Speculation on Gay Marriage Ruling Swirls in New Jersey
October 23, 2006 NYTimes

TRENTON, Oct. 22 — The New Jersey Supreme Court is carrying much constitutional freight as it considers whether the state will be the second in the nation to find that gay couples have the right to marry. But for those watching the court, speculation has centered lately on smaller issues, like the chief justice’s birthday and the re-election prospects of Senator Robert Menendez.

Lawrence S. Lustberg, who argues frequently before the court and represents the gay plaintiffs in the case at hand, said the decision in the case, Lewis v. Harris, “is the most eagerly anticipated opinion” he has ever seen.

Steven Goldstein, the chairman of the gay-rights advocacy group Garden State Equality, concurred, saying, “Most of us in the gay community have no fingernails left.”

As each day passes without a decision, eight months after oral arguments before the court, the rumors and theories thicken: That the decision will come before Chief Justice Deborah T. Poritz’s mandatory retirement on her 70th birthday (Thursday). Or that the decision will come only after the State Senate’s scheduled vote to confirm the new chief justice, James R. Zazzali (Monday).

The conspiracy-minded question whether the decision is being delayed until after Election Day to avoid political repercussions. Some say a ruling in support of gay marriage would goad conservative voters to punish Democrats, including Mr. Menendez.

Others think that even if such a ruling were to galvanize Republicans elsewhere, it would barely register in New Jersey. Mr. Menendez and his Republican challenger, State Senator Thomas H. Kean Jr., have both supported some benefits for domestic partners, but have said they believe marriage should be between a man and a woman.

Yet even those who study the court’s daily moves concede that they have no way of knowing what the justices will do or when they will do it. In fact, the court has no deadline; unlike the United States Supreme Court, it can carry cases over from one term to the next. One decision issued in August, for example, came 20 months after oral arguments. And court officials say a retired justice may vote and even write opinions in cases that he or she heard.

The New Jersey Supreme Court, widely known as one of the most liberal state high courts in the nation, is also seen as among the most independent — a point that supporters of gay marriage have emphasized as appellate courts in three other states ruled this year that their constitutions do not include such rights for same-sex couples.

The Court of Appeals of New York, the state’s highest court, rejected a similar case in July. Gay-marriage proponents have since lost cases before the Supreme Court of Washington State and an intermediate appeals court in California. Other state courts had rebuffed similar constitutional challenges before, and 19 states have enacted constitutional amendments banning gay marriage.

While Vermont and Connecticut provide for civil unions, which extend some legal rights to same-sex couples, only Massachusetts — in a 2003 State Supreme Court decision with national reverberations — has recognized a right for them to marry.

New Jersey authorizes domestic partnerships, allowing registered partners to make critical medical decisions for each other, for example, and requiring insurance companies to offer health care benefits to the partner of a beneficiary. The case before the court seeks marital rights like entitlement to property acquired during the relationship, financial support when the relationship ends and recognition as a family member for government benefits.

It was brought by seven couples who claim that the state’s refusal to give them marriage licenses violates their rights to equal treatment under the State Constitution.

There is no explicit ban on same-sex marriage in New Jersey, but lower courts have said that the state’s marriage laws apply only to heterosexual couples and that nothing in the Constitution compels extending them to gays and lesbians.

David S. Buckel of the Lambda Legal Defense and Education Fund, who with Mr. Lustberg argued the plaintiffs’ case, said gay-rights advocates were optimistic about the appeal because New Jersey’s high court long ago departed from the federal courts’ more restrictive definition of equal protection. “The court is not afraid of controversial issues,” he said.

Public opinion here also appears to have shifted since the Massachusetts ruling excited a nationwide backlash. In a Rutgers-Eagleton poll of 803 New Jersey residents in June, 50 percent said they supported legal recognition for gay marriage, while 44 percent opposed it. The poll’s margin of error was plus or minus four percentage points. In 2003, when the poll asked state residents the same question, 43 percent of state residents supported gay marriage and 50 percent were opposed.

“It seems to be an issue that has passed,” said Ingrid W. Reed, a political scientist at the Eagleton Institute of Politics at Rutgers University. When the New Jersey Legislature authorized domestic partnerships in 2004, Ms. Reed said, “there wasn’t a huge energized polarization about the issue, considering how early we did it.”

“It seemed to require a public campaign to keep it before the public,” she added, “and that doesn’t seem to be in place in New Jersey.”

Still, John Tomicki, the executive director of the League of American Families, a group promoting conservative social policies, said conservatives would fire back if the court took it upon itself to redefine marriage. Mr. Tomicki said some opponents of gay marriage speculate “that the court is deliberately sitting on the decision until Justice Zazzali is confirmed and, if they could, holding the decision until after the election.”

Many gay-marriage advocates wish the court would wait until after Nov. 7, fearful that the decision they want could endanger the re-election prospects of Mr. Menendez, who is in an unexpectedly tight race, or more broadly hurt Democrats’ chances of taking control of Congress.

“There’s an awful lot of propaganda right now from radical Republicans,” said Barbra Casbar, president of the state chapter of the Stonewall Democrats, a national gay political organization. “They’re desperate to fire up their base.”

Even in New Jersey, Ms. Casbar said, a decision favoring gay marriage might spark enough conservative outrage to affect election results. “In a very close election that’s possible,” she said. “Senator Menendez is having it a lot tougher than he thought.”

Both sides said Chief Justice Poritz — who, at least until Thursday, controls the assignments and timing of opinions — appeared to favor legalizing gay marriage. But the court’s seven members have shown few consistent ideological patterns. New Jersey has a long tradition, regardless of who is governor, of alternating appointments between Democratic and Republican justices.

Mr. Tomicki, of the League of American Families, questioned whether Chief Justice Poritz could participate in court business after her retirement on Thursday, but a court spokeswoman, Winnie Comfort, said former justices had done so before.

Mr. Lustberg, the plaintiffs’ attorney, said he thought the court would seek to avoid any challenge to Justice Poritz’s vote by issuing the decision before she steps down.

For now, they and the small circle of obsessive court-watchers here are stuck staring at the Supreme Court’s Web site, www.judiciary.state.nj.us/supreme/index.htm, where a list of decisions to be issued the next day is posted each weekday at 10 a.m.