Same-sex marriage suit fails in court
Aberdeen couple optimistic on chances with their appeal
BY MICHELLE ROSENBERG
Staff Writer

FILE PHOTO Karen (l) and Marcye Nicholson-McFadden are one of seven couples in New Jersey fighting to have same-sex marriage legalized in the state.

The legal battle over same-sex marriages will move up to the state Supreme Court, after losing in a 2-1 decision on the Appellate level last week.

The decision came roughly six months after the case was argued in front of a three-judge panel.

Seven same-sex couples, who are being represented by Lambda Legal, New York, argued that it is their constitutional right to be able to marry each other. They argued that they should be entitled to the same civil rights as opposite-sex couples.

Among those couples are Karen and Marcye Nicholson-McFadden, of Aberdeen.

“We’ve been denied equality and have been treated as second-class citizens,” Karen Nicholson-McFadden said of the decision.

Judge Donald G. Collester sided with the plaintiffs.

“The right to marry is effectively meaningless unless it includes the freedom to marry a person of one’s choice,” Collester said in his 31-page dissent. “The argument is circular: plaintiffs cannot marry because by definition they cannot marry. But it has the advantage of simplicity. If marriage, by definition, excludes plaintiffs from marrying persons of their choosing, then, unlike all others, they have no fundamental or constitutionally protected right and must seek creation of that right through the political process and a legislative redefinition of marriage.”

The other two judges felt that there is nothing in the Constitution that guarantees same-sex couples the right to marry.

“Plaintiffs have failed to identify any source in the text of the New Jersey Constitution, the history of the institution of marriage or contemporary social standards for their claim that the Constitution mandates state recognition of marriage between members of the same sex,” Judge Stephen Skillman said. “Plaintiffs’ claim of a constitutional right to state recognition of marriage between members of the same sex has no foundation in the text of the Constitution, this nation’s history and traditions, or contemporary standards of liberty and justice,” he said.

Skillman also pointed out that the Domestic Partnership Act, which was enacted on Jan. 12, 2004, offers same-sex couples many of the legal benefits that are available to married couples.

As time passed, and the judges contemplated the case, Nicholson-McFadden said she held out hope that they would rule in her favor.

“It’s obviously sad and upsetting, but it’s not a total surprise,” Karen Nicholson-McFadden said of the decision.

The case will now move up to Supreme Court level, where the plaintiffs are hopeful the decision will go in their favor.

“We’re very, very excited to go to the New Jersey Supreme Court,” Karen Nicholson-McFadden said.

The Supreme Court has a history of being in favor of minority rights, and that is where the case needs to be heard, she said.

The case was originally filed in 2002. In 2003, the state won, leading to the appeal.