Due Process; 903 Same-Sex Marriage

And success, they say, would be their wedding, fully -leaved, here in New Jersey. Massachusetts is already on course. Could New Jersey be next? Are domestic partnerships just the beginning? The escalating fight for gay marriage up next on this edition of Due Process. Major funding for Due Process is made possible by the New Jersey State Bar Foundation, committed to educating the public about the law. Additional funding is provided by Lawyer's Diary Emanuel. Music As soon as this May, Massachusetts could see the country's first legal

marriages between same -sex couples. Just one month after New Jersey lawmakers legalized domestic partnership for gays, the Massachusetts High Court said that under its constitution, civil unions just weren't good enough. That court's order, nothing less than full and equal gay marriage. I'm Raymond Brown, and on this edition of Due Process, what domestic partnership means for New Jersey's gay couples, what the Massachusetts ruling could mean for New Jersey, and how it's all likely to play out politically, both here and around the country. But first, here's Sandy King with the story of one gay couple for whom Massachusetts means new hope for the chance that they may ultimately be allowed to marry here. And Raymond, they are not merely two men in a committed long -term relationship, they are two episcopal priests who've been trying to marry for nearly two years since they first showed up at their local town hall to apply for a marriage license. That license was refused, but their legal case continues as the meaning of marriage and whom it should be for. It's

increasingly the stuff of a furious debate. It may sound like the same old tune, but these days, with a decided difference. Goin' through the chapel and we're gonna get married Oh, the old familiar songs, the images we know so well. The cake with the loving pair on top, bride and groom, boy and girl. But soon, at least up in the Bay State, the wedding cake and the wedded couple could have an all -new look. Marriage is an evolving thing. Marriage is not some sort of icon that never changes. Marriage is evolving all the time. It's evolving right now with us. But unless New Jersey's High Court rules, as the Massachusetts Court has, the evolution may have its limits.

Mark Lewis and Dennis Winslow may find that equal legal marriage is still beyond their reach. You can take those jars for the recycling. We don't have to keep those. They're keeping them grand. They're like my grandmother. She thinks they're made out of gold. They've been together nearly 13 years. They share a life, an apartment, even a vocation. never fails to amaze me, the irony that the state of New Jersey believes that I'm fit to act as an agent to execute marriage licenses for them, but not to receive one, not to be so licensed for myself. In other words, Mark is an episcopal priest. So is Dennis. And they've both officiated at lots of weddings. But now, they want their own. Well, I'm delighted about the new legislation because it's one more step toward justice for everybody. And as you know, Lambda Legal's case has been

called supporting all roads to justice, domestic partnership in the legislature, marriage in the courts. So in my point of view, that's some half of our battle won. But only half. Now off. That half made real when the governor signed domestic partnership legislation into law. But still headed for the New Jersey Supreme Court, a suit designed to go much further. And Mark and Dennis are among the still hopeful plaintiffs. My name is Mark Lewis, and this is my partner, Dennis Winslow. You have serious hopes that this court will say, you know, Massachusetts was right, we're going to do the same thing. Nope. I have serious hopes that this court will say this is the right thing and we want it for New Jersey. But not everyone's willing to wait for New Jersey and the chance that it might become the second state to legalize gay marriage. We have come here today to say the love between two women and the love between two men

is sacred. Now if John Holden and Michael Galuccio look familiar, it may be that you remember their gay rights victory. They won the right to joint adoption by gay couples seven years ago. Now they're the fathers of three adopted kids. At ten years, we put on the tuxedos, we had a commitment ceremony. And they say, just as soon as Massachusetts starts issuing its marriage license to gays, may be as soon as mid -May. They'll be headed north to get online. I think we're waiting for the real thing. We don't really... We don't want anything less, really. But Maureen Killian and Cindy Menigin, mothers of two, say they have no Massachusetts plans, at least not while there's a possibility, they may get the chance to marry right here. We live in Butler, Morris County. We've been together for twenty -eight years. They too are part of the Lambda legal suit here, and

they're still optimistic. Just like their co -plaintiffs, Mark and Dennis. I want my home and my justice to be on New Jersey soil. You think it will happen here in New Jersey? will get married in the courthouse in New Jersey. I'm planning on it. I guess we go to Jersey City. No, we can go to Union City. don't know, maybe Jersey City. But here in New Jersey? Here in New Jersey. But success that spelled gay marriage is still a long way off. The state Supreme Court will still have to rule. No indication now of which way or whether if the court said yes, constitutional amendments could derail the whole thing. In Massachusetts it only took a few days before the debate over an amendment took off, and though there was no agreement reached in a constitutional convention there last week, the legislature set to try again next month. And then there's the move to mount a federal amendment to stop gay marriage in Massachusetts or any other state. And the president who says he wants to defend the

