda Legal, some thanks are in order.  Thank you to all our Senate sponsors, including prime sponsors Loretta Weinberg and Raymond Lesniak.  We appreciate Loretta and Raymond beyond measure for their indefatigable leadership, and extend to them our love.   We thank Senators Bill Baroni and Nia Gill - unwavering voices for justice at our committee hearing.   We thank all our Assembly sponsors, including prime sponsors Reed Gusciora, Valerie Vainieri Huttle, John McKeon and Mila Jasey.   We thank our Governor Corzine and Speaker Roberts for their support.  And let me say this about Governor Dick Codey:  He's been an extraordinary champion of equality who kept his word about a Senate vote.  Every progressive in New Jersey should view Governor Codey as a hero.

We thank the National Gay and Lesbian Task Force, the Human Rights Campaign, Gill Action, the Civil Marriage Collaborative, the Arcus Foundation and Freedom to Marry, which have given us resources and wisdom.  We thank our partners at the state level, including the ACLU of New Jersey, BlueWave, Democracy for America, New Jersey Citizen Action, New Jersey Stonewall Democrats and the state's progressive voice on the web, Blue Jersey, to which we owe so much.  

We thank our spectacular field staff who joined us from across the country.   We thank our executive committee, board, staff and donors who make Garden State Equality possible.  We thank the New Jersey Lesbian and Gay Coalition for its decades of groundwork.   We thank all the supportive staff in the legislature and executive branch.   We especially thank our thousands of volunteers - the stars of Garden State Equality - who rallied at the State House and worked in our offices and in the field throughout the year.  And if I may, I thank my partner Daniel and all the loved ones of our staff and volunteers who have supported us and sacrificed so much.

Most of all, we thank our colleagues at Lambda Legal, without whom our march toward equality would never have gotten this far.  We're thrilled to reunite with our partner Lambda Legal in the next stage of the battle.  Please welcome Leslie Gabel-Brett, Lambda Legal's director of education and public affairs.

 

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On behalf of both Blue Jersey & DFA-NJ (4.00 / 7)
Your thanks are gracious, Steven, but you should know how proud we are to be working alongside Garden State Equality on this, and especially how proud of you and of senators Loretta Weinberg and Ray Lesniak we are.

It's our privilege, and we're not going anywhere either.  

It's not a particularly snappy signature, but here's what I think we need in the next NJ Democratic State Chair.  


Yes, All The Legal Avenues Must Be Pursued.... (0.00 / 0)
....and Lambda is THE national leader n that arena......having said that, we must also understand that the judges DO read the newspapers and watch TV and, I daresay, talk to their friends and families and even surf the web.  They do not make their rules in some kind of intellectual/moral vacuum (despite the ideal of justice being "blind").

I still maintain that an all out campaign of public education and consciousness raising and politicking needs to be pursued....and that it should include ties to the whole of the progressive agenda.

Marriage equality and clean air (and add whatever other progressive agenda item you wish in that space) go together.

Yes, most New Jerseyans don't mind if same sex couples marry, we are in the majority in that sense...but we have to face the fact that among those that DO mind they feel it very strongly.   I contend that those feeings arise out of ignorance and fear....out of bigotry and prejudice.    I simply don't buy that all the Senators voting against, or worse yet not having the balls to vote at all are voting their "conscience".....they are doing what they believe is most POLITICALLY expedient....and in my book that makes them the lowest of the low.

Everything Steven says in his above remarks is true and I support him and GSE in their agenda.   So, yes indeed....let's take this to court.....but let's also engage a full court press on the PR and the polictical/electoral levels and let's do it in a way that unights and strengthens the WHOLE of the progressive agenda.

We really become an unstoppable force when we are united.


there have been a lot of developments... (4.00 / 2)
...in jurisprudence of same-sex marriage since the state supreme court punted in '05. The last four state courts to overturn bans on gay marriage applied greater level of scrutiny than mere rational basis, because they ruled that gay people were a "suspect" or "quasi-suspect" class. I don't think that issue was argued in Lewis v. Harris, and it certainly wasn't considered in any of the opinions. It's much harder for a statute to withstand elevated levels of scrutiny; indeed many constitutional lawyers will tell you only half-jokingly that strict scrutiny is "strict in theory, but fatal in fact."

