Tuesday, October 24, 2006

Gay marriage in New Jersey?

The New Jersey Supreme Court will be releasing its opinion in Mark Lewis, et al. v. Gwendolyn L. Harris, et al, No. A-68-05 -- the New Jersey gay marriage case -- tomorrow, the second to last day of Chief Justice Deborah T. Poritz's tenure on the court.

It has long been rumored that Chief Justice Poritz would author the main opinion in favor of granting marriage rights to gays. Whether that is the majority opinion or a dissent remains to be seen.

We guess we'll find out tomorrow.

In any event, the skinny from the Trenton streets is that Poritz was unable to get the 4 votes needed in favor of a right to gay marriage under the New Jersey Constitution and is stuck with just 3. How does it break down?

Rumor has it that newly-confirmed Chief Justice James R. Zazzali is a "no" vote and our guess is that Justice John E. Wallace, Jr. and Justice Roberto A. Rivera-Soto are also on the "no" side. Wallace and Rivera-Soto, although appointed by Democrats, are Repbulicans (at least in name) because they replaced Republicans on the court (New Jersey has always kept their Supreme Court at a 4-3 political split). We wouldn't describe them as conservatives, by any means, given that the New Jersey Supreme Court hasn't had a true conservative on it in many years.

With Poritz on the "yes" side is likely Justice Virginia Long, one of the court's more liberal members, and either Justice Barry T. Albin or Justice Jaynee LaVecchia. Albin was put on the court by former governor Jim McGreevey and is a Democrat. We wouldn't necessarily call him a liberal, but he's sure no conservative. LaVecchia is a Republican who was put on the bench by Governor Christie Whitman. She is best described as a moderate, probably slightly more pro-business.

So if its a 4-3 no-marriage split, our guess is that the "no" votes are Zazzali, LaVecchia, Wallace, Rivera-Soto. That leaves dissents by Poritz, Long and Albin.

[Portions cross-posted]


After reading the comment, we wanted to clarify one thing: By no means are we predicting a 4-3 "no marriage" split. We talked with our people in Trenton and that was the general consensus on why it was taking so long -- Poritz was trying to win another vote (although the opinion might have been delayed so as not to be a center piece to Zazzali's confirmation hearing). This morning's news from New Jersey 101.5, however, noted that it was the "consensus" from both sides of the political aisle that the court would rule in favor of gay marriage. This is an activist court. It has been for 30+ years. We'll just have to wait and see what the decision is. We won't predict the ruling, but we will say that it won't be unanimous.

I think you are right - a 4-3 decision, but I think the rest of your analysis is wrong. If Poritz is for same sex marriage (and most court watchers would tend to agree), and if the majority was against it, there was no urgency for Portiz to issue a dissenting opinion during her tenure.

I think she will author the 4-3 decision in favor, and that by deciding the case while she was still on the court was the only way she could be certain of that outcome.

I think the 4/3 split is Poritz, Long, Zazzali and Albin versus LaVecchia, Wallace and Rivera-Soto.
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