Superior Court Judge Linda Feinberg says that a gay rights group and several couples have the right to argue the state's civil union law does not give them equal protection under the law
Remi Lourenco of Harrison, age 20, a student at The College of New Jersey; holds a home made sign during a rally held in support of gay marriage in New Jersey, held in Hoboken in July 2011. TRENTON — A Superior Court judge let a lawsuit seeking marriage for same-sex couples in New Jersey proceed, but she sharply pared down the number of allegations in the case against the state.
If the law creating civil unions does not give same-sex couples the same protections as married heterosexual couples, it has to be examined as to whether it is constitutional, Mercer County Assignment Judge Linda Feinberg said during a hearing in Trenton this afternoon.
But in dismissing three counts of the complaint, Feinberg also said there is no fundamental right to same-sex marriage under the state Constitution. One count of the suit — a claim that the civil union law does not give them equal protection — remains.
She noted same-sex couples complain civil unions, created in New Jersey in 2006, still don’t give them the same benefits as marriage in situations such as health benefits sharing and health care decisions.
"I don’t think that the court can remain silent and take no action if…the result is that those benefits are not equal in the protections," Feinberg said.
The hearing was the first in a lawsuit filed in June by the civil rights group Garden State Equality, seven couples and many of their children. They say the state's civil unions fall short of creating equality for same-sex couples as ordered by the state Supreme Court five years ago.
Assistant Attorney General Robert Lougy argued the state’s civil union law is sound and said aggrieved couples have other ways of seeking redress if they feel they were wronged by hospitals or other institutions or individuals.
"If there are violations of the statute, that doesn’t render the statute unconstitutional, your honor," Lougy argued.
"This is a suit to challenge that. That’s why we’re here," Feinberg replied.
Hayley Gorenberg, deputy legal director for Lambda Legal, the civil rights group representing the seven couples in the suit, said calling a living arrangement a civil union doesn’t automatically give it all the characteristics of a marriage.
"It turns out the name is not innocuous and not just a name," she said.
In a 2006 decision that stopped short of recognizing gay marriage, the state Supreme Court said legislators have to provide marriage-like rights to same-sex partners. It left the details of those rights — and the label — up to the lawmakers. Later that year, legislators created civil unions, giving the same benefits of marriage but not using the term.
In January 2010, the state Senate defeated an effort to legalize same-sex marriage. Two months later, same-sex couples went to the Supreme Court asking for the right to marry.
They contended the civil unions still did not give them benefits similar to married heterosexual couples. But the state’s highest court declined to hear the issue and instead said the case has to work its way through the trial courts.
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