February 22, 2012 Print
wedding couple on justice scale

New Jersey Judge Allows Lawsuit Against Same-Sex Marriage Ban

by Karla Dial

A New Jersey Superior Court judge said Tuesday that a group of same-sex couples could sue the state for violating their constitutional rights when it passed a law creating civil unions rather than same-sex marriage.

Judge Linda Feinberg based her opinion partly on the Feb. 7 ruling from the 9th U.S. Circuit Court of Appeals declaring the California marriage amendment unconstitutional. Seven same-sex couples and a gay-activist group filed the lawsuit last June, but Feinberg dismissed all but one count in November — the question of whether they were provided equal protection under the state constitution.

“At this juncture, the court is satisfied there is sufficient state action to permit the claim under the federal equal protection clause to proceed,” Feinberg wrote.

That opens the way for a new marriage challenge against New Jersey, which passed a same-sex marriage bill through both chambers of the Legislature last week. Gov. Chris Christie vetoed it on Friday.

A similar lawsuit made its way to the state Supreme Court in 2006, ending in a 4-3 decision that said the unions of same-sex couples do not have to be called “marriage.” The Legislature responded by passing the civil-unions law.

“She’s been pretty good as far as not being an activist judge, so this step here was kind of confusing to us,” said Len Deo, executive director of the New Jersey Family Policy Council.

In creating civil unions, the state gave same-sex couples the right to bring complaints both to the Civil Rights Commission and state health department. However, Deo said, in six years, only 13 complaints that civil unions were not providing adequate protections for same-sex couples have ever been filed with the Civil Rights Commission — 12 of which were dismissed — and none at all have been filed with the health department.

Therefore, there’s little legal ground to stand on in claiming that same-sex marriage must be legalized in order to make up for the failings of civil unions.

“Garden State Equality and (its founder) Steven Goldstein have from the beginning stated they didn’t give civil unions a chance to work. They didn’t want civil unions,” Deo said. “They want the whole enchilada. They want the title of marriage.”

In vetoing the same-sex marriage bill last Friday, Christie created a position for an ombudsman for civil unions to “provide a clear point of contact for those who have questions or concerns” and who “will be required to report any evidence of the law being violated. In this way, we can ensure equal treatment under the law.”

Read New Jersey Gov. Chris Christie’s veto message.