In its Nov. 9 editorial "Gay marriage, don't rush it," the Press recommended that the current state Legislature not act on the marriage equality bill. Were it to act now, in the lame duck session, New Jersey would be deprived of discussion, the editorial said.
The editorial also acknowledged the failure of the civil union law to provide the quality marriage does - and the pain that failure has inflicted upon same-sex couples. As in previous editorials, the Press recognized that some same-sex couples have been "denied access to hospital rooms or the deathbeds of their partners," or have had "to go to war to obtain benefits they are entitled to under the law."
The solution, according to the Press: Enforce the current civil union law by penalizing those who violate it, then let's discuss marriage equality later.
The problem is that the Press has unwittingly advocated an impermissible solution. Penalizing employers who do not comply with the civil union law, versus having the Legislature enact a marriage equality law, would violate the U.S. Constitution.
Approximately half of all employers in New Jersey are exempt from complying with the state's civil union law. That's because federal law, not state law, applies to half of all employers in the state - and federal law expressly prohibits the recognition of same-sex couples.
A federal law called the Employment Retirement and Income Security Act exclusively governs all "self-insured" companies in the United States - that is, those companies that have created their own custom insurance plans for their employees. About half of all employers in New Jersey are self-insured and therefore fall out of the purview of state law, including the state's civil union law. No state may penalize companies that comply with federal laws. Federal law preempts state law here as a U.S. constitutional matter.
Why, then, would marriage equality be the solution? In Massachusetts, which has allowed same-sex couples to marry since 2004, the overwhelming majority of employers have chosen not to invoke the federal loophole. Employers there understand and respect the power of the word "marriage." Without the term "civil union" to hide behind, Massachusetts employers are loathe to discriminate against their gay employees. They would have to admit the reason for their discrimination.
A few years ago, a Press editorial steadfastly advocated equal benefits for the late Lt. Laurel Hester of Ocean County - the dying police officer whose partner was denied death benefits by county freeholders because the couple was gay and could not marry. Like millions of others across New Jersey, the Press was shocked that any governmental body in New Jersey could lack compassion and a sense of fairness.
The Press' editorial page should be equally committed to defending today's Laurel Hesters, who include a civil union couple in Central Jersey named Marsha and Louise. They have raised two children with profound special needs - one child with Asperger's and the other child with severe mental and physical developmental disabilities - in addition to their two other children. Marsha and Louise needed all the health care they could get to take care of their family.
But when Louise was looking for jobs, one prospective employer after another told her: We don't provide health benefits to couples in civil unions because civil unions are not marriage. Marsha and Louise wound up going into hundreds of thousands of dollars in debt to take care of their children. Last year, one of their disabled children passed away.
Our society should be celebrating Louise and Marsha. But because of the civil union law that falls short of marriage equality, they and their children are instead denied equal protection under the law.
New Jersey has been debating marriage equality for eight long years - far longer than any other issue in our collective memories. This is no rushed debate. For the sake of Louise and Marsha, and for families like theirs all across New Jersey, the time for the Legislature to act is now.
Steven Goldstein is Chairman and CEO of Garden State Equality. Since he founded the organization in 2004, New Jersey has enacted 210 LGBT civil rights laws at the state, county and local levels.