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Volume 35
Issue 08
 
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NJ to recognize marriages, civil unions and domestic partnerships from other jurisdictions
NJ to recognize marriages, civil unions and domestic partnerships from other jurisdictions
by Lisa Keen - SGN Contributing Writer

Three days before New Jersey's new civil union law went into effect, the New Jersey Attorney General issued an advisory opinion to say that same-sex marriages licensed in Massachusetts and other jurisdictions "are valid in New Jersey" but will be "treated as civil unions in our state." Gay legal groups say it's a step in the right direction.

Attorney General Stuart Rabner noted that New Jersey's Domestic Partnership Act, enacted in 2004, "expressly mandates recognition of same-sex relationships other than marriage validly established under the laws of other jurisdictions." The state's new Civil Union law, which went into effect Monday, February 19, provides for New Jersey to recognize a civil union established in another state.

Tackling a legal issue that some believe might be key in a likely U.S. Supreme Court case involving same-sex marriage recognition, Rabner said that although the U.S. Constitution's "full faith and credit" clause "mandates that States recognize the 'public acts, records, and judicial proceedings" of other states, "that requirement is not absolute."

"Recognizing same-sex marriages established under Massachusetts law as civil unions in New Jersey both gives substantial effect to the Massachusetts relationships&and comports with the intent of the New Jersey legislature to provide those rights to same-sex couples through a civil union."

"There is a lot of good news in this opinion that goes a long way to protecting same-sex couples in New Jersey," said David Buckel, Marriage Project Director for Lambda Legal Defense and Education Fund. He said same-sex couples who come to New Jersey "should feel a lot of security knowing that their relationship's legal status is protected."

But, said Buckel, "There is nothing in New Jersey's public policy or the New Jersey Supreme Court's opinion in Lewis v. Harris that requires the state to treat out-of-state marriages of same-sex couples differently than those of different-sex couples."

"The good news about this decision is that New Jersey is recognizing the legal commitments that LGBT people have already made," said Davina Kotulski, executive director of Marriage Equality USA. "However the myriad names of these contracts& continue to add to the illusion that separate is equal. It is clearly not! LGBT Americans must have the same rights as all other Americans, anything less than marriage is less than equal."

Lewis v. Harris is the same-sex marriage lawsuit pressed by Lambda, which led to a ruling by the New Jersey Supreme Court last October. The New Jersey high court followed the reasoning of the Vermont Supreme Court in 1999. It 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 court, the majority in New Jersey said it was up to the legislature to decide whether those benefits are delivered through marriage licenses or some "parallel" structure called something else.

In response to that decision, the New Jersey legislature in December followed the lead of the Vermont legislature and created a civil union structure for same-sex couples.

"Under this analysis," wrote Rabner in his February 16 letter to the State Registrar of Vital Statistics., "same-sex civil unions established under the current laws of Vermont and Connecticut, as well as same-sex domestic partnerships established under the laws of California, which provide rights that closely approximate those of New Jersey civil unions, will be valid in New Jersey and treated as civil unions in our State."

Interestingly, Vermont employers have been quietly and informally recognizing same-sex marriages licensed in Massachusetts and Canada as marriages in Vermont. Attorney Beth Robinson, a lead attorney on the case that led to civil unions in the Green State, said "the issue has come up informally with various employers from time to time, more often involving Canadian marriages."

"So far," said Robinson, "the cases that I'm aware of have sorted themselves out informally, and the entity in question has recognized the marriage-- usually for the purpose of providing spousal health insurance benefits." Robinson pointed to a case in May of last year in which the University of Vermont reversed its initial rejection of spousal benefits for a male staff member of the campus student center. The couple had married in Canada.

Same-sex marriages licensed in Massachusetts, Belgium, Canada, the Netherlands, South Africa, and Spain, he said, will be treated as civil unions in New Jersey. Legal recognition of same-sex relationships in Great Britain, Iceland, New Zealand, and Sweden will also be treated as civil unions. These relationships, he said, "offer rights that match those offered to married couples."

Domestic partnerships recognized by Hawaii, Maine, and the District of Columbia will be recognized as domestic partnerships under New Jersey law. That law took effect in 2004 but, once the civil union law goes into effect, he noted, the only couples eligible for domestic partnerships in New Jersey will be couples in which both partners are 62 or older. The attorney general also said that couples who obtain domestic partnerships in other jurisdictions may apply for civil union status in New Jersey.

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