Volume 5, Number 28 | July 13 - 19, 2006

LEGAL

Optimism as Jersey Awaits Marriage Ruling

BY PAUL SCHINDLER

“New Jersey could be the first state in America where we not only win marriage equality easily, but where there’s almost an overnight, or a fairly quick, velvet revolution of acceptance.”

That’s the upbeat assessment of Steven Goldstein, the founding chairman of Garden State Equality, the state gay rights organization that has grown up in the past several years and provided critical public education and lobbying in support of the gay marriage lawsuit that Lambda Legal has litigated since June 2002.

Oral argument on the lawsuit, originally filed on behalf of five lesbian and two gay couples, was heard at the New Jersey Supreme Court in February, and a ruling could come at any time. Goldstein placed the outside boundary on a ruling at mid-October when Chief Justice Deborah T. Poritz reaches the mandatory retirement age of 70.

“Nobody thinks that she’s going to retire without wanting to be on the bench that decides this case,” Goldstein said during an interview with Gay City News this week.

Goldstein’s optimism is striking, particularly in the wake of last week’s disappointing result from the New York Court of Appeals, which not only denied same-sex couples the right to marry but also found that public policies that discriminate based on sexual orientation need only be justified by the least demanding standard—that they can be construed as “rational.” The court also discounted widely accepted evidence that children of gay and lesbian parents thrive as well as those in American households generally.

Goldstein is frustrated that significant media attention has focused on the notion that the marriage equality movement, successful in Massachusetts, has been halted in New York, widely seen nationally as a liberal haven on par with the Bay State.

“There is huge difference between New Jersey and New York,” he argued, stressing that the Garden State is a better playing field for the gay marriage issue. “New Jersey is definitely to the left of New York as a whole. We don’t have the equivalent of an upstate New York… The demographics favor us enormously.”

Yet polling on the marriage question yields similar—and strong—results in the two states. Goldstein said Garden State residents support gay marriage by a 56 to 39 percent margin and oppose any state constitutional ban 67 to 28. A March poll by Global Strategy Group, commissioned by the Empire State Pride Agenda, found that residents of this state feel just about the same, favoring marriage equality by a 53 to 38 percent margin.

But Goldstein points to other key factors in the New Jersey situation—the leanings of its Supreme Court, its prior case law, and the strength of the state Constitution’s equal protection guarantee. When Lambda filed the case in 2002, David S. Buckel, who heads the group’s Marriage Project, explained that the right to marry has been specifically upheld as part of the equal protection right to privacy.

“The right to marry doesn’t mean much if you can’t marry the person you love,” he said at the time, adding, “It is certainly true that New Jersey courts take the New Jersey Constitution seriously. The phrase ‘life, liberty, and the pursuit of happiness’ is in the state Constitution and it really means something here.”

The state’s judiciary has handed the gay community significant wins in recent years—a 1997 Bergen County ruling in a case brought by Lambda on behalf of Jon and Michael Galluccio that for the first time in the U.S. established a right to joint adoption by same-sex couples and the unanimous 1999 Supreme Court ruling in favor of James Dale against the Boy Scouts of America (later overturned by the U.S. Supreme Court.)

The enlightened attitude toward gay parenting pioneered in New Jersey in part explains Goldstein’s optimism about the outcome of the Supreme Court deliberations. Recalling how the February Supreme Court hearing played out, he said, “In the New Jersey arguments, there were no questions about child-rearing,” in sharp contrast to the case in New York where one of the majority opinions, written by Judge Robert S. Smith, specifically stated that it was “rational” to accept the “common-sense premise” that children benefit more from being raised by opposite-sex married couples than by same-sex couples.”

Should the high court rule for the plaintiff couples, Goldstein is similarly confident that the decision can be protected from any attempt at amending the state Constitution. He managed the 2000 U.S. Senate campaign of Jon Corzine, now New Jersey’s governor, and asked how the Democrat would respond to a pro-gay ruling, Goldstein said, “One thing on which he has never wavered has been his steadfast opposition to a state constitutional amendment against marriage equality.”

He is similarly upbeat about the Legislature, saying that Assembly Speaker Joseph Roberts Jr., also a Democrat, told him and has said publicly that an anti-gay constitutional amendment would only be approved “over my dead body.”

Still, Goldstein would take no chances. A rabbinical student in Philadelphia who takes no salary for his Garden State Equality work to which he devotes 50 hours a week even when in school, Goldstein said he would take a leave of absence from his studies for a year to work full-time defending a marriage equality ruling by the court. Pointing to two dozen town hall meetings in the past three years that have drawn a cumulative crowd of 10,000, he said that Garden State Equality has mastered the grassroots organizing that has been so important to MassEquality in their success to date in defending gay marriage there.

Same-sex marriage is important to New Jersey, he argued, because gay and lesbian people drawn to the nation’s most heavily suburbanized state skew toward couples, many of whom have children.

“There are a good 20 gay population centers in New Jersey today, most of which didn’t exist 15 years ago,” he said. “New Yorkers would be surprised to visit Maplewood, and go to a general store there and see male couples and female couples holding hands.”

Goldstein said that it is widely understood—even among legislators—that the state domestic partner law adopted to much acclaim just two years ago is woefully lacking in its protections. The heart-rending case of Ocean County Police Lieutenant Laurel Hester, dying of lung cancer, who had to battle county freeholders last year to exercise their local option to join the state partnership program—so that her partner could receive death benefits and hold onto their home—became a cause célèbre and led to a “sea change” in attitudes in Trenton, according to Goldstein.

More prosaically, he said he has been “shocked” at the fact that domestic partnership status has not been universally accepted at institutions such as hospitals.

“You can add all the rights you want, it won’t matter,” he said. “Marriage is the only currency of commitment that people in the real world understand and accept.”

And if the New Jersey high court rules against same-sex marriage?

Goldstein conceded that Corzine publicly does not support marriage equality, nor do the legislative leaders. Still, he believes that minds can be changed.

Drawing on a relationship with the governor that goes back more than six years, Goldstein said, “Jon doesn’t go with the tide. I know that Jon in his heart of hearts is for marriage equality. Jon has consultants who think that marriage equality is death beyond New Jersey,” a comment that suggests the governor might have national aspirations.

“The question is not what our public leaders think today,” Goldstein said, focusing on plan B, an effort to win marriage equality in the Legislature and governor’s office. “The question is whether you as the LGBT community have the potential and capacity to change the minds of the leaders to a position that they don’t yet know they’re going to have.”

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