Box Turtle Bulletin

Prominent NJ Democrats call for marriage vote

Over the summer, our community advocated for a marriage vote in New York and New Jersey.

In New York the House passed marriage equality, but the Senate imploded resulting in months of confusion and a constantly changing power play for control. Now, in special session, there may possibly be some movement on the bill, though there is no certainty of its passage.

In New Jersey, however, we have always known that the votes were there for passing marriage equality. But over the summer, with elections coming up, we were asked for patience. Our community was promised that if we would wait until after the election, the legislature would enact marriage equality during the lame duck session regardless of the election outcome.

Now some are talking of reneging on this promise. They blame Maine.

But I wonder if they have the blame backwards. Would the vote in Maine have gone another way if New York and New Jersey had moved ahead by enacting equality? Would the tone of the discussion have shifted? Would Mainers really have wanted to see themselves as less tolerant than their neighbors in New York or New Jersey? It is one thing to be a bit more conservative than Massachusetts, but Jersey?

Yet there is still hope. Some Democrats in the state are not at all pleased by what they see as promise breaking and spineless weaseling. So a collection of prominent Democrats have signed a letter calling for a vote.

An Open Letter Calling on Democratic Legislators to Post Marriage Equality Legislation for a Vote

We believe that equality and fairness are fundamental principles of New Jersey’s Democratic Party, and that is why we call on the state legislature to vote immediately on, and pass, the marriage equality bill.

New Jersey has a proud history of supporting civil rights. It was this legacy that encouraged many of us to become involved in politics. We believe that allowing committed gay and lesbian couples to marry is, at its core, about treating our family members, friends, coworkers, and neighbors with dignity and respect.

We appreciate that this is a difficult issue for some state legislators. But marriage equality is an idea whose time has come. We are confident that the voters will stand by those elected officials who do the right thing.

When our children and grandchildren look back on this moment, we want to be able to tell them that we, too, did the right thing.

As Martin Luther King poignantly reminded us, “the arc of the moral universe is long but it bends toward justice.” That is why we’re proud to lend our names and our voices to this important cause. We do so in our capacity as private citizens and Democratic voters, and not on behalf of any particular office or organization.

This effort is important – and will perhaps be effective – because it appears to be a grass-roots effort to rally the support of elected officials. If this is, as it seems, the effort of grass-roots workers and endorsed by power brokers, including congresspersons and mayors, then it could be foolish to ignore. It is very difficult to win elections without the support of either motivated activists or powerful party machines.

Quinnipiac Poll: NJ Voters don’t want marriage equality this week

Polls over marriage equality in New Jersey are hovering around even.

A Rutgers-Eagleton poll conducted between Nov. 6 and 10, found 46 percent of adult residents want to extend the right to gay couples while 42 percent oppose it. Still undecided were 12 percent of respondents.

A Quinnipaic poll taken November 17 through 22 found a plurality in opposition to equality:

By a slim 49 – 46 percent margin, New Jersey voters oppose a law that would allow same-sex couples to marry, according to a Quinnipiac University poll released today.
…
In this latest poll, same-sex marriage wins 60 – 34 percent support among Democrats and a narrow 49 – 45 percent support among independent voters, while Republicans oppose the measure 69 – 25 percent.

Women support same-sex marriage 53 – 41 percent, while men oppose it 57 – 38 percent. White voters split 49 – 47 percent, while black voters oppose the measure 61 – 28 percent.

While these contradicting polling numbers don’t provide incontrovertible support for any decisions, I think we can count on the negative one to be used as justification for the leadership in New Jersey to renege on promises and to shove marriage equality at least four years into the future. I very much doubt that they will act to bring about marriage equality in this lame duck session.

I have a growing contempt for the leadership in New Jersey. But it pales in comparison to the contempt they show for the principle of equality.

Yet I can be dissuaded. Prove me wrong, guys.

NJ Democrats Wiggle and Waffle

You know that marriage equality bill that the Democrats in New Jersey promised over the lame duck session? Well it now looks like that was just the usual sleight of hand we’ve been getting from the Democratic Party as of late. (nj.com)

[Upcoming] Senate Majority Leader Stephen Sweeney said today it would be irresponsible for Democrats to bring a bill to a vote if they are not sure it will pass.

So it might be killed in committee.

As legislators try to finagle votes for one side or another, Sen. Paul Sarlo (D-Bergen) said he would not bring the bill up for a vote in the Senate Judiciary Committee — even though enough people in the committee supported it to pass — unless the Democrats could prove they had the votes to pass it outright.

