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Gay marriage can begin in New Jersey, for now, state's top court rules (+video)

The New Jersey Supreme Court said Friday that same-sex couples in the state could wed, starting Monday, while an appeal to same-sex marriage is pending. The court's sharp tone indicates that the justices are likely, in the end, to affirm gay marriage rights for good.

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In striking down the law, the US Supreme Court said that it is up to the states to define who is married and that the federal government cannot deny equal benefits to same-sex couples who are lawfully married in their home states.

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Lawyers in the New Jersey case applied that holding with an interesting twist. The US Supreme Court case involved married same-sex couples, but not those in civil unions. Federal agencies have continued to deny federal benefits to civil union couples.

Nonetheless, lawyers for the same-sex couples argued that because the New Jersey constitution requires that civil union spouses be treated equally with opposite-sex couples, the constitution requires that they be able to receive the same federal benefits.

The lawyers argued that the state must make good on the demands of the New Jersey constitution. To do so they would have to allow same-sex couples to marry.

Last month, Superior Court Judge Mary Jacobson agreed, finding that the state constitution required that result. She did not stop there. She ordered the state to permit same-sex marriages – beginning Oct. 21.

The state appealed the decision directly to the state Supreme Court. Acting Attorney General John Hoffman also asked the court to postpone the Oct. 21 deadline. He had argued that because the underlying issues in the case are complex and unsettled, the court should wait to decide the pending case before allowing same-sex marriages to take place in New Jersey.

“When novel constitutional issues with highly significant policy considerations, far-reaching implications, and countervailing principles are involved, a court should make every effort to facilitate meaningful appellate review,” he wrote in his brief. 

The New Jersey justices brushed aside Mr. Hoffman’s points. “The state has advanced a number of arguments, but none of them overcome this reality: same-sex couples who cannot marry are not treated equally under the law today. The harm to them is real, not abstract or speculative,” their decision said.

Hoffman had also argued that once the court allowed same-sex marriages, nothing could undo them. In rejecting that argument, the justices noted that the California Supreme Court had acted to nullify some 4,000 marriages that had been performed in that state without proper legal authorization.

The New Jersey high court concluded that same-sex couples are guaranteed equal treatment and that the constitutional requirement is not being met. The justices said the consequences could be severe. “If a civil-union partner passes away while a stay is in place, his or her surviving partner and any children will forever be denied federal marital protections,” they wrote.

The fight for same-sex marriage isn’t just in the courts in New Jersey. The state legislature passed a same-sex marriage bill in 2012, but Gov. Chris Christie (R) vetoed it.

Gay rights activists are working to assemble enough votes to override the veto by a Jan. 14 deadline.

The state Supreme Court case, Garden State Equality v. Dow, is set for argument on Jan. 6 or 7. 

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