First Interim Report of the New Jersey Civil Union Review Commission
|February 19, 2008|
Members of the Commission
J. Frank Vespa-Papaleo, Esq., Chairman
Steven Goldstein, Esq., Vice Chairman
Stephen J. Hyland, Esq., Secretary
Barbara G. Allen, Esq.
Rev. Charles Blustein Ortman
Robert Bresenhan, Jr.
Barbra Casbar Siperstein
Sheila Kenny, Esq.
Joseph A. Komosinski
Erin O’Leary, Esq.
Elder Kevin E. Taylor
Melissa H. Raksa, Deputy Attorney General (DAG)
On December 21, 2006, in response to the holding of the Supreme Court of New Jersey in Lewis
v. Harris, 188 N.J. 415 (2006), the Legislature enacted Public Law 2006, Chapter 103,
establishing civil unions for same-sex couples effective February 19, 2007. The intent of the
Civil Union Act (“the Act”) is to provide all the benefits and responsibilities of marriage to
same-sex couples in civil unions.1 The Act also established the New Jersey Civil Union Review
Commission (“the Commission” or “CURC”), to evaluate the effectiveness of the law and issue
semi-annual reports to the Legislature and Governor.2
The Commission is an independent body consisting of both public members and governmental
ex-officio members, consisting of six ex-officio members and seven public members, appointed
as follows: five appointed by the Governor with the Advice and Consent of the Senate, one
appointed by the Senate President, and one appointed by the Speaker of the General Assembly.
The six ex-officio members consist of the Attorney General, the Commissioners of the
Departments of Human Services, Banking and Insurance, Children and Families, and Health and
Senior Services, and the Director of the Division on Civil Rights.3
As of the date of the issuance of this report, one public member nominee has not yet been
approved by the Senate. Therefore, the members of the Commission are as follows:
Public Members (7):
Appointed by Senate President: Rev. Charles Blustein Ortman
Appointed by Assembly Speaker: Steven Goldstein, Esq.
Appointed by Governor: Robert Bresenhan, Jr.
Stephen J. Hyland, Esq.
Barbra Casbar Siperstein
Elder Kevin E. Taylor
Ex-Officio Members (6):
Director of the Division on Civil Rights: J. Frank Vespa-Papaleo, Esq.
Designee of Attorney General: Melissa H. Raksa, DAG
Designee of Department of Human Services: Barbara G. Allen, Esq.
Designee of Department of Banking & Insurance: Sheila Kenny, Esq.
Designee of Department of Health & Senior Services: Joseph A. Komosinski
Designee of Department Children and Families: Erin O’Leary, Esq.
For purposes of convenience and operational consistency, the Commission has been formally
placed in, but not of, the Department of Law & Public Safety. As of the date of this report, the
Legislature has not issued any appropriation for the costs of operating the Commission, which
includes the costs of transcription services, certified interpreters, advertising costs associated
with public notices, and other operational and administrative costs. Since there has been no
legislative appropriation for the operations of the Commission, it receives substantial fiscal and
staff support from the Division on Civil Rights.5
According to the Act, this Commission “shall report semi-annually its findings and
recommendations to the Legislature and the Governor.” The Commission will continue to study
and evaluate the Civil Union Act, and may issue legislative recommendations in any of its semiannual
reports, in accordance with the Act. This First Interim Report is unanimously endorsed
by the members of the Commission.6
According to the Act7 it is the duty of the Commission to study all aspects of the Civil Union
Act—which authorizes civil unions—including, but not limited to the following:
(1) To evaluate the implementation, operation and effectiveness of the Civil Union Act;
(2) To collect information about the Act's effectiveness from members of the
public, State agencies and private and public sector businesses and organizations;
(3) To determine whether additional protections are needed;
(4) To collect information about the recognition and treatment of civil unions by other
states and jurisdictions including the procedures for dissolution;
(5) To evaluate the effect on same-sex couples, their children and other family members
of being provided civil unions rather than marriage;
(6) To evaluate the financial impact on the State of New Jersey of same-sex couples
being provided civil unions rather than marriage; and
(7) To review the "Domestic Partnership Act," and make recommendations as to whether
this act should be repealed.
The Commission cannot yet issue a final report because it continues to examine all seven areas
as required by the Act. For example, at this time we have not evaluated the financial impact of
the Act on the State of New Jersey, in comparison to marriage,8 nor have we reviewed the
Domestic Partnership Act,9 as required by the Act. Other areas need further review as well.
These will be studied and reported on in the coming months.
The Commission held its organizational meeting in Trenton on June 18, 2007, and subsequent
public business meetings on July 18, 2007, August 15, 2007, November 14, 2007, December 19,
2007 and January 16, 2008.