You know, the same ol’ BS. Yeah we ‘don’t have the votes’ and we won’t tell you who is opposed to equality or unwilling to take a stand but gosh golly we are going to need your dollars, your time, and your help in our campaigns. And if you knew exactly who didn’t give a rat’s ass about you, well ya just might not work as hard for us.

I’ll tell you who I think doesn’t give a rat’s ass.

I’ll start with Stephen Sweeney. And I’ll follow with every person who does not stand up and make a proactive effort to get this passed. “Oh, I just followed the leadership” means exactly the same as, “I don’t give a rat’s ass any more than the leadership does” and should be rewarded with the same.

There is a narrow window. And the people of the state are behind marriage equality. But some of these New Jersey politicians are living up to the stereotype of New Jersey politicians.

There are some wonderful people in Jersey. Some of them are gay, and many many more are friends, family, co-workers, and acquaintances who value their gay loved ones more than they value their elected official’s career.

Maybe it’s time that we got the list of Sweeney’s donors and found those with gay friends and family. Maybe a personal appeal from those loved ones might encourage them that a better use for the political donations could be found.

Who knows, maybe we could make enough of a change that Sweeney might suddenly find that he gives a rat’s ass.

New Jersey wants marriage equality

A new poll in New Jersey shows more support than opposition for marriage equality.

More New Jerseyans support legalizing gay marriage than oppose it, according to a Rutgers-Eagleton poll released this morning.

The poll, conducted between Nov. 6 and 10, found 46 percent of adult residents want to extend the right to gay couples while 42 percent oppose it. Still undecided were 12 percent of respondents.

There has long been talk of instituting marriage equality during the lame duck session that begins next week. However, recent comments from the Democratic leadership of some committees suggests that they are looking for excuses to avoid a vote.

There is a very narrow window in which to pass a marriage bill. Otherwise we are on hold in New Jersey for another four years or until Christie is replaced.

Equality New Jersey Goes Proactive

Equality New Jersey is being proactive in their efforts to get the legislature and governor to legalize same-sex marriage before Governor-Elect Christie is inaugurated. Christie has vowed to veto any measures that provide marriage equality.

Rather than wait and respond to a campaign of lies about schools and children, they set out first and defined the message. On election night they ran ads seeking to build a groundswell of support.

The first, Marsha and Louise, features a couple for whom civil unions were inadequate.

The second features a straight woman who compares her hospital treatment to that of another couple in a civil union.

I am not certain as to what type of advertising is most effecting in influencing legislative support or building groundswell. But I do have some observations.

As far as emotional appeals, it doesn’t get much better than Marsha and Louise. This is not some discussion of theoretical inadequacies of civil unions.

This ad featured real people, good people, burdened with the confusion that comes with civil unions and finding themselves unable to provide for physically and mentally handicapped children. Who is going to oppose healthcare for handicapped children?

Although I knew it was a political ad, I still felt myself pulled in and experienced empathy for this couple and disgust for their plight.

The second, Emelia, though weaker in specific evidence of harm, comes across as less practiced and more genuine. It has an ability, I think, to speak to New Jerseyans where they are and in a language that is more organic.

I especially liked “…they were in that civil union, which I don’t know, that, that limbo…” I think it reminds the viewer that they, too, have no idea exactly what comes with a civil union.

And they are all very, very New Jersey.

Republicans Win Governors Races in Virginia and New Jersey

In what was a not-unexpected result, the governorship of Virginia and New Jersey have changed parties.

This is relevant to us in that Governor Corzine of NJ had been criticized for supporting marriage equality. However, the race was fairly close (unlike the Virginia race which was called within minutes of the polls closing) and it is unlikely that it can be translated as some referendum on marriage. It has long been rumored to be the intention of Corzine and the legislature to pass marriage equality during the lame duck session before Governor-Elect Christie is inaugurated.

Heterosexual Menace: Cop Had Oral Sex With Cows And Got Off

Robert Melia (left) and Heather Lewis (right)

No, none of the cows are shown in these mug shots, but the guy did get off:

A New Jersey judge has dismissed animal cruelty charges against a cop accused of committing a sex act with young cows, saying a grand jury had no way of knowing whether the animals were “tormented.” Moorestown police officer Robert Melia, who is currently suspended, allegedly engaged in oral sex acts with five calves in Southampton in 2006. Since New Jersey currently has no law explicitly banning such an act, prosecutors in Burlington county brought animal cruelty charges against Melia, the Philadelphia Daily News reports. Judge Morely said it was questionable that Melia’s acts, though “disgusting,” constituted animal cruelty.

