N.J. still sorting out legal details of civil unions

BY CHRIS GAETANO
Staff Writer

Same-sex couples all over New Jersey applied for civil union licenses when a new law that allows them to took effect on Feb. 20.

While the moment was seen by rights groups as a step forward, it was also seen as a sharp reminder that gay and lesbian couples still cannot technically get married.

The law, which was signed by Gov. Jon Corzine in December, allows same-sex couples to have most of the same legal rights as heterosexual married couples, including the right to count their partner for the purposes of family leave, joint ownership of property and hospital visitation rights.

Not included among these new rights, however, is the ability to call one's partner a spouse or the relationship a marriage. This is because the civil union was set up to be a legal entity that, while theoretically equal to marriage in every way, is still considered separate from it.

The creation of this parallel institution alongside marriage was the solution envisioned by the state Legislature, which was ordered by the state Supreme Court to grant same-sex couples all the same legal rights and responsibilities that heterosexual married couples enjoy.

Another option was to allow marriage, though opposition to this idea both from some members of the Legislature as well as several citizens groups led state lawmakers to choose civil unions.

The court order came to the Legis-lature as a result of the case Lewis v. Harris, where seven same-sex couples asked their respective hometowns for marriage licenses and were subsequently denied. The case, which was decided in October 2006 in favor of the couples, determined that their rights had been violated.

While at the state level equal legal standing has been established, a whole host of other benefits collected at the federal level are still denied. This is because the federal government's current policy does not recognize same-sex unions, so things that heterosexual married couples have access to, such as pension, Social Security and certain health benefits, are still inaccessible.

Recognition of a civil union varies from state to state, making moving to another state a risky proposition for some couples.

Meanwhile, New Jersey Attorney General Stuart Rabner issued an opinion on Feb. 16 that states that all out-of-state same-sex unions will be treated as civil unions. This means that if a same-sex couple got married in Massa-chusetts, which is the only state in the union that allows them to do so, they would be recognized as a couple in a civil union should they come here. The opinion also says that civil unions from other states will be recognized here. Rights groups say this is a good step, but also added that it is still not marriage.

"This is a good news, bad news decision. Same-sex couples should feel a lot of security knowing that their relationship's legal status is protected. The bad news is that the attorney general is not recognizing a marriage as a marriage," said David Buckel, marriage project director at Lambda Legal, the law firm that argued on behalf of the plaintiffs in the Supreme Court case.

The only other states with a civil union law similar to New Jersey's are Connecticut, Vermont and California, although California calls its arrangement "domestic partnership." Legal experts in all three states agreed that couples in a New Jersey civil union traveling to their respective states would probably have their partnership recognized and respected by each particular state government. However, many emphasized the word "probably" while pointing out that few legal precedents currently exist for this sort of thing and case law is still murky.

"A Vermont civil union is treated just like a straight marriage and I think we would give full faith and credit to a gay marriage or a gay civil union. We'd be giving full faith and credit to the laws of New Jersey with regard to this issue. That's what I think would happen. But until there's a problem and the issue is tested in our [courts], you don't really know for sure," said Bill Dalton, Vermont's deputy secretary of state.

The attorney general of Connec-ticut, Richard Blumethal, issued a similar opinion to that of Rabner in 2005, when that state legalized civil unions, including the caveat that it will still not recognize same-sex marriages.

Meanwhile, Shannon Minter, the legal director for the National Center for Lesbian Rights, said New Jersey same-sex couples can come to Califor-nia with no fear that their civil union will not be recognized, as the state would recognize it as an equivalent institutions to its own domestic partnership.

Massachusetts, the only state that allows gay marriage, would not recognize a civil union, as the state does not have any other institution but marriage and would require couples to get married in the state to get its legal protection.

"Massachusetts would recognize the New Jersey relationship if it were a marriage, no question about that, but civil unions are not the same," said Michele Granda, staff attorney with Gay and Lesbian Advocates and Defen-ders, a Boston-based organization that focuses mainly on the New England area. She also pointed out an odd legal quirk in Massachusetts: civil unions are recognized solely for the purposes of divorce.

Granda, like Dalton in Vermont, said the novelty of same-sex union laws makes certain legal determinations murky until they are more clearly examined by the courts.

"There's good reasons to think that Massachusetts would respect a civil union for some or all purposes, but until a court decides it, it's not clear that those rights will be given," said Granda.