Editor’s Note (PG): With the passage of the New York State Gay Marriage Law, there is a possibility that the issue will be revisited in New Jersey. During the 2008 controversy in Ocean Grove, Blogfinger covered the story because it concerned our fellow Grovers on both sides of the question.
We continue our coverage now because many people in Ocean Grove are interested in knowing the facts, which are somewhat confusing, regarding whether New Jersey should go beyond Civil Union protections for gays.
Ross R. Anzaldi, Judge of the Superior Court of New Jersey (Ret.), has written this article as a public service in order to explain the law. We thank him for his willingness to help us understand what will surely re-emerge as an issue in this state.
By Judge Ross R. Anzaldi
With the passage in New York of the same sex marriage law, the New Jersey Civil Union law will once again undergo scrutiny. In this discussion, it would be well to focus on what advantages, if any, a New Jersey marriage law would provide that the New Jersey Civil Union law does not. Some would say that this debate is over semantics rather than substance. But if we include federal law in this discussion, we might reach a different conclusion.
Here is a little history. The New Jersey Domestic Partnership Act was passed on January 12, 2004. That law made domestic partnerships available to same sex couples and extended some of the regulatory and economic benefits of marriage to qualified couples. In 2006, the NJ Supreme Court in Lewis v. Harris held that the equal protection guarantees of the NJ constitution required that gay couples receive all the rights, benefits and responsibilities available to heterosexual couples.
New Jersey’s Civil Union Act, passed by the legislature on December 21, 2006, created a separate civil union structure and recognized civil unions performed in other states. Same sex couples who enter into civil unions are purportedly provided all the rights granted to married couples under NJ state law. Section NJSA 37:1-31-4(a) states: “civil union couples shall have all of the same benefits, protections and responsibilities under law, whether they derive from statute, administrative or court rule, public policy, common law or any other source of civil law, as are granted to spouses in a marriage.”
The problem, however, is with federal laws. In 1996, the U.S. Congress created the Defense of Marriage Act and defined marriage as ”only a legal union between one man and one woman as husband and wife.” As a result, there is no federal recognition of same sex unions in the United States for any purpose. This may not undermine the laws of New Jersey or any state that recognizes same sex civil unions or marriages. However, it prevents the states from enforcing equal rights in federal areas, such as Social Security, federal pensions and immigration.
On the issue of gay rights, therefore, the real fight may not be in each state, but in the U.S. Congress.
The judge raises a good point. Ultimately, it is a federal issue, because as long as The Defense Of Marriage act exists, individual state’s legislation in favor of gay marriage is still rife with shortcomings and obstructions. Once again Obama has failed his base by not coming through on gay rights and ending the Defense of Marriage act as well failing to come to the defense of soldiers expelled due to DADT which is still essentially an operative factor for homosexual soldiers. As a matter of fact, when New York passed it’s progressive legislation on the gay marriage issue, Obama, when questioned on his response, still couldn’t see fit to utter the words ‘gay marriage’ instead quailing on the issue and muttering some noncommittal blather about fairness and the same rights etc., but nothing declaratively stating that gay marriage now had a viable place is the juridical system of this society. Frankly, this whole businness seems a lot of puritanical folderol to me. Human beings should be allowed to marry human beings they love, their particular genders are wholly irrelevant, and straight people who think it’s their business as to who has the right to be married, have to look inside themselves and ask, ”What am I so afraid of? And why is it really my business if two men or women in love want to get married? How does that really affect my life?’ The good news is that in public opinion poll after poll the vast majority of Americans support the right of gay people to marry. Let’s just hope the federal government listens to those that elected them and follows suit.
I am sure there are others who can better address this subject but I will post my opinion as to why civil unions are not equal to marriage. If it were solely a legal status issue then the law, the courts and the government should only have an interest in whether people, straight or gay, have a legal status of a civil union whether gay or straight and accord everyone the same protection, rights and entitlements.
But “Marriage” is more than a legal status, it is society’s recognition of our status as a committed couple, who have taken an oath to one another to love, honor and cherish; to provide mutual aid and support. It reflects a set of feelings that the couple have for each other and how society sees them. And in that there is a big difference in how same sex couples are treated.
Society does not always see civil unions as legitimate or equal. In health care, education, housing and employment, same sex “spouses” are often discriminated against or have been challenged to be properly recognized as they should have if they were married.
Imagine spending 30 years with the person you love only to have their family take over their care and the assets you both have built up together. Or being denied death benefits for your wife and then having to fight to get your legitimate rights as in the case of the NJ police officer when she was dying from cancer. That rarely happens with couples who are called “married.”
By accepting that same sex couples can have the legal status of “married,” society becomes more accepting (as we are slowly if not painfully seeing). With the recognition of marriage, we don’t have to fight for our rights through courts because the meaning of the word marriage resonates with pretty much everyone and they know what rights it accords.