General Assembly approves measure; Senate approval, governor’s signature expected
Elizabeth Braun was in college three years ago when her partner of three years, Sarah Weiss, who was five months pregnant, was hit by a drunk driver.
Weiss’ parents were called to the hospital emergency room, but they did not approve of their daughter’s lesbian relationship, so they chose not to contact Braun. Several hours after her lover was rushed to the hospital, Elizabeth was finally contacted by a friend of Sarah’s sister. When Elizabeth dashed out of the house she shared with Elizabeth, she forgot the health care proxy that the couple’s attorney had drawn up.
Arriving at the hospital, Elizabeth realized her mistake and called a friend to fetch the document from her home. During the ten minutes she waited for the friend to arrive, Elizabeth was barred from entering the emergency room by Sarah’s parents. Once the health proxy arrived, Elizabeth spent another five minutes arguing with hospital staff about the document’s validity. At that point, Sarah died, Elizabeth never having seen her.
Elizabeth was barred from the funeral her lover’s parents planned for Sarah. Three days after Sarah, who did not have a will, died, her parents showed up at the apartment the couple shared and cleared all the furniture out. Cash-poor as a student, Elizabeth was unable to challenge the actions taken by Sarah’s parents. Instead, she and other friends of the couple planned their own memorial service for Sarah.
Legislation passed December 15 by the New Jersey General Assembly and pending before the state Senate would have saved Braun the torment she suffered from not having access to her lover at the moment of her death. Braun, now affiliated with the Gay Activist Alliance of Morris County and a member of the benefits task force of the New Jersey Lesbian and Gay Coalition (NJLGC), appeared before a legislative committee to testify in favor of the proposed domestic partnership law and is prepared to do so again as the Senate completes consideration of the law before a January 12 deadline.
Asked how she felt standing up before the state legislature to advocate on an issue that has such enormous personal resonance for her, Braun told Gay City News, “It was one of the most difficult things I have done in my life.” She hastened to add, however, “When the bill went through the Assembly, I felt empowered.”
By all accounts, Braun is likely to feel even more empowered in January. The domestic partnership law also cleared its first Senate hurdle this week, the Judiciary Committee, and is guaranteed a vote on the floor, since both the Democratic and Republican co-leaders of the evenly divided 80-member chamber support the bill.
“I am confident that we will pass the bill,” said Senator John Adler, a Cherry Hill Democrat who co-chairs the Judiciary Committee. “I know of at least three Republican votes and we will get most of the Democrats. I would be astounded if we did not get at least 18 of the 20.”
Twenty-one votes are needed for the measure to clear the 40-member Senate.
Loretta Weinberg, the Teaneck Democratic assemblymember who sponsored legislation, echoed Adler’s optimism.
“I am fairly confident,” she told Gay City News, “though I’ve learned in the legislative arena never to say absolutely.”
On December 11, Governor James McGreevey, a Democrat who opposes same-sex marriage rights, issued a written statement saying, “The Domestic Partnership Act would guarantee individuals, who have entered into an enduring, emotionally, and financially committed relationship, the fundamental rights they ought to have… I look forwarding to signing a bill that ensures these basic rights.”
With victory seemingly at hand, gay and lesbian residents of the Garden State will focus on what the new legislation delivers, and what work remains to be done.
This is a first step, but an important first step,” said Laura Pople, president of NJLGC, a statewide umbrella group that includes 20 lesbian, gay, bisexual, transgender, HIV/AIDS, and allied organizations. “We got past the debate about whether same-sex relationships should have any legal recognition, to prove that we are something other than legal strangers. Even as limited as the number of rights incorporated in this bill are, this puts us past that critical first step.”
According to Steven Goldstein, New Jersey campaign manager for the Lambda Legal Defense and Education Fund, the domestic partnership law provides several key legal protections for lesbian and gay couples, including the right to visit a sick partner in the hospital and make medical decisions for that partner, exemption from state inheritance taxes upon a partner’s death, and the right to register a partnership with the state along with procedures for dissolving a partnership.
In terms of domestic partner benefits, the impact of the legislation varies depending on the employer. State employees will receive benefits for gay or lesbian partners equivalent to those provided to spouses. The law does not mandate that local governments or private sector firms offer domestic partner benefits, but if they are offered by an individual employer, they must be provided on the same terms as those offered to spouses.