Burlington County assistant prosecutor Gevin Moran didn’t agree. “I think any reasonable juror could infer that a man’s penis in the mouth of a calf is torment.” But Melia’s lawyer, countering with the impeccable heterosexual logic, pointed out that as long as the calves in question don’t complain then everything’s copacetic. The judge agreed.

This is where the second mug shot comes in because they’re not ready to release Melia into greener pastures just yet. He and his girlfriend, Heather Lewis, are still being held on charges of sexually assaulting three girls over a five year period. After one of the girls reported the incident to her stepfather, authorities investigated and found videos on Melia’s computer which not only depicted him having sex with one of the girls, but also the romantic interludes with the buxom bovines as well. Lewis is also being accused of sexually assaulting an underage (human) male.

There’s more heterosexual menace here and in our report, “The Heterosexual Agenda, Exposing the Myths.”

New Jersey’s Narrow Window

Even before today, I was intending to write about the narrow window of opportunity that New Jersey government has in which to implement marriage equality. But the coup in the New York Senate has provided an illustration of just how transient opportunities can be. Changes in power can come unexpectedly so those who are in a position of political authority should use their power responsibly and not assume that it will always be there when needed.

Last Tuesday, Christopher Christie won the Republican nomination for New Jersey Governor. On a page on Christie\’s website titled “Shared Values”, he says the following:

I also believe marriage should be exclusively between one man and one woman. While, I have no issue with same sex couples sharing contractual rights, I believe that marriage should remain the exclusive domain of one man and one woman. If a bill legalizing same sex marriage came to my desk as Governor, I would veto it. If the law were changed by judicial fiat, I would be in favor of a constitutional amendment on the ballot so that voters, not judges, would decide this important social question.

You\’ll note he used the odd phrase “contractual rights” as opposed to civil unions, a structure that New Jersey already enjoys. Christie is no friend of our community.

As unlikely as it may seem for a pro-life, anti-marriage candidate to win the top seat in New Jersey, incumbent governor John Corzine is not safe. A poll on Thursday showed him far behind his opponent.

The Rasmussen Reports poll released today shows Christie defeating the incumbent Democrat 51% to 38%.

If marriage equality is not enacted by November, it is likely to be at least four years before we have another chance.

New Hampshire Would be the Sixth What, Exactly?

New Hampshire could be the sixth gay marriage something-or-other, but finding the language to fit is not a straight-forward task. Considering the methods by which states have reached (and retreated from) marriage rights, putting them in order depends on what one is measuring.

The order in which states have granted recognition to same sex couples

1. District of Columbia 1992 (blocked by Congress until 2002)
2. Hawaii 1997
3. California 1999
4. Vermont 1999
5. Connecticut 2005
6. New Jersey 2004
7. Maine 2004
8. New Hampshire 2007
9. Washington 2007
10. Oregon 2007
11. Maryland 2008
12. Iowa 2009
13. Colorado 2009

The order in which courts have found that states must provide marriage and/or all its rights and benefits to same-sex couples:

1. Hawaii 1993/1997 (reversed by Constitutional amendment)
2. Vermont 1999
3. Massachusetts 2003
4. New Jersey 2006
5. California 2008 (perhaps reversed by Constitutional amendment)
6. Connecticut 2008
7. Iowa 2009

The order in which states provided virtually all of the same benefits as marriage

1. Vermont 1999
2. California 2003 (with subsequent minor adjustments to fix differences)
3. Massachusetts 2003
4. Connecticut 2005
5. District of Columbia 2006 (with adjustment in 2008)
6. New Jersey 2006
7. New Hampshire 2007
8. Oregon 2007
9. Washington 2009
10. Maine 2009

The order in which legal marriages were first performed

1. Massachusetts – 5/17/2004
2. Iowa – 8/31/2007 (only one)
3. California – 6/16/2008
4. Connecticut – 11/4/2008
5. Vermont – 9/1/2009 (Scheduled)
6. Maine – around 9/14/2009 (Scheduled)

The order in which continuous legal marriages began to be offered

1. Massachusetts – 5/17/2004
2. Connecticut – 11/4/2008
3. Iowa – 4/27/09
4. Vermont – 9/1/2009 (Scheduled)
5. Maine – around 9/14/2009 (Scheduled)

And should New Hampshire\’s bill be signed, it will be sixth.

New Jersey Still Likes Marriage

The latest poll of New Jersey voters finds them liking the idea

The Quinnipiac University Poll results are similar to a Monmouth University poll in February.