[ Parent ]
Three-tier is probably not relevant in NJ (4.00 / 1)
As David Buckle made clear for Lewis v. Harris, when Equal Protection is involved, NJ Courts apply balancing tests, so the question is whether a separate and unequal system outweighs, um, I don't know how Christie administration will defend the case, traditionally defined marriage perhaps?

Unless Lambda Legal decides to go with Due Process.


[ Parent ]
My prediction (4.00 / 1)
I posted this comment before the vote was taken (under a different username, of course) on another website:

My prediction is ME fails in the legislature. The NJ Supreme Court eventually rules "separate but equal" cannot stand and orders marriage licenses issued to gay couples.

When some obscure municipal official in Hunterdon County refuses to carry out their duty to issue a license they will be joined by Steve Lonegan, Michael Doherty and Michael Illions on the steps of town hall where they will try to block the entrance to a gay couple getting their license.

A Republican Governor, Chris Christie, will act swiftly to mobilize the State Police and put the State Militia on stand-by alert. New Jersey Attorney General Paula Dow will travel to the town hall, accompanied by a gay couple, and demand the license be issued. When the town official refuses they are taken into custody along with The Three Stooges.

A few day later, after Lonegan supporters make accusations of police brutality, Assembly Minority Leader Alex DeCroce will offer a resolution condemning Paula Dow's handling of the affair and offer an apology. The resolution will be defeated by an overwhelming bipartisan vote.


http://christiegonewild.blogsp...


Another Factor Re The Litigation Route ... (0.00 / 0)
....may be that, by the time these cases wend their way through the system and reach the state supreme court, Christie may have put on two or three "judges" amenable to his agendas.

My sense is that smart lawyers can rationalize and argue just about any result they want and make it sound quite legally coherent......but all they're really doing is serving their own values.    

That's why I laugh just abou every time I hear Republicans talk about "strict construction" as their bases for legal judgment.    It's all contingent on the premise that their own "construction" of what the "founders" shared their own values and agendas.

On the other hand, the existing courts may act on this quickly and favorable enough to avoid the ideological fix that Christie's appointees would apply.....and once these rights are given it would really be hard to take them back......but, even then, the opposition would raise unholy hell and try.

Again, ultimately, this will all come down to consciousness raising and getting people to See for them selves that they have nothing to fear from folks having equal rights.......and eventually, that in fact supporting equal human rights is an act of lobing common human decency that enriches all of our lives whatever our orientation.......

And, now I'll leave y'all alone for a week or so as I've taken up too much space here already........hopefully some of made some sense to a few of you.  :-)


I'm guessing LL suspects it can win (4.00 / 1)
or they wouldn't have brought it.

I have a little trouble seeing the path, though: all four justices in the majority (for civil unions, not marriage) remain on the court while only one of the three in the minority (pro marriage) remains. There are two Corzine appointees whose position we don't know (CJ Rabner and J Hoens). Though not sure that appointing governor means too much, the only remaining pro-marriage justice was appointed by Gov Whitman, and three of the four civil unioners was appointed by McGreevey.

Christie appointing new justices probably won't make a bid difference, only two justices' terms expire during his next four years, and they're both civil unioners.


[ Parent ]
From Your Keyboard To God's Ears! Thanks! n/t (0.00 / 0)


[ Parent ]
what about mandatory retirements and promotions? (0.00 / 0)
Aren't there some justices due to retire in 2010 and isn't one up for a federal circuit court judgeship?

Not being a lawyer, I don't see how a legal challenge of civil unions can win as it seems like the opposition will be able to argue that the deficiency is in the enforcement of the law and not necessarily in the law itself.

The argument that words matter should have been powerful enough from a legislative perspective, but that would have required a functioning democracy and Democratic Party.  I am not sure if it is enough to pass judicial muster.

Also, how long will it take to get heard and decided on by the State Supreme Court?  Does it have to go through the same path as Lewis or will it be able to go straight back to the SSC immediately?

The fact of the matter is that Reed Gusciora should have never allowed the civil union law to get past the AJC in 2007.  Had he kept it bottled up there and if there were not enough votes for marriage equality legislation, the legislature could have punted the issue back to the courts, which would have had no choice but to provide the remedy themselves and rule for full marriage equality.

I hope that there is someone out there who can help find a reason to feel positive about this.  It would be a great birthday present.


