Marriage Is a Right for Gays, Too

NEWS & VIEWS > EDITOR'S NOTE

By Mike Epifanio

Add Comment | Comments: 0 | Posted Jun. 23, 2005

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In case you missed it, last week a New Jersey Appeals Court upheld by a 2-1 margin a trial court's ruling against marriages between members of the same sex. "Pro-family" (a.k.a. anti-gay) activists lauded the decision, while those in favor of gay marriage just saw it as a necessary hurdle on the road to a state Supreme Court case. The notice of appeal will soon be filed with the high court by Lambda Legal, which is representing the plaintiffs in the case (seven homosexual couples). The case will likely be heard by the state Supreme Court within a year.

The plaintiffs claim that the New Jersey Constitution requires the extension of the institution of marriage to all couples, whether the couple is comprised of two men, two women or a man and a woman. Strong support for that argument can be found in Article 1, Paragraph 1 of the New Jersey Constitution, which states:

"All persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property, and of pursuing and obtaining safety and happiness."

In January 2004, Governor James McGreevey signed New Jersey's "Domestic Partnership Act" into law (it went into effect last July), which granted formal recognition by the state to same-sex couples. But it stopped short of the M word. Gay couples will always feel like second-class citizens if they are not allowed to marry. No New Jersey municipality will issue a same-sex couple a marriage license until and unless this case is overturned in the state Supreme Court.

Almost 12 years ago, I chose to marry a woman in this state and nobody denied my right to do so. I can't imagine how undignified and wronged I would have felt if I was told that I couldn't marry the person I love and chose to marry. That happens every day in New Jersey (not to mention every other state except Massachusetts) to same-sex couples who are deeply committed to one another in loving relationships.

The state trial court had reached the decision that it couldn't rule in favor of two people of the same sex marrying since it had never been allowed in the past. The Appeals Court agreed last week. Allowing gays to marry, argued the trial court, would "contradict the established and universally accepted legal precept that marriage is the union of people of different genders."

Well, duh. That's the freaking point, isn't it?

The same pretzel logic was used by those who wanted to ban interracial marriages until the U.S. Supreme Court ruled that persons of different races had the same rights to marry as those of the same races. Just because governmental entities hadn't previously recognized their right to marry in the past, didn't mean they didn't have that right.

If you want to rally around legislation that would uphold the "sanctity of marriage," then pass a law banning divorces. That's ridiculous, but so is the logic of the conservative Christians who say that recognition of gay marriage would devalue or damage existing heterosexual marriages or the institution of marriage itself. I don't know about you, but the everyday stress induced by sharing child-rearing responsibilities in a two-career household is a bigger threat for me and my wife than whether our gay neighbors decide to tie the knot.

Appeals Court Judge Stephen Skillman wrote for the majority, "[T]o whatever extent it may be appropriate to consider current social mores and values in interpreting the liberty and equality protections of Article I, Paragraph 1, there is no basis for concluding that our society now accepts the view that there is no essential difference between a traditional marriage of a man and woman and a marriage between members of the same sex."

Wrong. In early May a Zogby International poll revealed that 55 percent of those surveyed (804 New Jersey voters) favor allowing same-sex couples to marry. Forty percent were opposed. Zogby conducted a similar poll in July 2003 and the result was nearly identical (55 to 41 percent).

Our state legislature is to be commended for passing the Domestic Partnership Act last year. It was a tremendous first step in defending the civil rights of our state's citizens no matter what their sexual preference may be. But since our state Assembly and Senate stopped short of specifically recognizing the rights of gays to marry, the Supreme Court should now force the legislature's hand.

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