Issue:  Vol. 48 / No. 12 / 22 March 2018

End of year sees activity on same-sex unions


New Jersey Governor Jon Corzine
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There was a surge of activity on same-sex unions in the last days of December, much of it initiated by governors.

The governor of New Jersey signed a civil union law into effect December 21, making the Garden State the third state to adopt legal recognition of civil unions.

The governor of Alaska, on December 20, called for a voter referendum on whether to amend the state constitution to strip gay state employees of equal benefits for their same-sex partners.

And the governor of Oregon threw his support behind a December 21 task force report that recommends equal benefits to same-sex couples and a law prohibiting discrimination based on sexual orientation.

New Jersey

In New Jersey, the civil union legislation was hurried through the Democrat-controlled legislature in December in response to an October 25 ruling from the state Supreme Court. In Lewis v. Harris, a lawsuit brought by Lambda Legal Defense and Education Fund, the court said the state constitution's promise of equal protection requires that same-sex couples be able to enjoy the same benefits of marriage as heterosexual couples. But, like the Vermont Supreme Court did in 1999, the majority on the New Jersey court said it was up to the legislature to determine how those benefits are delivered. And the New Jersey court went a step further and said it might be satisfied with the creation of some "parallel" structure called something other than marriage.

Governor Jon Corzine, a Democrat, signed the legislation, saying, "We must recognize that many gay and lesbian couples in New Jersey are in committed relationships and deserve the same benefits and rights as every other family in this state. I believe very fundamentally in equal protection under the law and this legislation is about meeting that basic responsibility and honoring the commitments that individuals have made to each other."

Gay activists in the state expressed mixed feelings – satisfaction about having equal benefits but dismay over the separate venue of their provision. They seemed heartened, though, by the comments of several state lawmakers during the legislative process that they intend to push for full marriage equality in the future.


As New Jersey and other states are illustrating, when it comes to same-sex marriage rights, there is a sort of "till death do we clash" mentality. Alaska continues to be a prime example. Voters approved a constitutional amendment to limit marriage to heterosexual couples in 1998; the American Civil Liberties Union filed a lawsuit in 1999; the state Supreme Court ruled that state employees with same-sex partners should get the same benefits as state employees with heterosexual spouses. The legislature passed a bill to prohibit state officials from complying with the order; the state Supreme Court directed the state to comply or the court would force compliance; and the outgoing governor passed the buck to the incoming governor.

On December 20, Alaska's first woman governor, Republican Sarah Palin, said she would comply with the order from the state Supreme Court that the state offer state employees with same-sex partners the same benefits it offers state employees with heterosexual spouses. But she called for a special election in April to ask voters to weigh in on a proposal to amend the state constitution again – this time to take away benefits for same-sex partners of state employees.


The governor of Oregon, meanwhile, has a different view on how gay people should be treated under the law. Democratic Governor Ted Kulongoski, who recently served on the state Supreme Court, threw his full support behind two key recommendations from his Task Force on Equality report. The report called for the state to both "recognize" same-sex relationships and to prohibit discrimination based on sexual orientation. The task force report says that the panel "believes that adoption of a civil union law is the appropriate and logical extension" of a law to prohibit sexual orientation discrimination. And a statewide law was wise, it said, to remedy what is currently a "patchwork of local ordinances" to protect against sexual orientation discrimination.

"I look forward to working with members of the legislature to move these recommendations forward," said Kulongoski.

The task force in Oregon and the New Jersey Supreme Court both acknowledged they were influenced by actions taken by the Vermont legislature. In 2000, the Vermont legislature was the first to create and adopt the entity known as a "civil union" and, at the time, it was hailed by many gay civil rights activists as a step toward equality. But now, six years later, it is considered a step short of equality for most gay activists and a step too close to marriage for opponents of equal rights for gays. Nevertheless, more state legislatures now appear ready to build this parallel track toward equal protection in order to keep gay couples off the "marriage" train.

The Connecticut legislature approved a civil union law in 2005, one year after Gay & Lesbian Advocates & Defenders filed a lawsuit seeking equal rights to marriage. That case will be argued before the state supreme court in the next few months.

Only Massachusetts has legally mandated that same-sex couples be allowed to receive marriage licenses the same as heterosexual couples; that occurred in response to a court ruling in 2003 and was enforced beginning in 2004.

Meanwhile, in other marriage related news:

á The California Supreme Court agreed last week to hear a consolidated group of cases challenging the state's refusal to issue marriage licenses to same-sex couples. The litigation was initiated in 2004 when San Francisco Mayor Gavin Newsom defied a 2000 statewide initiative limiting marriage to heterosexual couples. He directed city clerks to issue licenses to same-sex couples and the state ordered them to stop. (The state legislature later approved a gender-neutral marriage bill but Governor Arnold Schwarzenegger vetoed it.) The case will likely be heard sometime in the spring.

á The Massachusetts Supreme Judicial Court heard arguments in a lawsuit by Republican Governor Mitt Romney and a group of conservative state legislators seeking the court's help in forcing the legislature to vote on a proposed 2008 constitutional amendment to ban same-sex marriage. On Wednesday, December 27, the court refused to order the legislature to vote on the anti-gay amendment. In its 11-page ruling, the court said it had no authority to order lawmakers to vote on the issue.

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