N.J. State high court grills lawyers on same-sex marriage issues

By GEOFF MULVIHILL

TRENTON, N.J. (AP) _ New Jersey was one of the first states to pass a law that specifically bans discrimination against gays and lesbians. It places no barriers on same-sex couples seeking to adopt children and offers domestic partnerships that afford gay couples some of the legal benefits of marriage.

Those facts were central to some of the key points made Wednesday to New Jersey's Supreme Court by lawyers arguing whether to allow gay marriage.

In the case, known as Lewis v. Harris, seven longtime gay couples sued New Jersey in 2002, arguing that preventing them from marrying violates the state Constitution.

Nationally, only Massachusetts allows same-sex marriage. Two other states - Hawaii and Vermont - have found that gay couples have the rights to the same legal treatment as straight couples.

The high court's decision is not expected for months.

On Wednesday, the lawyer representing New Jersey made it clear that while the state is pushing against courts deciding the question of same-sex marriage, it was not embracing arguments made in briefs filed by several conservative groups. Those groups said same-sex marriage should not be allowed because it would harm society and that marriage is not a right, but rather a mechanism to steer people toward raising children in traditional families.

State Deputy Attorney General Patrick DeAlmeida said that it should be the Legislature, not the seven-member court, that decides whether to extend marriage rights to gays. He said that's particularly true in a state where lawmakers already have offered protections to gays and lesbians.

"The court is at its least powerful position when the other branches have addressed an issue," he said.

Chief Justice Deborah T. Poritz said there are problems with that argument. "It's not as if the institution of marriage hasn't change in rather dramatic ways," she said.

David Buckell, the lawyer representing the seven couples, said that it's up to courts to make sure laws are applied equally _ and that gay couples should have the same access to marriage as opposite-sex couples.

He said that even if the court does not view marriage as a fundamental right, it should still allow same-sex marriage as a matter of equality.

Associate Justice Barry T. Albin referred to Vermont, one of the three places where state high courts have found that gay couples should have the benefits of marriage. There, lawmakers reacted by allowing civil unions, which grant same-sex couples the rights of marriage but do not call it marriage.

He asked Buckell about what would happen if New Jersey passed a similar law. "Would you still be here today?" he asked.

Buckell said he would.

He said that Vermont's law, like domestic partnerships in New Jersey, create a separate legal structure "that tells individuals their relationships are unworthy."

Lawyers on both sides of the issue said it was impossible to decipher from the judges' questions which way the court might be leaning.

Nevertheless, gay rights leaders said afterward that they were close to declaring victory.

"There is nothing like knowing that you're close to a win," said Alicia Toby-Heath, one of the plaintiffs. "There's nothing like knowing your life matters in a world that so often says it doesn't."

Len Deo, president of the New Jersey Family Policy Council, which opposes same-sex marriage, noted that the plaintiffs were also upbeat about lower court arguments and ultimately lost. He pointed out that the judges asked about issues raised in friend-of-the-court briefs submitted by advocacy groups like his.

Both supporters and opponents of gay marriage held rallies Wednesday outside the building housing the high court.

Those sides will surely be heard from again. Both sides have said they'll press on with their cause even if the court rules against them.

___

Associated Press Writer Chris Newmarker in Trenton contributed to this report.

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