sanctity of marriage between a man and a woman seems about to sign on. We're going to be looking with our guests at the legal implications of this, but that also means the law making implications. Therefore, we want to know what's the public response to this question. Raymond, the American public seems still to be dismayed by this idea of gay marriage. But here in New Jersey there seems to be something different going on. Some perhaps surprisingly high numbers. Star -ledger Eagleton poll shows that 52 % of New Jersey ends favor civil unions, and 43 % say they're okay with gay marriage. And Raymond, when we look at people under 30 years old, the surprise may be greatest. The numbers are really high. Sandy, that last fact has deep implications for the future. And when we come back more on the pros and cons, the likelihood and the politics of same -sex marriage. So stay with us. Music I

think it's great. think people should be able to do what they want to do. I mean, you know, live your lives and let other people live their lives. I think it's disgusting and it's abomination. And whatever judge that's doing it can have no God in him. The witch is on, you know? I don't think there's anything wrong with it. I love people that are homosexuals. I love people that are lesbians. But I don't think they should marry. I think it's contrary to God's word. The people I know who live in same -sex relationships are no different than you and me. It's just a question of who they happen to partner up with. It doesn't bother me. If that's what you want to do, that's what you want to do. You're two human beings. That's the way I look at it. But as we've seen in the furor created by the Massachusetts Supreme Court's ruling, that's not the way it's looked at by everyone. While it's been a cause for celebration in some quarters, the naysayers range from President Bush, who seems poised to endorse a federal constitutional amendment, to the Catholic Church. From national lawmakers on both sides of the aisle to New Jersey's own Assemblyman Michael Patrick Carroll, here to tell Assemblyman Carroll

why gay marriage just makes more than legal sense, Attorney Thomas Prowell, a former member of the Board of the National Lesbian and Gay Law Association, and with us from Nork to tell us how it's all likely to shake out politically, Harvey Fisher, the former executive director of New Jersey Network, now the editor -in -chief of the New Jersey Law Journal. to all of you. Assemblyman Carroll, let me start with you and let me take you to Massachusetts and ask you to give us your quick legal assessment of the ruling by the Massachusetts Supreme Judicial Court. Well, I mean, remember, the Massachusetts Constitution, like that in New Hampshire is ancient, you know, Vermont, and can you imagine Roger Sherman and John Hancock and John Adams sitting around in their powdered wigs, pending a document which they thought would permit or mandate gay marriage? It's ludicrous. But the idea of equal protection isn't a new idea. Equal protection means that you treat people who are similarly situated the same, and by definition, people who can produce children are not the same as those who cannot. Thomas Prowell, do you agree with that distinction? What do you think about Massachusetts? Absolutely not. Constitutions are living, breathing documents, and

they grow with the people. It demeans the constitutional process when we call judges activists. I have to say that judges, I believe, must look at these documents and must make rational choices, must look into these issues very carefully. Thomas, when you use the word activist, you're using a word that was used by the president, which leads me to Harvey and the question of whether or not you think this issue is likely to dominate the upcoming political campaign. Will it be a significant factor? This issue is like a bed of quicksand for the candidates, the presidential candidates. And there's no way, as far as I know, of stopping the Massachusetts decision from going into effect for at least two years, beginning in May, which means that there'll be all sorts of people from all over the country coming into Massachusetts, just as they did in San Francisco recently, to get married there. Well, let me ask you this question, and then since you've staked it out as a potentially important issue, on the one hand, the Democrats could be holding their convention while their possible candidate comes from a state where people are lining up in Boston to get gay

marriages. Sounds like a political issue. On the other hand, the president in his State of the Union message pretty much staked out his territory in terms of a possible constitutional amendment. Which side is more likely to be affected in the presidential election by this question? Well, politicians like to hold up a finger and a wet finger and see how the wind is blowing. It's hard to get a handle on whether we're talking about a breeze or a gale in this particular issue. Mainly because of the divergence of older people being inclined to support a marriage of different couples, and younger people being more ambivalent to gay marriages, and actually kind of supporting that. So it's a very tough issue for the politicians, especially if John Kerry gets the nomination on the Democratic side since he's in Massachusetts. So a one -word answer, are you voting for Bush or Kerry as the candidate most likely to have

significant consequences because of this issue? If you had to give us one or the other? The significant consequences would be more on the president. I'm going to come back to that, but it's an interesting take. I know you're anxious to get into the political phrase. going to keep you at your legal head on for a minute. New Jersey Supreme Court is likely in the next year or so to rule on a comparable issue that's working its way through the state court system. We know that in a formal sense courts do look at what sister states do, even though the language of constitutions may differ, and we know that Supreme Court justice read newspapers that are part of the community in a larger sense. Having said all of that, do you see any likelihood that what the New Jersey Supreme Court does will be affected by what's happened in Massachusetts? I don't know whether it would be affected one way or other. New Jersey Supreme Court is an institution of itself disinclined to let the Constitution stand in the way of doing what it thinks is the right thing. This is a state, remember, where people actually read the New York Times for things other than comic relief. They believe some of the stuff that goes on in that

