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.