TRENTON – A bill introduced this past February that codifies same-sex marriage into state statutes was advanced out of the New Jersey Assembly Judiciary Committee Thursday on a 4-0 vote. New Jersey Assembly Bill 5367 reads in part “laws concerning marriage and civil union shall be read with gender neutral intent.”
Assemblymember Raj Mukherji (D-Hudson), the committee chair, told Politico; “The statutes of our state have never caught up to the court decisions […] which no longer treated same-sex couples as second class citizens. So it’s important that we take this step and ensure that our law enshrines these rights.”
The legislation’s author, Somerset lawyer Bill Singer testified to the committee noting; “Since that decision, [Obergefell v. Hodges, 576 U.S. 644] at least two or three of the present justices of the U.S. Supreme Court have questioned that decision and called for its reversal, where does that leave same sex couples in New Jersey? Their right to marry hangs from the slender thread of a single decision by a trial court judge. That’s precarious.”
Alarms bells about a reversal of Obergefell v. Hodges, were sounded by some LGBTQ+ legal groups after the U.S. Supreme Court heard arguments in the case brought by the state of Mississippi defending its law banning abortion after 15 weeks, Dobbs v. Jackson Women’s Health Organization.
Florida State University law professor Mary Ziegler, appearing on NPR’s ‘Heard on All Things Considered,’ told host Mary Louise Kelly that there was a basis for concern on whether the court would actually overrule its precedents in other cases based on the questions and statements raised during the hearing by the conservative members of the court.
Asked by Kelly if she saw a legal door opening Ziegler affirmed that she did. Kelly then asked her; “Them taking up cases to do with that. What about same-sex marriage?”
Ziegler answered, “Yeah, same-sex marriage is definitely a candidate. Justices Alito and Thomas have in passing mentioned in dicta that they think it might be worth revisiting Obergefell v. Hodges – the same-sex marriage decision.
“And I think it’s fair to say that in the sort of panoply of culture war issues, that rights for same-sex couples and sexual orientation are still among the most contested, even though certainly same-sex marriage is more subtle than it was and than abortion was.
I think that certainly the sort of balance between LGBTIQ rights and religious liberty writ large is a very much alive issue, and I think some states may try to test the boundaries with Obergefell, particularly knowing that they have a few justices potentially willing to go there with them.”
Politico reported that an earlier bill to legalise same-sex marriage had stated no religious group or institution “shall be compelled to provide space, services, advantages, goods, or privileges related to” marriage that is in violation of their beliefs and indemnified them from lawsuits. The Senate pulled the bill and has not acted on it since.
The bill that advanced Thursday does not include any religious exemptions, effectively leaving it up to courts.
One of those opposed to the law is a self-labeled ‘ex-gay’ conservative Christian pastor Gregory Quinlan who testified against the law before the committee.
“No one is born gay. The science is zero. And so for that reason there is no justification to codify homosexual marriage or any of the sundry identities that have been put out over the last number of years,” Quinlan said.
That brought a sharp rebuke from the committee chair who said; “I think your comments are three fries short of a Happy Meal.”
“Why would you be so hateful towards my comments?” Quinlan said.
“I respect your right to speak but I find your comments to be abhorrent and hateful,” Mukherji shot back.
The New Jersey State Senate President Steve Sweeney publicly stated that he would like to see a quick vote in the lower house and that he would like to pass the bill in the upper house on Dec. 20.
Sweeney told Politico he became alarmed after it became clear to him that the U.S. Supreme Court would likely “gut” Roe v. Wade, declaring, “If they can do that, same-sex marriage can be the next thing.”
Shannon Minter, the Legal Director for the National Center for Lesbian Rights, a national LGBTQ+ legal organization which represented three same-sex couples from Tennessee, whose case was heard by the U.S. Supreme Court along with Obergefell and two other cases is urging caution in how people interpret the Mississippi oral arguments and remarks made by the justices.
“We should be cautious about taking the bait from anti-LGBTQ groups who falsely argue that if the Supreme Court reverses or undermines Roe v. Wade, they are likely to reverse or undermine Obergefell or Lawrence. In fact, that is highly unlikely, as the argument in Dobbs itself showed,” he said.
“The only reason Justice Kavanaugh mentioned Obergefell and Lawrence, along with Brown v. Board of Education, was to cite them as examples of cases in which the Supreme Court clearly did the right thing. All of those decisions rely at least as strongly on equal protection as on fundamental rights, and even this extremely conservative supreme court has not questioned the foundational role of equal protection in our nation’s constitutional law,” Minter stressed.
New Jersey’s lawmakers are more sanguine in their assessment but want to make certain that the state’s same-sex couples are protected in law just in case an Assemblymember told the Blade on background.