According to Pople, Goldstein, and others, the major advance in terms of workplace benefits comes in the mandate placed on insurance companies that provide small group policies––those purchased by companies with 50 employees or less. The insurance industry will be required to offer domestic partnership options, currently unavailable in the New Jersey market, to all employer purchasers. Consequently, small employers willing, but so far unable, to give employees domestic partner benefits will now be able to do so.
Kathy O’Brien, a NJLGC member who works for the Hyacinth AIDS Foundation, headquartered in New Brunswick and serving the HIV/AIDS population statewide, said her company has to date been frozen out of the domestic partnership insurance market. Under the new law, Hyacinth will be able to purchase insurance to protect their gay and lesbian employees.
Marty Finkle said that when he left ATT to go to work for Scottwork, a worldwide negotiations consulting firm that employees only ten people in New Jersey, he was unable to retain the domestic partnership policy he had with Aetna. The insurance giant offered such a policy to ATT, but refused a request by Scottwork’s president to offer it for a ten-person group.
According to Goldstein, the New Jersey law would be the nation’s third strongest, after Vermont and the newly enacted California statue, but stronger than the law in Hawaii, the only other state to have enacted a comprehensive domestic partnership policy.
That is not to say that the measure does not have its gay critics. George DeCarlo is a Green Party member who lives in Berkeley Heights and ran unsuccessfully for the General Assembly in November. He charged that the bill fails to cover other key partnership concerns including family sickness and bereavement leave, funeral decisions, the right to sue for wrongful death of a partner, and apartment tenancy rights. He expressed concern that New Jersey’s gay and lesbian community will assume they have won a broader array of rights than they have and the pressure will be off of legislators to do more.
DeCarlo also criticized a compromise that made domestic partnership rights available only to those straight couples 62 and older.
Pople acknowledged that there are significant issues left unaddressed by the legislation, but said that in winning a first round, advocates focused on the issues of greatest concern to the community. In tandem with Lambda Legal, the NJLGC held town meetings across the state during the past year that drew thousands of participants and extensive coverage by local print media.
“We focused on those issues that the community identified as the hot one or two buttons,” she said. “One of the first things we hear about are hospitals. That always percolated to the top. Financially, the inheritance tax relief was important. And we heard a lot about health care.”
Pople argued that the incremental approach has borne fruit elsewhere.
“We have followed the California example,” she explained. “They got their first bill a few years ago and then passed the comprehensive one this year.”
Both Adler and Weinberg acknowledged that more work needs to be done.
“This is by no means a perfect bill,” Weinberg said. “I wouldn’t be surprised to see a lot more discussion as we move forward.”
“Some of us believe that this will be the first of several discussions,” Adler said. “As our views of society evolve, we have to be open to accommodating the needs of all people, gays and lesbians, just as we have done with African Americans and with women in the past.”
Neither Adler nor Weinberg would state their position of same-sex marriage.
On the issue of an age threshold for straight couples being eligible for domestic partnership rights, Adler noted that marriage is available to them, unlike same-sex couples, and that older heterosexuals were folded into the bill because, particularly if they are widowed, they might face financial disincentives to re-marriage, such as loss of a pension annuity.
For Lambda Legal and other gay advocates in New Jersey, the push for a domestic partnership law is part of a broader Supporting All Roads to Justice campaign focused not only the legislature in Trenton but also on the state supreme court. In June 2002, Lambda filed a lawsuit seeking same-sex marriage rights under the New Jersey constitution on behalf of seven plaintiff couples. The legal theory underpinning Lambda’s challenge is based in the state Constitution’s guarantee of the right to privacy that the courts have ruled include the right to marry and in its guarantee of equal protection.
The Lambda lawsuit was dismissed at the district level earlier this fall, but an appeal is being planned. Lambda sees the New Jersey judiciary—which has been a strong supporter of gay rights issues from co-parent adoption to James Dale’s challenge to the Boy Scouts of America—as a promising venue to try to build on the recent marriage victory in Massachusetts.
Weinberg, for one, thinks Lambda is on to something.
“I think New Jersey was a good place for Lambda to file their case,” she said.