This poll finds 49 percent supporting gay marriage; 43 percent are opposed. Women and whites tend to favor a gay marriage law, while blacks, men and those who attend religious services weekly are more likely to oppose it.

State Marriage Equality Update

There has been a lot of movement recently in various states on the issue of recognition for same-sex couples. Here is a brief synopsis (I apologize if I missed anything):

Arkansas – on March 27, a bill was killed that would have banned cities and counties from creating domestic partner registries.

California – the State Supreme Court is deliberating on whether Proposition 8 is constitutional and, if so, what impact it has on the 18,000 same-sex couples who married between June and November 2008.

Colorado – at least two initiative drives are underway to either change the constitution to allow for gay marriage or alternately to statutorily create civil unions. The legislature has just passed a Designated Beneficiary Agreement Act, which has been signed by the Governor.

Connecticut – last week codified – with bipartisan support – marriage equality in the state\’s laws to agree with the decision of the state Supreme Court.

Delaware – proposed constitutional amendment to ban same-sex marriage defeated in the Senate in the last week in March.

Hawaii – Civil Unions bill was tied up in committee. Although the bill has a strong majority of support in the Senate, they voted not to pull it from committee.

Illinois – a bill (HB 0178) has been introduced to legalize same-sex marriage along with a bill (HB 2234) to enact Civil Unions. The marriage bill is resting in the Rules Committee but the Civil Unions bill passed out of committee in March and now faces a House vote.

Iowa – last week the Supreme Court found that the state must recognize same-sex marriage. It will go into effect on April 27. The Governor, the Senate Majority Leader, and the Speaker of the House have all announced that they will oppose efforts to change the Constitution. Iowa has no initiative process so it would require a change in leadership and several years before it would be possible to revoke this right.

Maine – both a marriage bill and a civil unions bill are before the legislature. The Judiciary Committee has scheduled a hearing on April 24. Gov. John Baldacci is “keeping an open mind”.

Maryland – on April 7, the State Senate upgraded benefits offered to same-sex couples in domestic partnership relationships but do not allow for official state recognition of those relationships.

Minnesota – there is a bill before the legislature to provide new marriage equality. It is unlikely to pass.

Nevada – a bill to provide Domestic Partnerships with all the rights and obligations of marriage has passed out of committee and is before the Senate.

New Hampshire – at the end of March the House passed a bill to allow for gay marriage. It will be considered by the Senate, where Democrats have a 14-9 advantage (a dozen Republicans in the House supported the bill). Governor John Lynch has not stated whether he will veto the legislation, should it pass.

New Jersey – a commission has found that civil unions are inadequate and polls have found that residents favor gay marriage but a bill before the legislature appears not to be moving.

New Mexico – in March the Senate defeated efforts to enact Domestic Partnerships.

New York – the Governor has announced that he will push for a vote in the Senate on gay marriage. Although marriage equality has passed in the House, without support from some Republicans, the votes do not appear to be there in the Senate.

Rhode Island – a gay marriage bill is unlikely to make it out of committee. A “reciprocal beneficiary agreements” bill, a darling of anti-gays who want to label gay couples as identical to roommates or cousins, has been proposed as a “compromise”.

Vermont – this week the legislature overrode the governor\’s veto to pass marriage equality.

Washington – a bill to upgrade the state\’s Domestic Partnerships to provide all the rights and obligations of marriage has passed the Senate and will come before the House soon.

West Virginia – last week the House of Delegates defeated a proposed state constitutional amendment that would have banned same-sex marriage.

Wisconsin – the Supreme Court is being asked to review the constitutional ban on marriage. The Governor, in his budget, has proposed Domestic Partnership benefits.

Wyoming – in February the House defeated a constitutional amendment to ban same-sex marriage.

District of Columbia – the Council voted unanimously to recognize out of state marriages. Same-sex marriage bill expected later this year.

Has Marriage Equality Come to New Jersey?

At least for the purpose of divorce, same-sex New Jersey couples who married legally elsewhere will have their marriages recognized (AP)

Gay marriages performed outside New Jersey are recognized in the state for the purpose of divorce, according to a ruling Friday by a judge deciding whether a lesbian couple married in Canada can split.

The wider implications weren’t immediately clear, but Superior Court Judge Mary Jacobson said New Jersey has a long history of recognizing marriages that are valid where they were performed.

Ironically, I guess that means that while a marriage may be loved and appreciated, it is not recognized. But once it is no longer held in esteem, then the state miraculously notices it. Ah, you have to love politics.

Let’s hope that this situation illustrates the silliness of having two separate institutions based solely on the sexual composition of the couple and that the legislature in New Jersey estabishes marriage equality without delay.

