A Supreme Court ruling striking down the Defense of Marriage Act (DOMA) would be a historical win for the gay-rights movement. Although the decision probably wouldn’t have any direct impact on Jersey’s civil unions, policy experts and legislators expect that if DOMA is tossed out it would give ammo to those pushing for gay marriage. “You’d have an additional political and legal argument to be made in N.J.,” said Robert Williams, a professor at Rutgers School of Law–Camden.
The U.S. Supreme Court is expected to announce its decision on DOMA on Thursday or Monday.
In New Jersey, civil unions are supposed to provide same-sex couples all the benefits of marriage, but a 2008 report ordered by the state legislature found that in practice, they fall short of providing the court-mandated equality for same-sex couples. For years, LGBT advocates have been fighting for marriage equality.
If the country’s highest court decides that DOMA is unconstitutional, legally married gay and lesbian couples in 12 states will win access to 1,138 the federal rights, benefits and protections granted. But, according to legal experts, couples in Jersey’s civil unions will probably be counted out.
“It will prove to those people who say civil unions give people all they need that civil unions are not equal,” said N.J. Senate Majority leader Loretta Weinberg, who is trying to drum up legislative support to override Republican Governor Chris Christie’s veto on a 2012 bill that would have legalized same-sex marriage. “When the Supreme Court—I think—throws out DOMA,” Weinberg said, it will push legislators who are “sitting on the fence” to support her cause.
But the path to same-sex marriage in New Jersey might not be so simple. At issue is not only whether to legalize gay marriage, but also how.
Should the public vote on gay marriage?
Last year, openly gay N.J. Assemblyman Reed Gusciora (D-Mercer) spearheaded the marriage equality bill that was vetoed by Christie. Though he is personally opposed to same-sex marriage, Christie urged supporters of the bill to put issue up for popular vote. Gusciora criticized the approach. The Governor called him “numbnuts.”
But lately, Gusciora has more in common with Christie and other Republicans than LGBT advocates in his own party. Inspired by ballot-box wins for gay marriage in Maine, Washington, and Maryland, Gusciora is pushing for the thing he had once opposed: a state-wide ballot initiative on gay marriage.
“I think we should accept their challenge and embrace the issue,” said Gusciora. The veto override is taking too long, he said, “We’re kind of at a standstill.” The ballot initiative, Gusciora said, could get things moving again.
In an election where widely supported Republican Christie is at top of the ballot, Gusciora said putting gay marriage on the ballot would energize young people and increase Democratic voter turnout. “I think this is a win for Democrats,” he said. “This will make sure people pay attention to the November election.”
Moreover, Gusciora is emboldened by polls that show a majority of New Jersey voters are in favor of gay marriage.
Despite Gusciora’s optimism, several Democratic legislators, including Senate Majority Leader Weinberg and Senate President Stephen Sweeney are opposed to the strategy. And many gay-rights advocates also don’t want a public vote gay marriage. In December, Garden State Equality, Freedom to Marry, Human Rights Campaign, and others put out a joint press release criticizing Gusciora’s approach.
“It’s expensive, it’s divisive and I don’t think civil rights belong on the ballot,” said Weinberg.
Veto override and ballot initiative aren’t the only options for those looking to legalize same-sex marriage. In 2011, gay-rights advocacy group Lambda Legal filed a suit with the N.J. Superior Court in an effort to legalize gay marriage through the courts.
Moreover, Garden State Equality Executive Director Troy Stevenson said, “When you put it in a ballot initiative, it forces people to take sides immediately.” In his experience, Stevenson said, the campaigns in states where gay marriage was put to the ballot have been very negative, to the detriment of LGBT citizens. “The opponents of marriage equality have said some horrific things,” Stevenson said. “I watched it tear families apart.”
For Gusciora, in the scenario that gay marriage is voted down, “it just means the status quo. If the ballot initiative doesn’t work, gay rights supporters can continue to work for victory via the legislature or the courts.
But according to Stevenson, “It sets a bad precedent. “Yes, we’ve got high poll numbers and I do think we can win on the ballot,” he said. “Imagine if we had put voting rights on the ballot.”
While Gusciora lacks Democratic supporters, legislators from the across the aisle have come forward in favor of the ballot initiative.
Gusciora will need support from both legislative houses, as well as Christie’s signature in order to get his proposal on the November ballot. The NJ Assembly has yet to vote on the measure.
The Supreme Court will also be ruling on another important gay marriage case–Proposition 8, which bans same-sex marriage in California.