PACKET EDITORIAL, March 16
By: Packet Editorial
That letter state Attorney General Peter Harvey sent out last week to officials in Asbury Park, ordering them to stop issuing marriage licenses to applicants of the same sex, probably has a lot of mayors around New Jersey breathing a big sigh of relief.
Same-sex marriage has become such a hot-button, knee-jerk issue lately that most small-town mayors would gladly defer to a higher authority (in the civil as opposed to religious realm) rather than embrace one side or the other in this headline-grabbing brouhaha and risk alienating a goodly portion of their constituency. Now, the mayors can turn same-sex couples away with a sympathetic I-wish-I-could-do-it smile and a convenient the-attorney-general-told-me-I-couldn’t shrug.
But the mayors’ relief may be short-lived. It turns out the attorney general could be standing on some mushy legal ground here.
Mr. Harvey acknowledges there is nothing in state law that expressly defines marriage as a union between a man and a woman, nor is there any statute that specifically prohibits same-sex marriages. Moreover, New Jersey is not among the 38 states that have adopted so-called "defense of marriage" acts; the only kind of marriage expressly prohibited by law in this state is a union between certain close blood relatives.
In the absence of legislation specifically outlawing same-sex marriages, Mr. Harvey has divined a more creative rationale for his pronouncement. Noting that the state’s marriage laws were enacted in 1912 "at a time when government-sanctioned, same-sex marriage did not exist anywhere in the country," the attorney general reasons that "legislative silence" on this subject "is not evidence of the authorization of such unions."
This seems to us a mighty thin thread from which to stitch together a tight-knit legal doctrine. In fact, we can see this interpretation unraveling as a case brought by the Lambda Legal Defense and Education Fund on behalf of seven gay couples in Mercer County works its way through the state court system. Last November, Superior Court Judge Linda Feinberg ruled that same-sex couples are not entitled to marry under the equal protection clause of the state constitution. This case is now before the Appellate Division.
It would not be at all surprising, given the extremely narrow scope of New Jersey’s 92-year-old marriage laws, if a higher court were to come to a different conclusion from Mr. Harvey interpreting that legislative silence on same-sex marriage is not evidence of the prohibition of such unions. Unless, of course, the Legislature steps in and decides to settle the whole matter by updating and amending the law to specifically prohibit or authorize same-sex marriages. But this strikes us as highly improbable, given that most legislators are even more reluctant than mayors to dive into stormy political seas unless they absolutely have to. As long as the courts are providing refuge, we suspect the Senate and Assembly will stay about as far away from this raging controversy as they possibly can.
And really, when you come right down to it, you have to wonder whether this issue is really worth all the fuss and fury it has generated. It seems to us it doesn’t matter whether one calls the contract between consenting adults a "marriage," a "civil union" or a "domestic partnership" as long as the law treats these arrangements equally. After all, the real goal is to ensure that same-sex partners are afforded all the rights, privileges and benefits as opposite-sex spouses. If this can be achieved and, in recent years, great strides have been made toward this worthy goal who cares what they’re called? The most important thing here is for reformers not to be distracted by semantics but rather, to borrow a slogan from an earlier equal-rights movement, to keep their eyes on the prize.