Votes in three states buoy hopes of gay-marriage advocates in N.J.
November 14, 2012By Hank Kalet, of NJ Spotlight
The success of marriage-equality ballot initiatives in three states on Tuesday demonstrates that voters are growing more accepting, but should not be used as models for legalization in New Jersey, supporters of same-sex marriage believe.
Voters in Maine, Maryland and Washington approved referendum questions Tuesday that made it legal for same-sex couples to marry in those states. They were the first such referendum questions to be approved in the nation, after 30 previous ballot initiatives around the country either banned same-sex marriage or reinforced existing bans.
Supporters of marriage equality in New Jersey, including Garden State Equality and the sponsors of bills that would legalize same-sex marriage in the state, say it is a civil-rights and constitutional issue and that it is the responsibility of the Legislature, governor and courts to expand and protect minority rights.
Supporters want the Legislature to override Gov. Chris Christie's veto of Senate Bill S1, which would legalize same-sex marriage.
"I am thrilled for those states, but this is where the Legislature has a responsibility," said Senate President Steven Sweeney (D-Gloucester). "We're going to push to get it done. Civil rights does not belong on the ballot."
The legislation passed both houses of the state Legislature on Feb. 16 – by a vote 42-33 in the Assembly, with four Democrats voting no and a fifth not voting, and by a 24-16 margin in the Senate, with two Democrats voting no and two Republicans voting yes. It was conditionally vetoed by the governor five days later.
The bill would redefine marriage in state law as "the legally recognized union of two consenting persons in a committed relationship," while exempting religious institutions and clergy from having to perform same-sex marriages.
The governor, who has in the past stated his opposition to same-sex marriage, said in his veto statement that legalization is "a profoundly significant societal change" and that the legislation essentially amended the state constitution, which only can be amended by a vote in a public referendum.
"I have repeatedly encouraged, and continue to ask that, the Legislature trust the people of New Jersey and seek their input by allowing our citizens to vote on the question of same-sex marriage," he said in the statement. "This path of amending the State Constitution, which embraces our most cherished democratic ideals and is enshrined in our guiding legal document, is the only way to amend our Constitution and the best way to resolve the issue of same-sex marriage in our State."
Following the veto, state Sen. Christopher "Kip" Bateman (R-Somerset) introduced a constitutional amendment that would put the fate of marriage equality before voters.
Same-sex marriage advocates, who were critical of the governor at the time, remain opposed to placing legalization on the ballot.
Steven Goldstein, chairman of the civil rights group Garden State Equality, which has been advocating for marriage equality, said in a statement on the group's Facebook page that "one can celebrate the victories in (Tuesday's) referenda" and still oppose putting marriage equality on the ballot because "the majority should never vote on the civil rights of a minority, period."
Assemblyman Reed Gusciora, the prime sponsor of the Assembly version of the bill and one of two openly gay men in the Legislature, called the ballot proposal a cop-out and criticized Sen. Christopher "Kip" Bateman, who has introduced the proposed amendment, as being disingenuous when he says he supports gay rights. Bateman wants to be the "protector of the gays," Gusciora said, but was not willing to vote for S1.
He said the votes in Maine, Maryland and Washington were encouraging because they show "people are more comfortable about marriage equality."
"It looks like the tides probably have shifted and so the real question should be put to Christie and Bateman. Do they see the tides changing and are they willing to change their view?"
Bateman did not return calls to his office seeking comment.
Other Democrats remain critical of the ballot plan.
"I don't believe that civil rights belong on a public referendum," said Sen. Majority Leader Loretta Weingberg (D-Bergen). "Rights, I believe, are guaranteed by our constitution and should not be subject to the whims of who can raise the most money."
A referendum could set a "bad precedent," because once you put marriage equality on the ballot then "you could put issues of choice and all kinds of things that I think are constitutional issues on the ballot."
Weinberg said it should be up to the Legislature to act and that Republican moderates "have to be willing to stand up."
"I would suggest that, since we passed marriage equality in the state Legislature, we need to have enough legislators look and see that obviously popular opinion is moving toward marriage equality," she said.
"We overwhelmingly re-elected in New Jersey a president who supported marriage equality and, given that, I would think there would be enough votes to override the governor's veto so that we don't need to have this discussion anymore."
Sweeney (D-Gloucester) said he would push for an override vote at what he called "the most opportune time."
The Legislature has until the end of the legislative session in January 2014 to post an override vote, and he believes that enough senators can be convinced to "do the right thing" by then.
"We know there are members of the Republican Senate caucus who were threatened with primaries and put under enormous pressure," he said. "We are trying to work with our colleagues who have let us know they support it."
Gusciora opposes a marriage-equality referendum, generally, but would not completely rule it out.
"As a general sense, I don't think civil rights should be on the ballot," he said. "It puts a class of people up for display and it asks people to weigh in on that class of people."
However, because he believes "the correction of civil rights failures should occur sooner rather than later," he would "seriously consider putting on the ballot" if it was the only way to resolve the issue.
This raises an interesting question, he said. Would the governor – and more moderate Republicans – want a same-sex marriage question on the ballot during a year in which they are up for re-election?
"I'm not sure if he would be supportive, because it would be on the ballot when he was on the ballot," he said. "You have to be careful what you wish for."
Same-sex-marriage supporters also pointed to the divisiveness of the California Proposition 8 vote in 2008, which overturned a state court ruling that legalized same-sex marriage there. Money poured into the state from groups on both sides of the issue – more than $83 million was spent – and ads ran saying that, should the same-sex-marriage ban fail at the polls, "public school children would be indoctrinated into accepting gay marriage against their parents' wishes, churches would be sanctioned for not performing same-sex weddings and the institution of marriage would be irreparably harmed," according to the Los Angeles Times.
Goldstein, in his statement, said a referendum is "not just a contest of popular opinion."
"A referendum is also a contest of which side can raise more millions," he said. "A referendum puts a community's civil rights up for sale to the highest bidder. Would you want your civil rights to be at the mercy of the financial infestation of our political system? Aren't we sick of the Super PAC lies that slice our society with hate? Can you imagine the exponential hate – and cost – that would infest a marriage equality referendum in hardball New Jersey?"
He said it was up to the Legislature to overturn the governor's veto and, failing that, to push through with litigation designed to force the state to give same-sex couples the same rights as others.
"Today, we redouble commitment to winning marriage equality in New Jersey through the people's representatives and in working with our national partners," he said. "If that doesn't work – and don't bet against us because we will make it work – Garden State Equality is proud to be a plaintiff in a lawsuit with seven couples, represented by Lambda Legal and the legendary Gibbons law firm."
NJ Spotlight, an independent online news service on issues critical to New Jersey, makes its in-depth reporting available to NewsWorks.