Gay marriage case going before New Jersey's highest court

| 29 Sep 2011 | 08:09

    TRENTON, N.J. — Advocates for and against gay marriage will be watching New Jersey when their debate — which touches on tradition, civil rights and the very definition of marriage — is argued before the state Supreme Court. Activists on both sides of the issue were expected to hold rallies Wednesday outside of where the Supreme Court meets, and their rhetoric is expected to center on how their opponents’ notion of “family” is misguided and potentially harmful to children. In the courtroom, though, the arguments figure to be less about gay marriage as policy and more about who should decide whether to allow it: lawmakers or judges. The state Attorney General’s office, which is defending New Jersey’s ban on same-sex marriage, argues the Legislature should make such important and controversial decisions. Supporters of gay marriage say the court is the appropriate venue. “Courts get involved when there is a problem with a constitutional line,” said David Buckell, the lead counsel for Lambda Legal, which is representing the seven same-sex couples suing the state for the right to marry. Denying marriages to two men or two women is akin to denying a man and a woman of different races the right to marry, Buckell argues. The last laws banning interracial marriage were struck down in 1967. Robert F. Williams, a professor at Rutgers University School of Law in Camden and an expert on New Jersey’s Constitution, said the court must interpret the first clause of the document, which declares, “all persons are by nature free and independent.” So far, both a Superior Court judge and a three-judge appellate panel have sided with the state in the case known as Lewis v. Harris. Still, advocates think that in politically moderate New Jersey, they have a chance of seeing gay marriage allowed. The state high court has been friendly to gay rights causes in the past. It was among the first states, in the 1970s, to strike down a ban on sodomy. It has ruled in favor of adoption rights for gay couples and found in a decision that was later overturned by the U.S. Supreme Court that Boy Scouts should not be allowed to meet in public schools because the organization discriminates against gays. And New Jersey lawmakers — while never seriously considering allowing same-sex marriage — also have been quick to recognize same-sex unions. Lawmakers adopted a domestic partnership law in 2004, paving the way for the Garden State to now be one of seven that in some way formally recognizes gay couplings. The law extended some benefits of marriage, in areas such as taxes and hospital visitation, to same-sex couples.