In order to maximize the opportunity for public participation in the Commission’s evaluation
process, the body held three nighttime public hearings, on September 26, 2007 in New
Brunswick, Middlesex County; October 10, 2007 in Blackwood, Camden County; and October
24, 2007 in Nutley, Essex County. Together, the three hearings lasted nearly eight hours and
featured testimony from ninety-six people, including couples affected by the Act and expert
Notice of all public business meetings and public hearings were advertised in newspapers
throughout the State, on the Commission’s website located at www.NJCivilRights.org/curc, and
distributed widely by community organizations, website hosts and others. Additionally, a media
alert and press release was distributed on September 19, 2007 by the New Jersey Office of
Attorney General announcing the public hearings. The Commission website also serves as a
repository for Commission reports, transcripts, agendas, commissioner biographies, contact
information and other items.
At the public hearing on September 26, 2007, Lynn Fontaine Newsome, President of the New
Jersey State Bar Association,10 testifying on behalf of its nearly 17,000 members, concluded that
the New Jersey Civil Union Act is “a failed experiment.” 11
We believe the civil union law created a burdensome and flawed
statutory scheme that fails to afford same-sex couples the same
rights and remedies provided to heterosexual married couples as
required … by the New Jersey Supreme Court and its landmark
Lewis v. Harris decision.
From the Bar’s perspective, civil unions are a failed experiment.
They have shown to perpetuate unacceptable second-class legal
status. Members of the Bar Association tell me more stories of the
countless additional hours of work that must go into representing
gays, lesbians, bisexual clients and their families.12
At the public hearing on October 24, 2007, Ed Barocas, Legal Director of the American Civil
Liberties Union of New Jersey13 stated in unequivocal terms that:
By creating a separate system of rights and by injecting language
and titles not understood or easily incorporated into existing real
life events and transactions, the civil union law has failed to fulfill
its promise of equality.14
Additionally, the Commission heard testimony that New Jersey's Civil Union Act is likely not to
provide equality with the passage of time. An expert from Vermont, which in 2000 became the
first jurisdiction in the United States to enact a civil union law, testified that civil union couples
there still face problems with the law today. In fact, as a result of the inequities, Vermont has
established a new commission to study whether to amend its state law to now provide full
marriage equality to its same-sex committed couples.
This Commission also heard testimony that the term “marriage,” were it applied to the
relationships of same-sex couples, could remedy the shortcomings of the Civil Union Act and
make a significant difference in providing equality to same-sex couples in New Jersey, even with
the challenges of federal law not recognizing same-sex relationships. An expert from
Massachusetts, which in 2004 became the first U.S. state to allow same-sex couples to marry,
testified that same-sex married couples there do not face many of the problems that New Jersey
and Vermont civil union couples face today, even in the context of federal law.
This Commission also recognizes that the number of complaints filed to date by civil union
couples with the state Division on Civil Rights — the agency responsible for investigating noncompliance
with the Civil Union Act — cannot by itself be considered an accurate barometer of
the Act’s effectiveness. Compared to the number of couples who have filed complaints with the
Division on Civil Rights—six as noted by the New Jersey Family Policy Council15—a
significantly higher number of couples testified at the Commission’s public hearings about how
employers refuse to recognize their civil unions. In addition, advocacy organizations have
received, and newspaper investigations have reported, many more cases of the Act’s
ineffectiveness than have been filed with the Division. So, while the Division does investigate
all verified complaints of discrimination filed with its offices, it is clear that many more
complaints have been filed with third-party advocacy organizations.
Among those who participated in the hearings were representatives of:
• New Jersey State Bar Association
• Garden State Equality16 (GSE)
• New Jersey Family Policy Council (NJFPC)
• Lambda Legal17
• American Civil Liberties Union of New Jersey (ACLU-NJ)
• National Black Justice Coalition18 (NBJC)
• Parents, Families and Friends of Lesbians and Gays19 (PFLAG)
• Gay, Lesbian and Straight Education Network20(GLSEN)
• Counsel and plaintiff couples from Lewis v. Harris
• Attorneys who represent same-sex couples
• Leaders of numerous faith communities
• Lawyers and community leaders from Vermont21 and from Massachusetts22
• Same-sex couples, their children and families
• Parents of lesbian, gay, bisexual, transgender, and intersex youth
• Public officials, among others
This report will not recite all the testimony provided at public hearings or submitted in writing to
the Commission. Rather, this report will highlight relevant testimony that will assist the
Commission in answering its Legislative charge. For anyone interested in reviewing all the
public testimony, note that a copy of all transcripts of the public hearings is available at the
Commission’s website located at www.NJCivilRights.org/curc.
1. FOR THE OVERWHELMING MAJORITY OF CIVIL UNION COUPLES WHO TESTIFIED, THE
FEDERAL EMPLOYMENT RETIREMENT INCOME SECURITY ACT, COMMONLY KNOWN BY
ITS ACRONYM ERISA, IS THE REASON EMPLOYERS HAVE GIVEN FOR NOT RECOGNIZING
THEIR CIVIL UNIONS.
