N.J. court bars gay marriage
WASHINGTON -- A state judge in New Jersey ruled yesterday that same-sex couples do not have a right under the state's constitution to marry -- the second state court to make that decision since a gay rights decision by the US Supreme Court last June put new emphasis on the issue.
Superior Court Judge Linda R. Feinberg of Trenton said homosexual couples do not have "the right to enter into a government-sanctioned marriage," either under state marriage law or the state constitution's protections for privacy and for legal equality.
The right of privacy "includes only the union of persons of different genders," the judge said. "Thus, a prohibition on same-sex marriage is not so much a limitation on the right to marry, but a defining element of that right accepted for generations as an essential characteristic of marriage."
"The framers of the New Jersey Constitution of 1947 could not possibly have fathomed same-sex marriage at all, let alone as a fundamental right cloaked in constitutional protection," Feinberg wrote in a 71-page opinion.
Lambda Legal, the gay rights advocacy group that filed the New Jersey challenge for seven homosexual couples who want to get married, said the ruling was unsurprising. "More than anything, this ruling propels us forward to higher courts, where both sides have always known it will be decided," said one of its attorneys, David Buckel. The group said it would appeal to higher state courts in the next several weeks.
The ruling reached the same result as a recent decision by a state Appeals Court in Arizona, finding no right for gays to marry under either the US Constitution or the Arizona Constitution. The Massachusetts Supreme Judicial Court is now weighing a case brought by gay couples under the state constitution.
Although the New Jersey ruling yesterday was based solely on the state constitution, the judge also said that the state document gets its meaning of privacy rights mainly from the US Constitution, and noted that the federal document has never been interpreted to protect homosexual marriage.
The majority of justices in the 5-to-4 ruling that struck down state antisodomy laws last summer said that the Supreme Court was not deciding whether those rights include a right to marry, but some gay rights advocates are beginning to make that argument.
