Advocates for gay marriage in New Jersey got sobering news from a previously sympathetic State Supreme Court today, when it denied their attempt to get an early decision on the constitutionality of the state's Civil Union Law.
Their appeal to New Jersey's highest court followed a vote in the legislature that refused to replace the Civil Union Law with a Marriage Equality Law.
It was the High Court that nearly four years ago, in the case Lewis vs. Harris, ordered the State Legislature to either give gays the right to marry, or create a civil union law that would give them the same rights -- but no marriage certificate.
Three and a half years ago, the Legislature responded with a Civil Union Law that mirrored state marriage laws in all rights and respects with one big exception -- it does not confer the term 'marriage' on gay unions.
Since then, led by Garden State Equality and New York-based Lambda Legal, gays have argued that the civil union law does not work because the term 'civil union' is unknown to most people.
"This matter cannot be decided without the development of an appropriate trial-like record," three of the justices wrote in their decision while adding, "we reach no conclusion on the merits of plaintiff's allegations."
But three other justices(there is one vacancy, and a majority would have been needed for the High Court to bypass the lower courts) were ready to hear the oral arguments that would have kicked this petition into high gear, noting the claims of gays that the law is not working, including the findings of the state Civil Union Review Commission.
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Nonetheless, the dissenters seemed to acknowledge that gays need to have their arguments tested "in the crucible of a litigated matter."
While disappointed they couldn't get one more vote to put this matter before them right away, the three called on the lower court where it heads now to reach a decison "with all deliberate speed" in the apparent full expectation that gay marriage in New Jersey is headed back to the State Supreme Court which in the past has shown great sympathy for the issue.
"We are terribly disappointed," Haley Gorenberg, Lambda Legal Deputy Legal Director, said in a prepared statement.
"This ruling is a saddening setback for our plaintiffs and their families," Gorenberg said, and added "We are now assessing possible next steps in Superior Court."
"I'm not surprised," said Len Deo, head of New Jersey's Family Policy Council and a strong opponent of gay marriage.
He added "Garden State Equality and its constitutents have done nothing but work to make Civil Union fail because they want the whole enchilada."
As to the possibility that the State Supreme Court could still rule in favor of 'marriage' for gays, Deo added "I'm not gonna say I'm worried but obviously we're in this for the long haul."
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