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A state with gay-friendly laws faces a fight over partnerships

New Jersey's Legislature has 180 days to legalize same-sex marriage or civil unions.

October 27, 2006|Ellen Barry | Times Staff Writer

NEW YORK — Three years ago, when then-Assemblywoman Loretta Weinberg decided to sponsor a domestic partnership law for gay and lesbian couples in New Jersey, the big surprise was how little fuss it caused.

There were no picketers outside the Legislature, no furious attacks by the opposition. When the bill was passed, she said, "I looked back, and I maybe had one nasty e-mail in the entire two years we worked on that."

In this quiet way, the state has gradually become known as a haven for gays and lesbians seeking legal protection. By tradition, New Jersey's lawmakers have tended to bypass national ideological battles, reserving their energy for issues like property taxes.

But Wednesday's state Supreme Court ruling, which gave the state Legislature 180 days to decide whether same-sex couples should be allowed to marry, has set the stage for six months of intense pressure.

"My guess is, most of our legislators today were tearing their hair out and saying, 'We don't need this,' " said Ruth Mandel, director of Rutgers University's Eagleton Institute of Politics. She noted that in November 2007, all 120 members of the Legislature are up for reelection.

New Jersey's highest court ruled that the state's Constitution guaranteed same-sex couples the same benefits enjoyed by married couples, but did not resolve the question of whether their unions should be called "marriage." The justices left that decision to legislators, who have 180 days to either expand the definition of marriage to include same-sex unions, or to establish civil unions for gay couples, as Vermont has.

The decision drew fire from conservative leaders, including President Bush, who made a rare reference to the issue at fundraisers Thursday for Republican congressional candidates in Iowa and Michigan.

"Yesterday, in New Jersey, we had another activist court issue a ruling that raises doubts about the institution of marriage," he said in Des Moines. "I believe that marriage is a union between a man and a woman. And 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."

Bush urged election of the Republican Senate candidate in Michigan, Mike Bouchard, saying that Bouchard would support conservative judges.

In the New Jersey case, the three justices who supported extending marriage to gays were named by a Republican governor; three of the four justices who said that step could only be granted by the Legislature were appointed by a Democrat.

The high court ruling enraged state Sen. Gerald Cardinale, a Republican, who has twice proposed a constitutional ban on gay marriage only to see his bill languish in committee. Cardinale said it was "unthinkable" for the court to dictate actions to the Legislature, and he vowed to renew his push for a ballot initiative banning gay marriage.

"This is not a mere interpretation of the Constitution; this is a change in the direction of our civilization that they are ordering," he said.

Assemblyman Richard Merkt, also a Republican, agreed. "The decision was made yesterday," he said. "All they did was kick it back to the Legislature to rubber-stamp the decision."

Leaders of both legislative houses said they would not allow any vote that would overturn the Supreme Court's ruling. By Thursday, however, it was clear that most legislators would opt for civil unions instead of marriage. Gov. Jon Corzine, a Democrat, said he would prefer that outcome, though he would not veto a gay marriage bill if it passed the Legislature.

Weinberg, a Democrat now serving in the state Senate, said she respected her colleagues' reverence for the word "marriage." "But there's another part of me that says, why? If it means the same thing, what's the difference?" She added that she was willing to compromise: "If we can only get 41 votes by calling them civil unions," she said, "then that's what we'll do."

That compromise would fall perfectly in line with voters, said Nathaniel Persily, a professor of law and political science at the University of Pennsylvania who has studied gay marriage and public opinion. When Massachusetts' Supreme Judicial Court legalized gay marriage in 2003, it sparked a nationwide backlash against the idea -- even in Massachusetts.

Now, Persily said, that backlash is over. Support of gay marriage itself is still growing at a "glacial pace" of about 1% a year, mostly due to generational replacement. But "people have been negotiating a middle ground in their mind" and finding that civil unions are a palatable alternative.

"I do not predict a backlash for this opinion," Persily said. "If they had done what Massachusetts did, I think the political impact would have been much more severe."

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