Marriage Rights Predictions for 2009

2008 was an exciting year – with both highs and lows – for marriage equality. But the upcoming year is likely to be exciting as well. Here are a discussions and some projections about the direction of marriage equality in 2009.

Of course, my crystal ball is probably no better tuned into the future than yours, but here are my guesses and some states to watch.

California: In March, the California State Supreme Court will hear arguments as to whether Proposition 8 is a valid amendment to the state constitution.

The relatively close margin on the vote coupled with the dominance of political positioning in opposition to the amendment will provide the court with the sort of political cover that could allow them to judge in favor of equality. Further, as the state moved from a 61.4% opposition in 2000 to a 52.3% in 2008, jurists may hesitate to uphold an initiative that can predictably be contrary to the wishes of the majority of Californians within the next few years.

Additionally, there is little threat of voter reprisal for three of the justices who ruled favorably on In Re Marriage Cases. Carlos Moreno and Kathryn Werdegar are not up for a confirmation vote until 2014 and Joyce Kennard is safe until 2018. Chief Justice Ronald George is due for confirmation in 2010, but as he is already Enemy Number One to anti-gay activists it’s unlikely that this will weigh much in his decision.

Interestingly, Ming Chin – a dissenting vote on marriage in May – may feel pressure from two fronts in his consideration of this case. Chin is up for confirmation in 2010 and it would be naïve to think that he is not aware of the political backlash and massive organization that resulted from the outcome of Proposition 8. I think he is aware that his decision, either way, will engender a movement to oppose his confirmation. Additionally, Chin, as an Asian American, may recognize that the stripping of fundamental rights – whether or not he initially supported them – from a protected minority can establish a precedent that has long legs and severe consequences.

This is difficult to call, but I think that I will cautiously predict that the CA Supreme Court finds that a fundamental right cannot be removed from a suspect class by means of a majority vote. I will go so far as to say that I would not be surprised to see a greater than 4-3 split on this issue.

Should, however, the Court rule against equality, be prepared for state-wide protests and for the creation of a political machine to collect signatures to get a reversal amendment on the ballot in 2010 as well as to deny reconfirmation of Supreme Court Justice Ming Chin.

Iowa: The state Supreme Court heard arguments this month on whether the state’s ban on same sex marriage is unconstitutional. They should announce their decision at some point within the first half of the year.

Although a Midwestern agricultural state, Iowa is not necessarily conservative. And the Supreme Court has a tradition of early progressive action. The notions articulated in California’s In Re Marriages about fundamental rights and suspect class may feel comfortable to Iowa justices.

I’m not making a call on this one. But should equality prevail, there is no initiative process in Iowa. Those seeking to overturn the decision would either have to rely on a constitutional amendment occurring by means of a majority vote in two consecutive legislatures (unlikely with the current Democrat legislature) and a popular vote in 2012 at the earliest. Alternately, the citizens could vote for a constitutional convention in 2010, which is rather unlikely.

New York: This state is situated to be the first state to voluntarily select marriage equality, should it so choose. The state Assembly has already voted favorably and the Governor is supportive; the only glitch is a handful of Democratic Senators who are seeking to hold up the confirmation of the Democratic Senate Leader in order to oppose marriage equality and advance their own political profile.

I predict that ultimately Senator Smith will become the Senate Majority Leader. And I think that the shenanigans of Senator Diaz have not endeared him to Smith or many in the Democratic Caucus. No doubt some Senators would like nothing better than legalizing gay marriage and conducting the first one on the sidewalk outside Diaz’ house.

However, with Diaz and two others (at least) balking, marriage equality cannot be achieved in New York without some Republican support. Interestingly, this comes at a time when the G.O.P. in the state is seeking to shed it’s anti-gay image. Currently, Log Cabin Republicans are active in both NYC and in the Hudson Valley and several Assembly Republicans voted in favor of marriage last year. And their relationship with the Party has been improving recently.

So while Dean Skelos, incoming Senate Minority Leader, will not support the effort, opposition to the bill will not be in the form of fiery homophobia and there will not be threats of reprisals against any Republican Senators that break rank and support marriage equality.

Frankly, I don’t think that New York has the votes in the Senate. And there may be reluctance on the part of legislators and the gay community to jump before enough votes are committed. So even though the Democratic Party ran on the issue of passing marriage equality in the Senate and even though much of the change in power came from gay support, I think we should not expect marriage in New York in 2009.

