The New Jersey Supreme Court unanimously ruled Oct. 25 that gays and lesbians cannot be denied equal legal benefits associated with marriage under the state constitution.
However, a four person majority said it was up to the legislature to decide if that should be accomplished by expanding marriage to include gays or through other means such as civil unions. It gave the legislature 180 days in which to act. Three of the justices said gays should have been included under the umbrella of marriage.
'It's not heaven, it's not hell, it's purgatory,' said Steve Goldstein in an e-mail to members of Garden State Equality, the leading New Jersey LGBT organization, which he chairs. 'If we don't win the label 'marriage,' we will NOT have equal protection under the law.'
He reminded them of police Lt. Laurel Hester, whose dying request was for survivor's benefits for her lesbian partner, but who was turned down by elected officials. Goldstein said, 'Without the label of marriage, couples like Lt. Hester and her partner, and scores of others across New Jersey, have been told time and again, 'we don't care what the law says, you're not married.''
David Buckel is the director of the Marriage Project with Lambda Legal and argued the case before the court. He said, 'The bottom line is that the entire court said that there must be a remedy for the inequality that bars same-sex couples from marriage.' He urged the legislature to quickly pass a law allowing gays to marry.
Evan Wolfson, executive director of the national organization Freedom to Marry, called the decision 'a recognition of the equal needs and common humanity of committed same-sex couples and their kids.'
He rejected the idea that equality could be achieved through a separate but equal system of marriage and civil unions. 'I don't think there is an American in the country who would cash in their marriage in exchange for a civil union. Legislators have the opportunity 'to end discrimination in marriage, not repackage it … to end the exclusion from marriage itself with two simple words, 'I do.''
'The justices are not idiots, they know that elections are coming up' on state same-sex marriage ballot initiatives across the nation, said the doyen of gay political science, Ken Sherrill, a professor at Hunter University. 'Given the political climate in the country, I'm not surprised they felt this was as far as they could go.'
Gay pundit and long-time marriage advocate Andrew Sullivan was of a similar mind. He wrote on his blog, 'Moderation and patience are now what the gay movement needs, not absolutism. We're winning the argument, so why demand total victory now when reasonable people, uncomfortable with marriage, can give us so much so soon, short of marriage equality. Are we that impatient?'
The limited scope of the ruling has not stopped the far right from trying to spin it in apocalyptic terms.
'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,' thundered James Dobson, founder of Focus on the Family. 'And, make no mistake, that is precisely the outcome the New Jersey court is aiming for with this decision.
His minion at the Family Research Council, Tony Perkins, railed against 'veiled judicial activism' that 'made the legislature their henchman by ordering the legislature to resolve whether it takes the form of same-sex marriage or civil unions.'
'Yesterday, in New Jersey, we had another activist court issue a ruling that raises doubts about the institution of marriage,' asserted President George W. Bush on the campaign trail for Republican candidates.
He reiterated his belief that 'marriage is a union between a man and a woman.' He added, 'I believe it's a sacred institution that is critical to the health of our society and the well-being of families, and it must be defended.'
Maggie Gallagher was no less concerned but more restrained and nuanced in her language. The president of the Institute for Marriage and Public Policy told the New York Times the decision was 'a temporary reprieve. The legislature could do civil unions, but the court has reserved the right to rule two or five years down the road that's not good enough.'
Despite the efforts by social conservatives to gin up the issue to motivate their supporters to get out the vote, it is difficult to assess how effective that might be. Polling has shown that the issue has lost some of its intensity when compared with other issues, over the last two years. More importantly, most of the tight congressional races are in districts where the religious right has limited influence.
Meanwhile, back in New Jersey, Garden State Equality ( GSE ) launched an aggressive campaign to influence the legislature to enact marriage legislation rather than an alternative. The day after the decision came down, a trio of legislators announced that they would introduce such a bill.
GSE also launched a commercial on local cable television featuring the dying Lt. Hester asking for support in the fight for equality. And it redoubled its grassroots lobbying and public education activities.
Democrats control both houses of the New Jersey legislature. Democratic Gov. Jon Corzine made clear his continued preference for civil unions, but the day after the decision came down, he said he would sign a marriage bill, if that is what the legislature passes.
GSE cites a recent poll showing that New Jersey voters favor marriage equaility by 56% to 39%. But the smart money is betting that the legislature takes the less politically risky route of enacting civil unions.
The GSE ad can be seen at their Web site www.GardenStateEquality.org .