paper, and so I would be surprised if the New Jersey Supreme Court didn't take an activist stance on this. But coming back to one thing counsel said a minute ago. you're expecting a ruling that's somewhat similar to... Oh, I'd be shocked if they didn't do Let me ask you another question which refines it a little bit. It is one thing for the court to say that domestic partnership might be required. But the Massachusetts court went further and said domestic partnership is not marriage, even though all the legal protections might be there. Do you think our court might go that far? I'd be shocked if it didn't. Wow. Thomas Poldy, are you surprised by his prediction? Not at all. I believe, I would like to think that the justice of the New Jersey Supreme Court will carefully ponder this issue and we'll see what a loss this has been to the gay and lesbian community to not be able to partake of this bundle of rights that civil marriage is. Let me go back to you then and ask in Massachusetts the response of the legislature was to convene an immediate constitutional convention which is still effectively undergoing underway as we talk in the hopes of amending the constitution. Would you see that kind of response as a likelihood in New Jersey? I'd be surprised

if they did. remember constitutional conventions are rare here in New Jersey first and foremost and the process of getting a constitutional amendment to the people for their determination is cumbersome in New Jersey. Would you lead such a movement? I'd happy to. Let me ask Harvey a question and bring him in. Harvey, it seems to me that we're talking now about an area that you've trod often as a political reporter in the past. What do you think is the likely response in New Jersey if as both of our guests have suggested maybe in the next 18 months our state supreme court does something very similar to Massachusetts? I would think that this will tie up the legislature quite a bit but there's going to be, in my mind there's going to be a number of situations occurring before that. Once people start getting married in Massachusetts for the next two years unless there's some way of stopping that before a constitutional amendment is adopted there that means that people from New Jersey who go to Massachusetts come back to New Jersey and expect to have those marriages recognized. There's a section, a provision in the U .S. Constitution for the full faith

and the credit of states. The states have to recognize the laws of other states. There lies a new battleground. Harvey, you're always causing problems. You raise a thorny legal issue. Now, let me see if our guest here can resolve it. Let me start with you, Thomas. The full faith and credit clause is a question that hangs in the air. What does it mean in terms of the obligation of a state like New Jersey, for example, which does not recognize gay marriages in terms of a couple that might get married in June in Massachusetts and come here? Is there an obligation to recognize it under the full faith and credit clause or is that an open question? I certainly believe so. The system of the United States was set up so that there's an even playing field for citizens. What's going to happen when one citizen of, let's say, travels across state line and becomes in this state of unwed? This is going to create a whole host of problems for creditors, for businesses, for children. This is going to wreak havoc on the laws of the United States. Full faith and credit was set up so that we have a level playing Let me do what your law professor would have done and okay, a New Jersey

couple goes to Massachusetts, gets married and comes back to New Jersey. Is New Jersey then obligated in your view to recognize that marriage if our state Supreme Court hasn't yet done what you've predicted? believe they should. I believe that that's the fair and equitable way to resolve this issue. Mr. Pohl very carefully said should, leaving open the possibility that the courts might go another way. The federal courts are looking at that question. Do you think it's an open question? The federal courts would be an interesting question. think the state courts are more problematic and again getting back to our committee of, our kind of sitting constitutional convention across the river there. The simple fact of the matter is is that unless there is a public policy objection that is advanced by a state to recognizing a particular action by another state the full faith and credit law would apply and it seems to me based upon what I think the Supreme Court will do and based upon what the legislature did last year with domestic partnerships it would be a very difficult argument to assert that the policy of New Jersey is to the contrary. So then that leads us to a question which gets us into one of your other barely refuses politics. The president

went 75 % of the way to promising a constitutional amendment by saying if activist judges redefine marriage we're going to have to go to the constitution. What's the likelihood that on the national scale we will be looking at an effort for a constitutional amendment on this question? Well I'd say on the national scale I think it's 100%. I mean 38 states have already adopted precisely the kind of public policy arguments to prevent this sort of thing from happening. And I think at some point or another again the places where these cases have tended to be prosecuted they learn their lesson the way they They learn their lesson in Hawaii and they learn their lesson I think in Alaska where it's easy to change the constitution because as soon as judges went off the reservation the people stepped on them. So they chose states where it's difficult to change the constitution. predictions about what's likely to happen in the near future in the state have been pretty dark in terms of your perspective then is it ultimately your hope that the only way for you to achieve what you want which is a continued distinction between gay marriage and heterosexual marriage is a federal constitutional

