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N.J. JUSTICES CLEAR THE WAY FOR GAY UNIONS
New Jersey's Supreme Court ruled Wednesday that the state constitution guaranteed gay couples all the rights and benefits of marriage, except one: the word "marriage."
The 4-3 majority decision, written by Justice Barry T. Albin, reasons that by legally redefining marriage to include same-sex marriage, the court risked imposing its "personal value system on 8 1/2 million people."
Instead, the court gives New Jersey lawmakers six months to create the necessary statutes for same-sex partnerships that are legally equivalent to marriage. Legislators may choose whether the partnerships are called "marriage" -- or "civil unions," as in Vermont.
"The Legislature has played a major role, along with the courts, in ushering marriage into the modern era," Albin wrote. "The great engine for social change in this country has always been the democratic process. Although courts can ensure equal treatment, they cannot guarantee social acceptance, which must come through the evolving ethos of a maturing society."
After a series of discouraging legal setbacks, advocates of gay marriage looked to New Jersey as their best hope for an outright legal victory -- the first since Massachusetts' Supreme Judicial Court legalized gay marriage in 2003.
Most saw Wednesday's ruling as a split decision: a victory because it powerfully expands the rights of same-sex couples, and a loss because it does not guarantee full equality.
"This decision takes us from third-class citizens to second-class citizens. Nowhere near first-class," said Steven Goldstein, chairman of Garden State Equality. "We get to go from the back of the bus to the middle of the bus."
The justices unanimously called for full legal rights for gays and lesbians. "There is no rational basis for, on 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," Albin wrote.
The decision also rejects the notion that children or families would be harmed by gay marriage, reasoning that "families are strengthened by encouraging monogamous relationships, whether heterosexual or homosexual."
But there was division on the question of whether the court should grant the right to marry. In a sharply worded dissenting opinion, Chief Justice Deborah T. Poritz said the plaintiffs did not seek a collection of rights, but "asked, simply, to be married."
"Labels set people apart as surely as physical separation on a bus or in school facilities. Labels are used to perpetuate prejudice about differences that, in this case, are embedded in the law," she wrote. "Ultimately the message is that what same-sex couples have is not as important or as significant as 'real' marriage."
After the Massachusetts court's ruling, many anticipated a legal domino effect, but instead supreme courts in several states have rejected gay marriage. In July, high courts in Washington and New York upheld state laws limiting marriage to one man and one woman.
An appeals court in California this month ruled against legalizing gay marriage, and the case has been appealed to the state Supreme Court. Briefs filed by Atty. Gen. Bill Lockyer have argued that California's domestic partnership law already guarantees gay couples substantially the same rights as married couples.
Meanwhile, 19 states have sought to preempt rulings in favor of same-sex marriage by explicitly banning the practice in their constitutions. Eight more states will vote Nov. 7 on statewide bans, and seven others are considering such a move.
James Dobson, founder of Focus on the Family, said in a statement that he hoped New Jersey's ruling would drive conservative voters to "recognize that their state may be only one court ruling away from being forced to accept gay marriage," and thus compel them to vote in November.
"Nothing less than the future of the American family hangs in the balance if we allow one-man, one-woman marriage to be redefined out of existence," he said. "And, make no mistake, that is precisely the outcome the New Jersey Supreme Court is aiming for with this decision."
GOP strategists have fretted about the turnout of social conservatives in the upcoming election because of the scandal involving former Rep. Mark Foley (R-Fla.) and a book describing top White House aides embracing religious conservatives in public while calling them "nuts" behind their backs.
"The Democrats don't want a divisive social or cultural issue to rise up right now and drive GOP turnout," said Republican pollster Frank Luntz. "Single-sex marriage is a proven driver of voter turnout. If it becomes an issue, cultural conservatives are sure to vote, and that's good news for the GOP."
But Joe Solmonese, president of the Human Rights Campaign, a national gay rights group, said he doubted that gay marriage would compel voters this year, when Americans are more focused on other domestic issues and the war in Iraq.
"The mood of the electorate is very different," he said. "Thirteen days out from the election, this is not going to be a political hot potato."
The New Jersey case, Lewis vs. Harris, began in 2002, when seven same-sex couples applied for marriage licenses and were denied. A superior court judge rejected their argument in November 2003, reasoning that though the right to marry is fundamental, based on tradition, the right to marry someone of the same sex is not. In June 2005, an appellate panel ruled that only the Legislature could allow gays to marry.
The seven couples gathered Wednesday in Newark to await the verdict. Having braced for victory or defeat, several of the plaintiffs said hours later that they still weren't sure which it was.
Karen Nicholson-McFadden, 40, hitched her 3-year-old daughter, Maya, on one hip. All day, the girl had been asking about weddings.
"She did not ask, 'Did you get civil-unioned?' She did not ask, 'Did you get domestic-partnershipped?'" said Marcye Nicholson-McFadden, 42.
Their son, Kasey, a towheaded 7-year-old, stepped up to the lectern, disappeared behind a bank of microphones and spoke in a quiet voice.
"I think it would be fair for two moms and two dads to get married," he said. "And my moms are two of those people. It's very important."
Goldstein, chairman of Garden State Equality, said anyone hailing the decision as a victory for gay rights was "dead wrong." His organization began airing television commercials Wednesday afternoon in favor of full marriage rights, and announced that three state legislators had already agreed to introduce a bill legalizing gay marriage.
Republican legislators, meanwhile, prepared to propose a constitutional amendment banning gay marriage.
But Ingrid Reed, director of the Eagleton New Jersey Project at Rutgers University's Eagleton Institute of Politics, said legislators would probably take a middle path and craft a form of civil union.
A Rutgers-Eagleton poll in June showed that 49% of New Jersey voters supported legalizing gay and lesbian marriage and 44% opposed it. Support grew to 66% when the poll asked about civil unions, and opposition fell to 29%.
A civil union law could be passed, she said, with very little ideological uproar.
"It's one of those things where the best probably shouldn't be the enemy of the good," Reed said. "If you want to have movement in society, this seems to be sort of a wise next step."
Times staff writers Richard Simon and Lynn Marshall contributed to this report.
(BEGIN TEXT OF INFOBOX)
Gay marriage has been an issue in courts and legislatures around the country for more than a decade.
In 1993, Hawaii's Supreme Court ruled that laws denying same-sex couples the right to marry were invalid, unless the state could show a "compelling reason." That ruling began the national discussion that led to passage of the 1996 federal Defense of Marriage Act, which bars the federal government from recognizing same-sex marriages and allows states to do the same.
Today 44 states, including Hawaii, have statues or constitutional language defining marriage.
In July 2000, Vermont became the first state to recognize civil unions, which by law provide same-sex couples with all the rights and protections granted to married couples. Connecticut followed in 2005.
In November 2003, the Massachusetts Supreme Court ruled that it was unconstitutional to prohibit same-sex marriage; the state began issuing marriage licenses to gay and lesbian couples in May 2004. It remains the only state that allows same-sex marriage.
In February 2004, San Francisco officials began issuing marriage licenses to same-sex couples, followed by local governments in Oregon, New York, New Jersey and New Mexico. All were soon forced by the courts or state officials to stop.
California is the only state that provides almost all of the rights of marriage to unmarried couples. Hawaii, Maine, New Jersey and the District of Columbia extend some spousal rights outside of marriage.