[ Parent ]
Good points, especially about Gusciora (0.00 / 0)
Just as a disclaimer I'm getting all my info from Wikipedia, which has a lovely summary of the justices: http://en.wikipedia.org/wiki/N...

Anyway, the only mandatory retirements in the next 10 years are Long (pro-marriage) and Wallace (civil unions), both in 2012. Hopefully the Court will be able to hear arguments before March 2012 when Long has to retire.

With respect to Gusciora preventing the Legislature from enacting civil unions, that's a really interesting point. It's true, the Court gave the Legislature 180 days to do it, and if they had simply refused, it almost certainly would have brought in marriage equality. As the Court noted, courts can't affirmatively create laws (civil unions), they can only strike unconstitutional laws (like the gender restrictions). So the Court could not have created civil unions and without the Legislature's compliance, it would have been forced to bring in marriage equality. However, if Gusciora voted against civil unions, I think the Court would know something fishy was up and might not appreciate that, though I doubt it would go back on its opinion's demand for equality.

In terms of timeline, unfortunately it has to go to two courts (Superior Court, then Appellate Division), so it very well could take more than 2 1/2 years, though I doubt it, given that most of the heavy lifting already has been done in the original case.

Bottom line, even if we keep Justice Long and get Corzine's two appointees, we still need to convince at least one of the original majority that civil unions is inadequate. That is something I am somewhat hesitant to expect.

The original opinion offers both hope and despair on this issue. Some quotes from the majority opinion:

They already know the basic arguments that will be raised; it doesn't reject them conclusively but it doesn't sound so good:
"Plaintiffs argue that even equal social and financial benefits would not make them whole unless they are allowed to call their committed relationships by the name of marriage. They maintain that a parallel legal structure, called by a name other than marriage, which provides the social and financial benefits they have sought, would be a separate-but-equal classification that offends Article I, Paragraph 1. From plaintiffs' standpoint, the title of marriage is an intangible right, without which they are consigned to second-class citizenship. ... Conversely, the State asserts that it has a substantial interest in preserving the historically and almost universally accepted definition of marriage as the union of a man and a woman. For the State, if the age-old definition of marriage is to be discarded, such change must come from the crucible of the democratic process. The State submits that plaintiffs seek by judicial decree 'a fundamental change in the meaning of marriage itself,' when '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.'
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? 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. Under our equal protection jurisprudence, however, plaintiffs' claimed right to the name of marriage is surely not the same now that equal rights and benefits must be conferred on committed same-sex couples.

There will also be significant deference to the Legislature's choice:
"We do not know how the Legislature will proceed to remedy the equal pro tection disparities that currently exist in our statutory scheme. The Legislature is free to break from the historical traditions that have limited the definition of marriage to heterosexual couples or to frame a civil union style structure, as Vermont and Connecticut have done. Whatever path the Legislature takes, our starting point must be to presume the constitutionality of legislation. We will give, as we must, deference to any legislative enactment unless it is unmistakably shown to run afoul of the Constitution."

However, there may be some openness to the argument that civil unions, now that they have been tried, have been shown to be actually tangibly unequal (and not just morally and symbolically so). It almost seems like they invited us to come back if the Legislature did create civil unions:
"Because this State has no experience with a civil union construct that provides equal rights and benefits to same-sex couples, we will not speculate that identical schemes called by different names would create a distinction that would offend Article I, Paragraph 1. [[i.e. come back later and we'll answer but we'll not speculate now]] We will not presume that a difference in name alone is of constitutional magnitude."

Ultimately, though it's couched in suspicious tones, the Court seems open to going back and at least looking at the issue again in the light of the experience we've had:
"Despite the extraordinary remedy crafted in this opinion extending equal rights to same-sex couples, our dissenting colleagues are willing to part ways from traditional principles of judicial restraint to reach a constitutional issue that is not before us. Before the Legislature has been given the opportunity to act, the dissenters are willing to substitute their judicial definition of marriage for the statutory definition, for the definition that has reigned for centuries, for the definition that is accepted in forty-nine states and in the vast majority of countries in the world. Although we do not know whether the Legislature will choose the option of a civil union statute, the dissenters presume in advance that our legislators cannot give any reason to justify retaining the definition of marriage solely for opposite sex couples. A proper respect for a coordinate branch of government counsels that we defer until it has spoken. [[inference: once it's spoken we stop deferring and see whether its reasons are actually adequate]] Unlike our colleagues who are prepared immediately to overthrow the long established definition of marriage, we believe that our democratically elected representatives should be given a chance to address the issue under the constitutional mandate set forth in this opinion."


