BY PAUL SCHINDLER “Hoboken, we have a problem.” That was Steven Goldstein's capsule summary of the first interim report released February 19 by the New Jersey Civil Union Review Commission. Goldstein, the executive director of Garden State Equality (GSE), New Jersey's LGBT civil rights lobby, is vice chairman of the Commission, established to monitor whether civil unions are effective in delivering same-sex couples all the benefits and responsibilities of marriage under state law.
Civil unions were enacted in December 2006, two months after the New Jersey Supreme Court ruled that the state must provide same-sex couples with all the rights and benefits of civil marriage, whether in name or otherwise. When it became apparent that the Legislature would opt for civil unions rather than full marriage equality, GSE was successful in inserting a provision into that law establishing the Commission with responsibility for issuing semi-annual reports.
“Hoboken, we have a problem.” That was Garden State Equality's capsule summary of a report from the New Jersey Civil Union Review Commission, established to monitor whether same-sex couples are gaining all the benefits of marriage under state law.
That maneuver may well be bearing fruit in the drive for same-sex civil marriage rights, with the Commission, made up of both state government officials and public members, issuing a 21-page report spelling out ten separate areas in which the civil union law falls short of the state Supreme Court mandate.
The report is based on eight hours of hearings over several occasions from last summer until January of this year, with 96 witnesses appearing. According to GSE, of the roughly 2,400 civil union couples in New Jersey, it has heard from nearly 600 who say they've experienced problems getting equal treatment under the law.
The Commission's lead finding was that some employers are hiding behind ERISA, the federal law that governs companies that “self-insure” to cover their employee health costs, to deny civil union partners the same benefits given married couples, while married gay and lesbian couples in Massachusetts are generally treated equitably.
The report also laid out the ways in which the general public remains uncertain as to what civil union status means, leading to problems at institutions such as hospitals; the negative impact the statute has on LGBT youth and the children of same-sex couples; the particularly disparate impact the law has on people of color communities; and how civil unions do nothing to solve the legal limbo faced by couples that include a transgendered partner.
Testifying before the Commission, Lynn Fontaine Newsome, president of the New Jersey State Bar Association, said, “We believe that the civil union law created a burdensome and flawed statutory scheme that fails to afford same-sex couples the same rights and remedies provided to heterosexual couples… From the Bar's perspective, civil unions are a failed experiment.”
Arguing that the report is evidence that the 2006 law “segregates, discriminates [against], and humiliates the very group it is supposed to help,” Goldstein characterized it as “the largest disaster in social engineering since the introduction of the new Coke.”
The flip side, of course, is that the results, in GSE's view, bolster the demand for full marriage rights. “We're closer to marriage equality than we've ever been,” Goldstein said.
In their reactions to the Commission report, New Jersey's three most powerful elected officials said nothing to directly contradict Goldstein's optimism.
In a written statement, Democratic Governor Jon Corzine said, “The report does raise significant concerns about whether the law has effectively granted same-sex couples the same rights and benefits of every other family in the State.”
Richard Codey, the Democratic Senate president from West Orange, said of the report, “They've raised a number of red flags concerning the implementation of the law and its ability to provide true equality for same-sex couples.”
Goldstein noted that neither Corzine nor Codey- nor Brooklawn Democratic Assembly Speaker Joseph Roberts, who also acknowledged the problems uncovered in the Commission's report – attempted any argument this week that the law had not been given enough time to work.
In fact, the report specifically pointed to testimony the Commission heard from an expert on how the Vermont civil union law has fared, who testified that the problems identified in New Jersey persist in that state eight years after enactment. Vermont has recently established a commission to study the effectiveness of its statute.
The written statements issued by Corzine, Codey, and Roberts, however, likely understate the impact that the Commission report will have on the prospects for a marriage equality bill becoming New Jersey law. In response to reporters' questions on February 19, Corzine reiterated a statement he first made at a gathering with gay and lesbian journalists in Newark last fall – that he would sign a marriage bill if it landed on his desk, but clearly prefers that it not happen before this November's election.
