Seven months after the New Jersey Senate failed to pass a gay marriage law, and nearly a month after the New Jersey Supreme Court refused to hear a gay case, speculation runs rampant through the state and the nation.

Gay couples unsuccessfully sued New Jersey four years ago for the right to marry. They claimed that by creating civil unions, the state did not fulfill a court order to treat them the same as heterosexual couples seeking to marry.   The justices split 3 to 3, one vote shy of the four needed to have the court consider the case.

Justice Virginia Long, who wrote the dissenting opinion, agreed that there was an insufficient record for debating the merits of the claim, but she said that oral arguments would have helped guide the court.

In January, the New Jersey Senate voted 20 to 14 to defeat a bill that would legalize same-sex marriage. Gay rights activists had hoped to get the bill passed because then, Governor Jon Corzine said he would sign the bill into law. However, Governor-elect Chris Christie (now Governor) said he would veto the bill.

Democratic Party Blamed

New Jersey Senator Sandra Cunningham (D-Jersey City), one of the bill’s co-sponsors, urged her fellow senators to support the Freedom of Religion and Equality in Civil Marriage Act. Senator Cunningham compared the fight for marriage equality to the fight for racial equality.

She said if not for the Civil Rights movement the African-American and minorities might be part of the legislature, but in different roles. “We would probably be sweeping the floors instead of sitting here as legislators,” she said. “It’s important for me to stand up and say that everyone has a right and everyone has the right to fight for their life, for the kind of life we all want, the American Dream. Our responsibility here is to protect the rights of New Jersey’s citizens.”

“This should have been a slam dunk,” said Senator Ray Lesniak (D), one of the party’s frustrated power brokers. “The victims this time were the thousands of gay couples across this state, and their children, who just got a slap in the face. The message opponents delivered to them was an ugly one, whether it was inspired by religion, by tradition or by old-fashioned bigotry.”

Senator Lesniak (D) continued: “They are second-class families who cannot join the club. But most of us are victims of this Democratic decade in one way or another, unless you have one of those fat state pensions. Consider property taxes, job losses, the state’s enormous debt, and the ever increasing salaries and benefits that we pay to teachers, firefighters and cops. We face a mess that will take many years to clean up.”

Senator Lesniak (D) continued: “The reason for that is we have not been bold enough, the Democratic Party has lost its moral compass. We have been timid. Think about the crisp leadership Michael Bloomberg has given New York City, and then imagine the opposite. That’s us.”

The Governor’s Wrath and Broad Reach Blamed

The New Jersey Supreme Court doesn’t give interviews, so no one can ask whether the tribunal balked on the gay marriage issue because it was afraid of the reaction of Governor Chris Christie. Christie became the first Republican to win a statewide election in New Jersey in 12 years.

“There won’t be any comment,” says Winnie Comfort, a spokeswoman for the court. “Of course, people are free to speculate. There is nothing we can do about that.”

Comfort made the comments in response to remarks by legislators who raised the issue of whether the court — or, at least, three members — might have been afraid to touch the gay marriage case because Christie can remove them by appointing other justices. The way he did to Justice John Wallace, the court’s only African-American.

Both Senator Raymond Lesniak (D-Union) and Assemblyman John D. McKeon (D-Essex) told The Star-Ledger’s Matt Friedman the decision raised the question of whether Wallace’s ouster led three non-permanent court members to duck the issue. The three judges who don’t have to worry about reappointment — Justices Virginia Long, Jaynee LaVecchia, and Barry Albin dissented from the order. They wanted arguments on the motion to go forward. Coincidence?

“I think the three justices who voted against the motion looked over their shoulders and saw Governor Chris Christie,” says Frank Askin, a Rutgers Law School professor and constitutional scholar in Newark. “There is no question in my mind that fear of what the Governor would do played a part in that decision.”

Michael Drewniak, Governor Christie’s spokesman, declined to answer questions about the decision.

California Prop 8 Case

New Jersey once had a supreme court willing to render significant decisions. Under chiefs like Joseph Weintraub, Richard Hughes, Robert Wilentz, James Zazzali and Deborah Poritz, the state’s highest court was a national leader in individual rights.

It is often in state courts that individual rights are most effectively protected. New Jersey’s decisions on school funding and fair housing — also now endangered — went far beyond what the federal courts would do.

Rutgers Law Professor Carlos Bell, an expert on gay marriage, explains it could lead to an adverse decision by a conservative U.S. Supreme Court:

“That is why most of the other same-sex marriage lawsuits (including New Jersey’s Lewis v. Harris) have been brought in state courts alleging violations of state constitutions. When a case is decided on state constitutional grounds, it cannot be appealed to the U.S. Supreme Court.

“It is likely the court will hear the Proposition 8 case. The upside for gay people of a favorable decision is tremendous: It would mean same-sex couples all over the country would have to be afforded the opportunity to marry. But the downside is also great: It would mean a U.S. Supreme Court decision, which would likely stay on the books for a long time, holding gay people are not entitled to marry under the federal constitution.”

New Jersey Senate Debate – Protests and Supporters