New Jersey The Next Same-Sex Marriage Battleground?

People are looking to New Jersey as the next same-sex marriage battleground, but it's not going to be an easy fight.

gay-marriage

New Jersey Governor Chris Christie spoke out quite strongly against the Supreme Court’s decision striking down the Defense of Marriage Act, calling it “an act of judicial supremacy” in a radio interview mere hours after the decision was released. This shouldn’t really come as much of a surprise. Notwithstanding his reputation as a generally moderate Republican, Christie has consistently opposed same-sex marriage and has already vetoed a bill sent to him that would’ve added New Jersey to the list of states that recognize marriages regardless of sexual orientation. However, there are several avenues by which same-sex marriage may come to New Jersey despite Christie’s opposition:

In the wake of the Supreme Court decision, Buono is pushing the legislature for a vote to override his veto of gay marriage legislation last fall.

Lawmakers who need [political] cover, they certainly have it now,” she told the Post. “Those that need a way to rationalize their vote to override, they’ve got it.”

But some gay marriage activists say they simply don’t have the 15 votes in the legislature to overcome Christie’s veto. State Senate President Stephen Sweeney says he is planning a vote but has not scheduled one.

“It’s under discussion at this point,” Buono said. “We want to make sure that we’re successful.”

That takes us to the legal fight. Lamda Legal will file a motion for summary judgment in a case before New Jersey Superior Court that argues the state’s civil unions are not equal to marriage.

In 2006, the New Jersey Supreme Court ruled that under the state constitution, gay couples are entitled to the same rights as married couples.

“That’s what makes us unique, and that’s why New Jersey is the epicenter for the next big battle on marriage equality,” said Udi Ofer, executive director of the New Jersey American Civil Liberties Union.

In response to the 2006 ruling, the legislature passed a bill establishing civil unions in the state. Since civil unions were adopted in the state, marriage advocates have argued that they are not equal to marriage. The DOMA ruling bolsters that claim. While couples in civil unions may get some federal benefits after the ruling — it’s a legal gray area — they will not get the automatic benefits enjoyed by spouses in states where gay marriage is legal.

“If there was ever a question about whether civil unions are equivalent to marriage, that question was answered by the Supreme Court,” said Sally Goldfarb, a Rutgers professor who specializes in family law. “Valid same-sex marriages are going to be automatically entitled to recognition by the federal government. Civil unions are not.”

Not being at all well-versed in New Jersey law, I’m not going to comment on the merits of the legal argument here, especially since there have been some changes to the makeup of New Jersey’s Supreme Court since that 2006 ruling that led to the legalization of civil unions in the state. However, to the extent that the Court’s ruling depended on the idea that same-sex couples must be given the same rights and benefits as opposite-sex couples then it strikes me that the Supreme Court’s opinion in United States v. Windsor that this is no longer the case. Married couples living in New Jersey are entitled to the literally thousands of potential benefits available to married couples under Federal Law, while persons in civil unions are not. Is that sufficient under the New Jersey Court’s holding in Lewis v. Harris to lead the Court to issue a ruling that same-sex marriage must be legalized in the Garden State? More importantly, would the Court be willing to follow in the footsteps of fellow Courts in Massachusetts and Iowa and make such a far-reaching ruling? One clue in that regard may be the fact that, in its 2006 ruling, the Court decided to leave the matter of finding a way to give same-sex couples equal benefits to the legislature rather than imposing it from above. Whichever way they decide to go though, it’s likely to be at least a year before there’s a definitive final ruling in that case since any appeal from the trial Court would first have to go through the Superior Court’s Appellate Division.

There’s legal option, of course, in the form of a Federal Court challenge building on the Supreme Court’s equal protection language in United States v. Windsor. With the right Plaintiff(s) and the right argument, it’s something that could work. However, it would take even more time than the current litigation pending in the state courts, and the legal ground appears to be more promising at the state court level than in Federal Court at the moment. Nonetheless, one would imagine that someone is looking into this option.

That’s why Democrats seem to be talking about trying to override Christie’s 2012 veto of the bill that would have legalized same-sex marriage. Most polls show that New Jersey residents favor same-sex marriage, at this point, so it would definitely be a political winner for Democrats, perhaps one that would help stem the tide of the anticipate Chris Christie landslide in November from having a serious impact on Democratic seats in the legislature. There’s just one problem facing Democrats, and it’s the fact that they presently don’t have the votes on their own to override a veto. They’re three votes short in the State Senate and at least six votes short in the General Assembly. In the Assembly, six of Democratic members voted against the bill so they would need to pick up twelve votes there to override the veto, including all six of the Democrats who originally voted against the bill. In other words, overriding the veto isn’t going to be easy at all.