“I think we're in the process of evolution,” the governor said at the Newark event last September 9. “I don't know whether it's three years or five years, but in some time frame in the not so distant future I suspect that New Jersey will embrace the moniker of gay marriage or same-sex marriage.”
Then, acknowledging the way Republicans in past campaigns have used gay marriage as a wedge issue, Corzine added, “I don't think I'd like to see this debated in a presidential election year… I think we can move very quickly here, but I think we ought to do it in a way, by the way, that doesn't cause setbacks everywhere else in the country, that doesn't make it a tool for people who I believe start unjust wars or try to take away children's health insurance or aren't committed to enforcing hate crimes laws and all kinds of other things.”
With this formulation, Corzine, who has refrained from specifically stating affirmative support for gay marriage, clearly signaled that he is willing to embrace it as early as November 5 of this year. The governor, last September, waved away any concern he might have about facing the voters again when he comes up for a potential reelection bid in November 2009.
Codey and Roberts are even further down the marriage equality road than Corzine. In December 2006, as the Legislature scrambled to nail down a civil union law, Jason Butkowski, a spokesman for Codey, told Gay City News, “We don't see this at all as an end point. We want to try out civil unions and look at the pros and cons for gay and lesbian couples. The senator has said all along that he personally supports marriage, but doesn't think there is sufficient support at this time.”
By that time Roberts was also on board with marriage equality. During the 2006 civil union debate, Reed Gusciora, an out gay Democratic assemblyman who represents Princeton and Trenton, told this newspaper that the speaker “would post the bill if he senses there is enough support.”
So, is there enough support? According to Goldstein, marriage equality supporters are very, very close in the Democratic-controlled Legislature. A bill would require 21 votes in the 40-member Senate (not just a majority of those voting) and GSE claims somewhere between 17 and 19. In the 80-member Assembly, where 41 votes are needed, the group has identified between 37 and 39 votes.
Goldstein voiced confidence that victory is possible during the current session of the Legislature, which lasts until December 31, 2009 – the final two months a lame-duck session following statewide elections. But GSE will not be any more specific in its predictions.
Corzine's comments about the presidential election suggest that the Legislature is unlikely to act before November 2008. One question is whether Garden State Equality will press for a vote before then, based on the Commission's report this week. The other critical issue is whether the Legislature and the governor truly have the grit to take the issue up before the November 2009 state elections or might try to boot it until the lame-duck session.
Goldstein said his group will not let up in its pressure to bring a bill to the floor of the Legislature as soon as possible. Still, the measure, which is being tinkered with to account for how a civil union could be converted into marriage, has not yet been re-introduced in the current session by the lead Senate sponsor, Democrat Loretta Weinberg of Teaneck.
Both Weinberg and Assemblyman Gusciora were out of Trenton as Gay City News went to press, so neither was available to comment on the bill's prospects this year.
From GSE's perspective, the marriage equality issue has little political downside for Trenton politicians. An August 2007 Zogby poll of New Jersey voters, commissioned by the group, found margins of more than 60 percent on three separate critical issues – whether they would be okay with the Legislature upgrading civil unions to marriage; whether legislators would be free from punishment at the polls if they voted yes; and if they expected marriage equality to be a reality in the next several years.
Significantly, the poll found that by a narrow margin voters support same-sex marriage, even when offered the alternative of instead stating a preference for civil unions.
The New Jersey Family Policy Council, which has taken the lead in opposing marriage equality, testified at the Commission hearings, but did not return Gay City News' request for comment.
If Garden State Equality's bead on the pulse of Trenton is accurate, marriage equality could be on the table in New Jersey in 2009. That is the year when marriage advocates in New York hope to have a Democratic majority in the State Senate to move Governor Eliot Spitzer's marriage bill that has already passed the Democratic Assembly.
Maybe a little trans-Hudson rivalry will do everyone good.
The entire Commission report can be found at http://www.nj.gov/oag/dcr/curc.html. Garden State Equality's documentation of the failures of civil unions can be found at Civil Unions Don't Work.
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