Jersey State Commission Urges Marriage Equality Now

GayCityNews - Jersey State Commission Urges Marriage Equality Now

By: PAUL SCHINDLER
12/10/2008



In a report comprehensive in scope and sweeping in its conclusions, an official government commission in New Jersey recommended that the Legislature change state law "to allow same-sex couples to marry" and to do so "expeditiously because any delay in marriage equality will harm all the people of New Jersey."

The findings, released on the morning of December 10 and which ran to 45 pages plus appendices, were issued in the "final report" of the New Jersey Civil Union Review Commission, a 13-member body established when civil unions were enacted in late 2006. The Legislature adopted the civil union law in response to a State Supreme Court ruling that October mandating that New Jersey afford same-sex couples all the rights and benefits of marriage.


Gay City News received an advance copy of the report on December 9.

The Review Commission was created to monitor the effectiveness of the civil union law in meeting the mandate laid out by the high court, and its establishment represented a significant consolation prize for Garden State Equality, New Jersey's LGBT rights lobby group, which had unsuccessfully pressed the Legislature and Democratic Governor Jon Corzine to enact a marriage equality law in response to the court ruling. At the time, the governor and legislative leaders were not publicly antagonistic toward full marriage equality, but argued that a civil union law should first be given a chance to meet the court mandate.

The Review Commission decisively found that the law fell short in addressing the equality requirements of the Supreme Court ruling.

"I believe that New Jersey will be the first state in the union to enact marriage equality through legislation," said Steven Goldstein, chairman of Garden State Equality and the co-chairman of the Review Commission. "With this report, I believe it is more likely than ever to happen very soon."

Asked if he thought it was possible that a marriage equality bill could be enacted in 2009, prior to statewide elections in New Jersey in November, Goldstein responded, "I would not preclude that possibility."

The governor and the entire State Assembly face the voters next November, but not the State Senate, which has four-year terms that end after November 2011. Both Senate President Richard J. Codey (the former acting governor) and Assembly Speaker Joseph J. Roberts, Jr., - the two men are Democrats - have said they support marriage equality, while Corzine has for more than a year acknowledged that he would sign a marriage law if it came to his desk. Although the Senate, which is not up for election in 2009, has only a narrow Democratic majority, in the Assembly, the party has a commanding advantage over the Republicans.

Even though the Review Commission issued a preliminary report in early 2008 identifying significant shortfalls in the ability of civil unions to deliver true equality, the unanimity and boldness of the final report are striking.

"Given where we started and the fact that nearly half of the commissioners are government employees from a state that fought to defend the status quo on marriage in court, this result is surprising," said J. Frank Vespa-Papaleo, the Review Commission chairman who is director of the state Division on Civil Rights. "To have gone from that to these conclusions speaks volumes about the comprehensiveness and transparency of this review process and about the quality of the information we gathered."

Five of the 13 commissioners represent state government agencies that report directly to Corzine - in addition to Vespa-Papaleo's Civil Rights Division, the departments of Human Services, Banking and Insurance, Health and Senior Services, and Children and Families. A sixth commissioner represents the state attorney general, Anne Milgram, a Corzine appointee herself, but one with broad statutory independence from the governor.

Of the other seven commissioners, five were appointed by the governor, and one each by the Senate president and the Assembly speaker. Goldstein was appointed by Speaker Roberts.

The Review Commission report laid out a range of criteria, on each of which civil unions were judged as failing to deliver equality. It also labored to incorporate the personal stories from the more than 150 witnesses who testified at eight public hearings lasting a cumulative 26 hours. In perhaps the most pointed indictment of the separate status for same-sex couples created by the New Jersey Legislature, Lynn Fontaine Newsome, president of the state Bar Association, told the commissioners that the law is "a failed experiment."

Among the key conclusions were that the law fails to provide members of civil union couples with the ability to act as a spouse in making health care decisions for their partners in emergency situations; that employers continue to discriminate against civil union couples as compared to their married employees; that the public in general had an inadequate and often mistaken understanding of what civil unions are; that the children raised by civil union couples are disadvantaged relative to those in married households; and that people of color couples face particularly difficult burdens in gaining equal access to the rights and benefits that marriage would provide.

