If a bill legalizing gay marriage dies, and it appears very likely that it will, the issue could once again go to the courts.
In 2006, the New Jersey Supreme Court ruled in the case Lewis v. Harris that same sex couples are entitled to equal protection under the law. Later that same year, New Jersey passed a law establishing civil unions. But a commission created by that law to study it concluded that civil unions are inadequate, and marriage is the only remedy. Even critics have acknowledged that the civil union law may not go far enough. Democratic Senator Ron Rice for example is opposed gay marriage, but has expressed a willingness to fix the current civil union law.
Five Republican Senators led by Minority Leader Tom Kean have vowed to do the same. But the fundamental question remains…can the law be nuanced enough to ensure full equality under the law?
“You can get close, but you’ll never have full equality” says Allen Etish, President of the NJ State Bar Association. Until a partner is called a “spouse” there is just no way to ensure that hospitals, health and life insurance companies will catch up to the idea that civil union partners deserve the same rights and benefits. Any other kind of partnership “just doesn’t cut it.”
So what does that mean? Well, you have what sounds like a sincere belief within the legislature that the current law needs to be fixed. How high making that change will be on the list of priorities when the state can barely pay its bills is a whole other question. Something tells me not very high.
Which brings us back to the court. Another test case would have to wind its way through the system to once again reach the SCONJ. At that point justices will rule on the constitutionality of the current civil union law. That could take a year, or it could take three. Either way I can already hear the critics who will decry the court’s “legislating from the bench.”
A lawyer I am not. But it seems pretty clear that the legislature has been given more than enough opportunities to make this right. Let’s see if they act.