[ Parent ]
Court vacancies (0.00 / 0)
While Long and Wallace are both facing mandatory retirement during Christie's term, aren't Rivera-Soto and Hoens up for tenure in 2011 and 2013, respectively?  Christie could replace them if he wished to, couldn't he?


[ Parent ]
I tried to avoid (4.00 / 1)
reading about ME vote today, because I didn't want to deal with the hurt again. But this post put the lump in my throat. Although I believe our side will prevail, it doesn't ease the hurt feelings that people once again did not do the right thing.  I think this comment in particular hit home for me:
Our fundamental right to equality should never have been left to sudden death overtime by the party to which the LGBT community and our allies have been unstintingly loyal and have given so much.  

As big asupporter of the Dem. party as I have been and as a big supporter of Corzine, I am so angry that the Dems did not get this done when they had the chance. I am angry with Corzine for losing. I am angry at the cowards who know we deserve our constitutional right of equality, and even believe it, still voted against us.

When Bush was bombarding us with every stupid thing, I used to scratch my head and say isn't there 1 Republican that will oppose him, 1 Republican with belief in voting for the right thing rather than the political thing.  Well in my opinion there were legislators who voted for the wrong thing and they knowingly voted that way because of politics. These are cowards not leaders, and I fully expect that in the future they will hang their heads in shame realizing they were on the wrong side of history.
Also, there is no way of knowing this, but I believe if they passed gay marriage in Corzine's first 3 years and 9 months, he probably would have been re-elected. Even though the economy is the pressing issue, I believe that if he showed he had a spine and fought for something like this, even if people didn't agree with him, they would have thought well at least he's a fighter, maybe he can help us fight our way of of this economic mess. I remember talking to a lot of folks after Bush was reelected that could not stand him, but they voted for him, because at that time they perceived him as having guts.

I never expected Christie's Party to support us, but I did expect the Dems to get it done and they chickened out and waited too long. Makes me feel so sad.

I have sincere respect and appreciation for those of you who have chosen to carry on in this cause. Thank you for what you do for justice.


I am Devastated.. (0.00 / 0)
..but I really want to believe that this news is something to bring back hope and not a feeble attempt that will go nowhere.  I am just still so frazzled that I want to believe anything is possible.  Does this have a chance or is the chance as good as we had in the Senate full of cowards.

I am supposed to get "married" this November and I started to plan on it being "real".  It's going to still be my second-class attempt at commitment.


Vote (0.00 / 0)
Is there anyway I can find out who voted what?

Roll Call (4.00 / 1)
from AP:

Democrats-Yes

Barbara Buono [D-18]
Richard Codey [D-27]
Sandra Cunningham [D-31]
Nia Gill [D-34]
Robert Gordon [D-38]
Raymond Lesniak [D-20]
M. Teresa Ruiz [D-29]
Nicholas Scutari [D-22]
Bob Smith [D-17]
Brian Stack [D-33]
Joseph Vitale [D-19]
Loretta Weinberg [D-37]
Jim Whalen [D-2]

Democrats-No

John Girgenti [D-35]
Fred Madden [D-4]
Ronald Rice [D-28]
Nicholas Sacco [D-32]
Shirley Turner [D-15]
Jeff Van Drew [D-1]

Democrats-Not voting

James Beach [D-6]
Paul Sarlo [D-36]
Stephen Sweeney [D-3]

Republicans-Yes

Bill Baroni [R-14]

Republicans-No

Christopher Bateman [R-16]
Jennifer Beck [R-12]
Anthony Bucco [R-25]
Cardinale [R-39]
Christopher Connors [R-9]
Michael Doherty [R-23]
Philip Haines [R-8]
Sean Kean [R-11]
Thomas Kean [R-21]
Joseph Kyrillos [R-13]
Steven Oroho [R-24]
Kevin O'Toole [R-40]
Joseph Pennacchio [R-26]
Robert Singer [R-30]

Republicans-Not voting

Diane Allen [R-7]
Andrew Ciesla [R-10]


[ Parent ]
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