The report opens with an especially compelling case of a Montclair civil union partner confronted with a potentially fatal cardiac arrhythmia that landed her in an emergency room. Gina Pastino testified that even though she gave the hospital all the relevant information about her family members, including her civil union partner Naomi, when Naomi arrived at the emergency room, the attending physician said he did not know what a civil union was. As the result, valuable time treating Gina was wasted in clarifying her partner's authority to make medical decisions.

In the case of a Plainfield couple, a gay man was not allowed to visit his partner in an emergency room and was finally removed from the hospital by security.

Most of the employers who refused to extend equal benefits to civil union couples cited the federal Employee Retirement Insurance Security Act (ERISA) that exempts from state regulation all companies that "self-insure," rather than relying on a third-party insurer to take on the cost risk of their health care benefits plan. According to the Review Commission, an estimated 50 percent of all companies in New Jersey self-insure.

It is not clear whether full marriage rights for same-sex couples would alter the legal impact of ERISA - New Jersey might still be constrained from requiring equal treatment under self-insurance plans - but the Review Commission argued that in practice the ERISA problem would largely subside.

"The testimony suggests that employers may decline to provide insurance and health benefits to civil union partners not because of an objection to the government recognition of same-sex couples, but because of the term used by statutes establishing government sanctioned same-sex relationships," the Review Commission wrote.

In fact, testimony from Massachusetts pointed to employer acceptance of same-sex marriages despite the potential for them to invoke the ERISA loophole. Tom Barbera, a vice president of that state's AFL-CIO, testified, "From the first few weeks after May 17, 2004, when marriage equality took effect in Massachusetts, ERISA has barely been an issue in Massachusetts... In the first few weeks of marriage equality, only a few companies chose not to provide retirement benefits under ERISA to same-sex couples."

The Review Commission in New Jersey found a markedly different experience under civil unions, and stated that the problem had not lessened since the law took effect.

Dr. Marshall Forstein, a Harvard Medical School psychiatry professor, testified that a purportedly separate but equal relationship status for same-sex couples was psychologically harmful both for such partners and for young people first coming out and faced with prospect that they can never enjoy the same family status as their heterosexual peers.

Dr. Judith Glassgold, president of the New Jersey Psychological Association, who works with children, adolescents, and their families, testified that unequal treatment in terms of relationship recognition harms children in gay and lesbian families.

The Review Commission report noted that transgendered people who married while living in their birth gender but now having transitioned receive no clarification about their marital status as the result of the civil union law. Whether they remain married or are now considered to be in a civil union - or neither -is an unanswered legal question.

Dr. Sylvia Rhue, director of religious affairs for the National Black Justice Coalition, testified about the economic burden facing poorer couples, many of them people of color, who are not given equal treatment by their employers. Unlike more affluent couples, this population often cannot afford the financial and legal advice necessary to protect each other, their retirement, and their life after the death of one of the partners.

The Review Commission pointed to the broad public benefits of extending marriage rights to same-sex couples, estimating that the weddings of 10,589 New Jersey couples, or approximately one half of the total identified by the Census, over the next three years, plus the influx of wedding tourists to the state, would generate $284 million in economic activity during that period, create 800 jobs, and increase state and local tax revenues by $19 million.

The report pointed to a similar range of benefits identified last year by the New York City comptroller in assessing the potential impact of marriage equality here, and noted that a range of observers in Massachusetts have found a positive benefit from the migration of skilled gay couples to that state since 2004.

The report did acknowledge that the refusal of the federal government and most state governments - New York is a notable exception - to recognize same-sex marriages from those states where they are legal will continue to create inequalities for same-sex couples. Access to federally-funded programs, such as Medicaid, as a spouse or married couple would be barred, and married couples traveling outside New Jersey might face limitations on having their spousal status recognized - in emergency health care situations, for example.

Still, Garden State Equality's Goldstein argued, it would likely be easier for a gay man or lesbian to explain that they are their partner's spouse than to spell out that the couple enjoys civil union rights.

The Commission recommended that the domestic partnership law that allows couples in which one partner is 62 or older to have their relationships enjoy government-recognized legal status be retained. More than 150 such couples have registered as partners, presumably to avoid the complications in their estate planning, likely already underway, that marriage would have entailed.



©GayCityNews 2008