amendment? I wish it weren't so. I would like the state of New Jersey to be able to make those determinations for itself. I would speak against such an extension of the right but I think that the obligation rests with the legislature. If we could count upon the courts to abide by their roles and interpret rather than make laws such a thing would not be necessary. Harvey, a federal constitutional amendment is no easy thing. They're all. What do you think is the likelihood given the scenario that Assemblyman Carroll painted and this is one where he's trying to contend with forces that are moving against his position what's the likelihood of a federal constitutional amendment on this question? Well it has some support of Republican leaders in Congress. There's no question about that. They're just waiting for word from the president. The president has to make a choice on the political choice I believe on whether this moving amendment like that getting behind it will gain more support or less support in the election. He has a tough road. He has to somehow solidify the conservative and the religious right that has supported him in the past and he

has to maintain that and if he does not support such an amendment he could lose some of that support. Thomas, I've got to assume that you're part of a larger movement that would be resisting a move towards a constitutional amendment. A, do you think the president is likely to sound the call given the signal in the State of the Union and secondly do you think that ultimately that's an issue on which your side would prevail? Well I understand that all the messages from the White House are now that president will support FMA, Musgrove Federal Marriage Amendment. However, the federal government has no business in defining marriage historically since the beginning of this country that's a state issue. It's a violation of the 10th amendment at the very least and that's why they need to go to the constitutional route. It's just not appropriate. The states have always defined marriage and that's where this definition should be laid. Let me come back to you Assemblyman Carroll. It's very interesting that a ruling by another Supreme Court has in some ways recast the political and

maybe the legal arena in which we find ourselves and whereas we had some controversy about domestic partnership not long and a domestic partnership act that probably doesn't go as far as some others has that changed the fault lines in the political debate in our state legislature? I don't think so. mean the law passed as it passed. mean I think it was clear that the Democrats had a majority I think virtually every Republican was off the reservation. There may be two were on in our house. I think the debate is going to be waged pretty much the same way it always has. Let me ask you this. There's a sense that time changes many things and that things that seem like profound changes at one point are not so profound later on. Harvey let me start with you. Fifteen years from now when we all gather somewhere to bend our elbows with a cup of tea, is there going to be a discussion about this issue still at the forefront of American politics or is it likely to have been resolved earlier on? I suspect it's going to be much of a non -issue. 15 years down the road, 10, 15, 20 years down the road. As we said before, younger people seem to be ambivalent.

They don't necessarily care too much about the issue. They are going to be the dominant force in the election 15 years from now. Well you want to take a look at what happened in Vermont actually when it passed its civil union enacted its civil union law. There was a great uproar over that. Many of the Democrats and the legislature there were ousted from office. The governor almost lost. Harvey let me get... And now if I may just for a minute... Let me get a similar response from Tom Pohl. Is this really a series of waves that will inevitably lead a flattened landscape at an issue that's no longer controversial any of you? I believe it will. I believe it will take some time. I don't think 15 years is the answer but let me just say New Jersey has always been at the vanguard of discrimination protections. And that's what's beautiful about the state. I'm proud that I was born here and grew up here. And that's a wonderful thing and I think we should continue that. Let me come to Assemblyman Carroll and say you're not one who I've seen lose many battles but my sense from this discussion

is that the tide is moving against your position. Is that true? I think it is. I think the left has been very good about defining its issues. It always amazes me to have a progressive rediscovered federalism but the fact of the matter is that the nature of marriage is defined by the ability to have kids. And once we get to set that agenda to redefine the question So if people are over 80 you know very well that the law presumes that every man is capable of siring and every woman is capable of bearing a child. Those relationships are presumptively capable of bearing children. So in the last 20 seconds tell me whether 15 years from now we'll still be talking about this. Will it be a dead issue? Nationally perhaps I think state and New Jersey probably a dead issue. Interesting prediction. I'm going to have all of you back in 15 years and maybe before that at this time it's time for us to say that's it for this edition of Due Process. But we're going to be back next week with another in -depth look at law and social justice. You'll find us here each Sunday morning at 9 .30, Sunday evening at 6 .30 and Tuesday night at 11 .30. For Sandy King and all of us here at Due Process I'm Raymond Brown. Thanks

for watching. Same sex marriage should be allowed all across the board. It doesn't phase me one way or the other as long as they don't bother me. What's the difference? think that marriage is biblical and so it doesn't fit with descriptions. But if people want to be partners, have all the benefits that go along with being partners, I don't have a problem with that. What people do with their love life, you know and what makes them happy shouldn't be an issue. As far as legalizing gay marriages to each his own but I think they are just more prevalent things in the United States as in the whole world that we need to concentrate on. I don't know if it will come to Jersey I think it should. I think that Massachusetts really they were

taking a step in the right direction and setting a tone that I think that people across the country should do some hard thinking about. Major funding for Due Process was made possible by the New Jersey State Bar Foundation committed to educating the public about the law. Additional funding was provided by Lawyers Diary and Manual. Thank .

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