One factor that may influence this, however, is the action of New York’s neighbors (see discussion below). Should a New England state move to marriage equality, that might be a bit influential and supportive. But if it looks like New Jersey will legalize marriage, state pride may push New York legislators to twist arms and get this on the books.

New Hampshire: The state has had Civil Unions for a year and already there are expressions of discontent and a move to legalize full marriage. Last week, State Rep. Jim Splaine, D-Portsmouth, submitted a bill to legalize marriage.

However, Governor John Lynch opposes this effort and even if those who voted for civil unions all favor marriage, they do not have the votes to override a veto.

I predict that this bill will not make it to the floor for a vote.

Vermont: This state has had civil unions for eight years with no discernable negative consequences. A commission reported in April 2008 that marriages would provide many tangible and intangible benefits that are not achieved through civil unions. While this came too late for action in 2008, there will be a vote in 2009 whether to legalize marriage.

Governor Jim Douglas has stated his opposition to the bill but he’s not indicated whether he would veto the legislation or allow it to become law without his signature.

My guess is that this legislation will stall, eventually pass, but be vetoed by the Governor. But a public outcry in favor of marriage could result in Douglas passively letting the bill become law.

Maine: There is a relatively below-the-radar movement to bring marriage equality to a vote in the Maine Legislature in 2009. Whether or not successful, anti-gay activists are likely to try for a constitutional amendment in 2010. I have no predictions on this.

New Jersey: New Jersey has had civil unions for two years. But a commission released this month reported that civil unions were not adequate to address the needs of gay couples and recommended that marriage be instituted. A poll in August 2008 found that over half of New Jersey residents prefer marriage equality and nearly 60% would be accepting of the decision if the legislature were to enact gay marriage, especially if the commission recommended the change.

Governor Jon Corzine responded to the report by stating that marriage should be legalized in the state “sooner rather than later”. Legislative leaders are saying that the issue is a matter of “when” and not “if” marriage equality would be legislated. They may be seeking to feel the direction of the political wind as all of the legislators and the Governor are up for election in 2009.

Working towards equality, the NY Times editorialized on the 20th that New Jersey politicians should live up to their principles.

I tentatively predict that the legislature will vote early in 2009 for marriage equality.

New Mexico: In 2008 the Senate Judiciary Committee tabled efforts to pass a Domestic Partnership bill which had passed the state House. However, efforts may have more favorable conditions in 2009.

The New Mexico Independent is reporting that HB21/SB12, a bill to provide all the rights and responsibilities of marriage to registered partners, will be considered shortly after the legislature reconvenes in later this month. The success of this bill will depend to a great extent on Senate committee assignments.

I predict that this measure will pass and that Governor Bill Richardson will sign it into law.

Other states: I predict that some states other than those listed above will address marriage or couple recognition. Perhaps Washington will act on marriage or a Plains State will provide a domestic partnership or other registered benefits scheme. Alternately, emboldened by Proposition 8, some anti-gays may begin efforts to pass constitutional bans in other states.

Another Perspective on the Ocean Grove Pavilion

The Transplanted Lawyer at Not a Potted Plant blogsite provides another perspective about the decision to allow a lesbian couple to go forward with their lawsuit against the Ocean Grove Meeting Association for its refusal to rent the couple the boardwalk Pavilion for their civil union. In my commentary, I focused on the finding of the New Jersey Division on Civil Rights that one lesbian couple’s suit could advance. He finds more relevance in the fact that another lesbian couple was denied.

That two couples suing the Association with different results brings a contrast, one that should provide comfort to those worried about the infringment on religious rights and one that further illustrates the dishonesty in the way in which anti-gays have spun the story.

In Bernstein v. Ocean Grove Camp Meeting Association, a lesbian couple wanted to perform a civil union ceremony at a beachside facility owned and operated by a [Methodist] faith organization (it appears to not be a church per se, but it affiliates and identifies with [Methodist] Christianity). The New Jersey agency investigating the complaint found probable cause to permit the charge of discrimination proceed. But, in Moore v. Ocean Grove Camp Meeting Association, another lesbian couple wanted to perform their civil union ceremony at the exact same facility. In that case, no probable cause was found. Both case results were announced on the same day — yesterday.

Same facts, same defendant, same facility, decided on the same day, but different results.

The reason for different results is because the circumstances had changed. When Bernstein requested usage, the Pavilion had been used for a wide variety of purposes – religious and non-religious – including weddings of people of all faiths or no faith at all. All that was required was to pay a fee. Thus it was a “public accomodation”. And the sole reason for rejection of Bernstein’s usage of this public accomodation was that their union was of persons of the same sex.