That leaves one final option, a referendum. Christie has said several times that while he opposes same-sex marriage himself he would do nothing to block an effort to send the issue to the people. As I’ve noted before, recent polling has shown that voters in the state overwhelmingly favor same-sex marriage, so one expects that the referendum is likely to pass easily. Garden State Democrats have criticized the referendum idea as being too costly but, in the end, it may be the fastest and easiest option to get same-sex marriage legalized in the state. It’s too late, I believe, to get a referendum on the ballot for November, but there would seem to be more than enough time to get one on the ballot for the 2014 mid-terms.

Of course, there is another option. Democrats could unseat Christie. But, we all know that’s not going to happen.

FILED UNDER: Law and the Courts, US Politics, ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Matt Bernius says:

    I’ve long felt that New Jersey is really the place to watch, and the next major battleground. I expect that it’s also going to tell us a lot about the near-visible future of Republicans and this issue.

    Here are the big questions:
    1. Will the legislature take this up *before* the 2013 Gubernatorial election? (My bet: Republicans will manage to punt on this issue)
    2. If the answer to 1 is no, then how soon after the election will it come up? (My bet is within six months)

    And here are the two really important questions:
    3. How many additional Republicans will sign onto the bill. If this picks up more Republican legislators, it could suggest that Northern Rockerfeller Republicans are really starting to pull away from the Southern Reformed-Dixiecrat wing of the party.
    4. When it passes (and it will pass) the legislature, will Christie veto it again?

    I have no idea on the last one one. There’s a chance he might sign it, announcing that he’s rethought his position and that the country has moved on the topic. But if Christie’s serious about presidential aspiration, I think he’ll think twice about this unless he thinks the national party will move on the topic by then.

    The combination of immigration and gay marriage, both occurring back-to-back has the real potential to fragment the Republican/Conservative alliance in a way that few issues in recent history have.

    I really hope that they don’t go for the referendum route — I really don’t like the ideas of referendums, regardless of which side they are supposedly serving.

  2. @Matt Bernius:

    If the Democrats don’t try to override the veto before the end of the current session of the legislature at the end of 2013, they will have to start all over again.

  3. Matt Bernius says:

    @Doug Mataconis:
    Right. I was a bit surprised to see how long Jersey’s veto period is.

    I’d suspect that they’d prefer to go the route of sending the bill back to Christie for a number of political reasons.

    I do wonder if those political reasons might be enough to make the NJ Republican party opt to begrudgingly help overturn the veto. In many respects, I suspect that (versus another veto/signing decision) would be better for Christie’s long term political plans.

  4. @Matt Bernius:

    Well, if they wait until the next session and send him a new bill then it puts him on the spot regarding any future Presidential ambitions, so there is that.

    And, just for the record, I’ve said before that I’m generally a Christie fan. This, however, is one issue where I disagree with him strongly. The thing is that, for the reasons I noted above, it’s unlikely that the legislature would be able to override a veto even after the 2013 elections.

  5. anjin-san says:

    Check out Dusty Street’s epic takedown of homophobes

  6. OzarkHillbilly says:

    @Matt Bernius:

    But if Christie’s serious about presidential aspiration, I think he’ll think twice about this unless he thinks the national party will move on the topic by then.

    If Christie has serious Presidential aspirations, the first thing he has to do is leave the GOP. There is no way he can get the nomination from the party as it is presently constructed.

  7. edmondo says:

    I guess the media is too in love with Christie to ask him “why” he opposes same sex marriage…. other than crass political ambition. That wouldn’t fit the meme that he’s a “straight shooter”.

  8. Caj says:

    Chris Christie is on the wrong side of history over this. You watch his approval rating drop with his stand on it. He, like some of his counterparts are stuck on stupid where same sex marriage is concerned. It will happen eventually and Republicans can expect to NEVER set foot inside the White House again with their stone age way of thinking on that, immigration and women’s issues!

  9. Rafer Janders says:

    Forget New Jersey — my brother’s boyfriend in California just proposed to him! A great day for my family!

  10. Matt Bernius says:

    @OzarkHillbilly:

    If Christie has serious Presidential aspirations, the first thing he has to do is leave the GOP. There is no way he can get the nomination from the party as it is presently constructed.

    THIS. Christie could work as a VP candidate. Or as a Senator — if he’s interested in staying on the governing side.

    I still contend that Christie would be most useful for the party if he ran for the national chair position. It would allow him to throw rhetorical bombs in public and start to work to get the Ex-Dixiecrats in line with change in private. Plus, his frosty relationship with conservative media might help lessen the influence they currently have on the party.

  11. Sam Malone says:
  12. rudderpedals says:

    @Sam Malone: Not bad. For more, here is some interesting romantic interspecies stuff. The future awaits!
    http://theinternetisterrible.com/1691/kissing-time/

  13. John D'Geek says:

    @Matt Bernius: Chris Christie is too “New Jersey” to ever be elected president. New Jersey folks don’t “kiss (butt)” or sugar coat their words. Unfortuantely for him, he also fails the Veep test: never choose a Veep that can loose you votes.

    Ironically enough, that’s the type of person we need running for the Republican nomination.

    Catch-22 …