Why A Marriage Equality Referendum Is The Wrong Strategy For New Jersey

New Jersey lawmakers have all of 2013 to override Gov. Christie's marriage equality veto.

This week’s victories for marriage equality in Maine, Maryland, Minnesota, and Washington certainly raise hopes for other states to recognize same-sex couples as well, but some of the enthusiasm for New Jersey has been misplaced. The New Jersey Star-Ledger wrote today that it’s “time for New Jersey to vote on gay marriage,” calling on the state’s legislature to “call Gov. Chris Christie’s (R) bluff” and put the question on the ballot, as Christie proposed when he vetoed a marriage equality bill earlier this year. The Advocate also entertained a similar suggestion. While the editorial board’s optimism is commendable, its approach is not in the best interest of gays and lesbians.

Regardless of recent success, voting on civil rights is still a dangerous and offensive experiment often forced by conservatives that should only be a last resort for LGBT advocates. The votes to uphold marriage equality in Maryland and Washington only took place because opponents petitioned for a challenge to laws passed by the states’ legislatures. In Maine, challengers successfully overturned the will of the legislature using that process in 2009, so a people’s vote to reverse it was the only practical avenue to equality left — hence, this year’s ballot initiative. In New Jersey, there is no people’s veto process like in those other states, and there is also no ballot initiative petition process. The only way the public can vote on a law there is if the legislature gives them the opportunity to, and there are plenty of reasons why it is not — and likely never will be — an appropriate time for that step.

First of all, it’s unrealistic to assume from this week’s results that the pursuit of marriage equality will always be successful. It was only seven months ago that North Carolina passed its amendment banning any and all legal recognition of same-sex relationships. A May poll showed 53 percent of New Jersey voters support marriage equality, a slim margin.  Garden State Equality, New Jersey’s preeminent LGBT advocacy organization, opposes the referendum process, pointing out that it’s a very expensive gamble on civil liberties:

Let’s be real about what a referendum is – it’s not just a contest of popular opinion.  A referendum is also a contest of which side can raise more millions.  A referendum puts a community’s civil rights up for sale to the highest bidder.  Would you want your civil rights to be at the mercy of the financial infestation of our political system?  Aren’t we sick of the Super PAC lies that slice our society with hate?  Can you imagine the exponential hate – and cost – that would infest a marriage equality referendum in hardball New Jersey?

Studies have also shown that state marriage referenda have many negative impacts on the gay and lesbian people living in that state, even if they do not participate at all in advocacy. Among these side effects are heightened stress — both for LGBT individuals and their children — divided families and communities, and extra psychological risk for those who engage in the hostile political campaign. Maine, Maryland, Minnesota, and Washington may have arrived at victory, but they endured millions of dollars of attack ads in the process.

New Jersey has several avenues to marriage equality that can avoid these circumstances. First, the legislature has until the end of 2013 to override Christie’s veto. Though the override does not yet have the 2/3 majority necessary, this is the solution Garden State Equality is supporting. At the same time, a lawsuit is advancing challenging the state’s civil unions law, arguing that it doesn’t offer equality for same-sex couples. The New Jersey Supreme Court ruled in 2006 (Lewis v. Harris) that the state’s constitution guarantees same-sex couples “every statutory right and benefit conferred to heterosexual couples.” The legislature at that time utilized the flexibility granted by the Court to pass civil unions instead of marriage, but created a review commission to ensure the ruling was upheld. That commission found in 2008 that civil unions certifiably fall short of this goal, suggesting the suit has a high potential for success.

Either the lawsuit’s success or the veto override could guarantee equality without the expensive, harmful, and risky process of a referendum. In addition, voters could elect a new legislature and governor in 2013 that won’t obstruct the progress of freedom. It’s unclear if any circumstances would ever suggest a referendum is the best option in New Jersey, but mere optimism from victories in other states is definitely not sufficient reason to abandon the other efforts.