But when Moore requested usage, the Association had changed their policy and tightened the purpose of the Pavilion. They no longer allowed weddings in the space at all and limited those who were allowed use of the space based on religious affiliation. Thus, the space was no longer a public accomodation but private property with restricted use. Therefore, religious exemptions again applied.

He further noted that this process, presenting one’s discrimination case before a board before a lawsuit, is further protection for religious bodies.

The Transplanted Lawyer found three lessons:

the first lesson is that someone who claims to be the victim of discrimination cannot immediately walk into court and file a successful lawsuit. They must present their charge to a state or federal agency for investigation first, and that agency has to investigate and decide if there’s any merit.

there is the second lesson about the law of discrimination. You are subject to the requirements of non-discrimination only if you are engaged in something called a “public accommodation.” So if you don’t want same-sex wedding ceremonies in your church, don’t rent your church out to people who are not members of your church’s congregation.

That’s the third lesson — [when invoking freedom of expression,] commercial activity does not enjoy the same level of Constitutional protection as expressive activity.

I found the arguments well thought out and easy to comprehend. And I think that the Tranplanted Lawyer very well expressed the moral of this story:

When the church stops being a church and starts being a banquet hall, then yes, it is vulnerable to a discrimination lawsuit because it’s not acting like a church anymore. The message to churches that are opposed to same sex marriages is “stay true to your faith and the law will be on your side.”

Religious Business, Public Access, and Discrimination

The recent campaign against civil marriage equality for gay people was rife with misinformation, spin, falsehoods, and downright lies. And one story which was repeated to great effect was a legal dispute over the use of a privately-owned public pavilion in New Jersey.

Seldom were the claims accurate.

Take, for example, Charlene: a single-mother of two who warned on her website of the dangers of gay marriage that she had learned at church. Amidst a heap of campaign propaganda and homophobic bogus statistics was this rather hysterical retelling:

Our Pastors would be arrested for preaching against homosexuality according to the BIBLE. God’s word would be restricted! Recently, a Methodist church in New Jersey refused to marry a lesbian couple and they were sued and LOST! Now they lost their tax exemption and the government actually TAXES their tithes! That is God’s Money!!

And it was not just frantic repetition of misunderstood sermons by those who rely on their church for their information; the anti-gay media also joined in the chorus.

The Christian Examiner ran an article – ironically titled Proposition 8: Separating the Fiction from Fact – in which they delared:

Religious liberty
CLAIM: Current California law exempts churches and other religious organizations from having to perform marriages for same-sex couples or conduct other services against their religious beliefs.

FACT 1: New Jersey’s Ocean Grove Camp, lost its tax-exempt status after refusing to allow a same-sex couple to marry on its grounds.

The problem with these astonishing facts? They are not factual.

The LA Times explained it this way:

Another “Yes on 8” canard is that the continuation of same-sex marriage will force churches and other religious groups to perform such marriages or face losing their tax-exempt status. Proponents point to a case in New Jersey, where a Methodist-based nonprofit owned seaside land that included a boardwalk pavilion. It obtained an exemption from state property tax for the land on the grounds that it was open for public use and access. Events such as weddings — of any religion — could be held in the pavilion by reservation. But when a lesbian couple sought to book the pavilion for a commitment ceremony, the nonprofit balked, saying this went against its religious beliefs.

The court ruled against the nonprofit, not because gay rights trump religious rights but because public land has to be open to everyone or it’s not public. The ruling does not affect churches’ religious tax exemptions or their freedom to marry whom they please on their private property, just as Catholic priests do not have to perform marriages for divorced people and Orthodox synagogues can refuse to provide space for the weddings of interfaith couples. And Proposition 8 has no bearing on the issue; note that the New Jersey case wasn’t about a wedding ceremony.

The facts of the story are these:

• The Ocean Grove Camp Meeting Association, while a religious ministry, is not a church.
• The association lists two sites available for weddings on its website: Thornley Chapel and Bishop Janes Tabernacle, both of which are restricted to usage that is consistent with the United Methodist Church book of Discipline and both of which ban smoking or alcoholic beverages on the premises. The lawsuit did not involve either of these church buildings.
• SEE UPDATE BELOW – The structure where the lesbian couple requested rental was the Auditorium Pavilion. The Pavilion was not designed as a place of worship but rather was built in the 1880’s as a covering for “a scale model of 1st Century AD Jerusalem”. The Historical Society of Ocean Grove reports that the model was removed about 1950 and that “Today the Pavilion is used by the Camp Meeting Association, the Historical Society and various community groups.” It did offer its services as a wedding site until April 2007, shortly after the complaint.
• The Association owns all of the land in Ocean Grove (one square mile) but by no means is all of this property dedicated to religious use. There are a number of homes on the land who lease from the association, along with stores, restaurants, and hotels, in 99 year leases, and a beach boardwalk along the public beach.
• The Association rents out the religious meeting facilities to various groups, although it does maintain a ban on smoking and drinking on those properties. However, Ocean Grove was known as a location that was very gay-friendly and welcoming.
• The Association made the beach, the boardwalk, and the boardwalk pavilion public access property. A 1908 ruling referenced that they “had been dedicated years ago by the association as a public highway”. As privately-held public lands, the beach properties were available for a number of benefits including federal state and local funds for repairs and maintenance and exemption from local property taxes through participation in the state’s Green Acres Program.
• After a lesbian couple was rejected by the Association when they tried to rent the space for a civil union ceremony in March 2007, they contacted the State Division on Civil Rights to make a discrimination complaint.
• The State of New Jersey reinstated the Association’s exemption from property tax for the beach and the rest of the boardwalk, but stated that it could not continue to exempt the pavilion as it was not truly open to the public. (NY Times)
  

  “When people hear the words ‘open space,’ we want them to think not just of open air and land, but that it is open to all people,” said [Lisa Jackson, state commissioner of environmental protection]. “And when the public subsidizes it with tax breaks, it goes with the expectation that it is not going to be parsed out, whether it be by activity or any particular beliefs.”

As we can see, the situation in no way mirrors the “facts” as presented by anti-gay activists and those who choose to believe them. No church lost its exempt status, no tithes were taxed, and it wasn’t related to a same-sex marriage in New Jersey (the right to which remains denied to New Jersey residents).

But we can expect even more distortion and truthiness in the days to come. In a move likely to inspire more untruthful rants in the anti-gay media, today the New Jersey Division on Civil Rights ruled further in favor of the lesbian couple (AP)

The New Jersey Division on Civil Rights said its investigation found that the refusal of the Ocean Grove Camp Meeting Association to rent the oceanfront spot to the couple for their same-sex union in March 2007 violated the public accommodation provisions of the state’s Law Against Discrimination.

The legal resolutions on this case are far from settled.

Meanwhile, the parties in the dispute are awaiting a ruling from the 3rd U.S. Circuit Court of Appeals on whether the issue should be decided in the division on civil rights or in federal courts. A lower federal court has ruled that the state could consider the case.

This case highlights some of the conflict between religous and civil separations.

Churches can and do often operate outside the realm of the faith and doctrine. A church may own performance halls, bookstores, restaurants, or a great many other establishments, some of which have little to no religious function. And the further away they get from their central purpose, the more gray and hazy become the distinctions that allow them to claim religious exemption from civil rights laws.

A Catholic bookstore, owned and operated by a parish for use by parishoners, is probably exempt from hiring those who do not share Catholic faith. But it becomes much less clear that a Catholic-affiliated hospital who accepts Medicare and insurance payments can refuse to hire a Jewish doctor or provide care to a black Muslim.

As anti-discrimination laws run up against anti-gay theology, churches will have to decide whether they wish to ‘uphold their doctrines’ or keep their sideline businesses. This will become particularly sticky when those sidelines seem to be part of their mission and when those businesses are facing competition from secular sources. And public financing only complicates the matter.

Take, for example, the feeding of the poor.

As an act of Christian charity, many churches or other religious organizations make an effort to provide food to the less fortunate. Not always, but quite often, this charitable act comes with the price of listening to a sermon or having someone pray with/over/about the hungry. And while most of these efforts are voluntary, some are large enough and sufficiently well funded so as to employ staff.

This is not a problem when its a local church helping out the neighbors. But churches have, in many instances, ceased thinking of their efforts as a duty or an outreach of their faith and have instead began to view their efforts as a service provider for the needy. And, as such, they see the government and public funds as a logical source for paying for their efforts.

What would have been considered bizarre but a century ago – “faith based” initiatives funded by taxpayers but managed according to religious doctrines – now seems quite acceptable and even laudable. And religious organizations are clamoring for their place at the public trough, while simultaneously demanding exemptions from government strings or any duty to the taxpayers.

The Ocean Grove Pavilion is but a very visible instance of a religious body seeking the benefits of taxpayer largess while demanding the privileges of religious exemption. I expect many more such conflicts will arise.

UPDATE – 1/26/10

The Auditorium Pavilion is a separate structure from the Boardwalk Pavilion, the location requested by the couple for their civil union ceremony.