Under ERISA,23 “self-insured” companies – companies which create their own insurance plans
but may hire outside agencies to administer them – claim governance by federal law rather than
state law. In turn, because of the federal Defense of Marriage Act,24 any federal statute or
regulation that provides benefits to spouses, husbands, wives, or married couples applies only to
marriages between one man and one woman, thus resulting in covered employers continuing to
discriminate against same-sex couples.
Practically speaking, companies covered by ERISA, which comprise an estimated 50 percent of
all companies in New Jersey, have an option, rather than a requirement, to offer equal benefits
under the state’s Civil Union Act. Many companies are not exercising that option, even if State
law, as is the case in New Jersey, provides that spouses and civil union partners are entitled to
Additionally, being in a civil union can have a broad negative impact on couples whose civil
unions are not recognized by their employers.
A registered nurse from Commercial Township told the Commission she received a letter from
her employer, telling her that the hospital where she works would not be providing health
insurance for her partner:
It falls under the federal ERISA program, as someone else stated.
Our hospital is self-insured. Therefore, there is a loophole and
they do not provide her with health insurance.
So I wrote them a letter, a lengthy letter, reminding them of some
of the things that I had provided for the hospital through the years
and asked them to reconsider their decision. They never answered
So when I made the decision to come here tonight, I again called
my human resources director and I said, ‘You know, I'm going to
go up and I'm going to testify in front of this Commission.’ Well,
you can't imagine how fast my phone rang. I don't know where
this is going to go, but I know that my partner and I have seriously
considered dissolving our civil union, because it has put us in a
tremendously precarious financial position. Because now in the
event that something happens with her and she has no insurance
coverage, our entire estate is in jeopardy, rather than just half.25
2. IN MASSACHUSETTS, A MARRIAGE EQUALITY LAW HAS PROMPTED MANY EMPLOYERS
TO PROVIDE EQUAL BENEFITS TO SAME-SEX WIVES OR HUSBANDS.
Tom Barbera, a Massachusetts labor leader who works for the Service Employees International
Union and served as Vice President of the Massachusetts AFL-CIO, testified:
From the immediate weeks after May 17, 2004, when marriage
equality took effect in Massachusetts, right on through today,
ERISA has barely been an issue in Massachusetts. In the first
weeks of marriage equality, only a very few companies chose not
to provide retirement benefits under ERISA to same-sex married
couples. And from the day our marriage equality law took effect
through today, civil rights organizations in Massachusetts, as well
as our state government, have received virtually no
complaints about companies not providing health care benefits to
same-sex married couples.
It's not that ERISA-covered employers in Massachusetts don't
understand that federal law allows them to refrain from providing
benefits to same-sex married couples. It's that employers also
understand that without the term ‘civil union’ or ‘domestic partner’
to hide behind, if they don't give equal benefits to employees in
same-sex marriages, these employers would have to come forth
with the real excuse for discrimination. Employers would have to
acknowledge that they are discriminating against their employees
because they are lesbian or gay. And employers in Massachusetts
are loathe to do that, as they would be in New Jersey were you
to enact a marriage equality law.
Therefore, the existence of ERISA makes it all the more
important to change the nomenclature of civil unions to marriage.
As we've seen time and again in Massachusetts, the word
‘marriage’ has great persuasive weight in getting companies to
offer benefits notwithstanding ERISA.26
An Essex County electrician gave the Commission a preview of the potential effect of a marriage
equality statute in New Jersey. She testified that when she first sought benefits for her civil
union partner from her union, the union declined, citing ERISA. But when she later revealed she
and her partner had gotten married in Massachusetts, the union reversed itself and granted
The electrician told the Commission:
We can all talk about how the civil union law is supposed to work
just like marriage. But in my case and others, it doesn't work that
way in the real world. When you tell your employer or union you
are married, there's something about that word that makes them
recognize your relationship in a way they don't recognize it when
you tell them you are civil union. And because of their respect for
the word marriage, which is something they understand, they are
much less likely to invoke the federal law loophole. That's what
happened with us.27
The testimony suggests that numerous employers decline to provide insurance and health
benefits to civil union partners not because of an objection to the government recognition of
same-sex couples, but because of the term used by statutes establishing government sanctioned,
same-sex relationships. In fact, this Commission heard no testimony from civil union couples
indicating that employers have refused to comply with the Civil Union Act because of personal
objections to the law. Early indications suggest that recognition of marriage for same-sex
couples in New Jersey could make a meaningful difference in the area of spousal benefits.
3. THE TESTIMONY PRESENTED BY MANY CIVIL UNION COUPLES INDICATED THAT THEIR
EMPLOYERS CONTINUE TO DISCRIMINATE AGAINST THEM, DESPITE THEIR FAMILIARITY
WITH THE LAW.
Beth Robinson, Chair of Vermont Freedom to Marry and a lawyer who works with same-sex
couples in her state, testified to significant problems with the implementation of Vermont’s civil
union law, more than seven years after its enactment.
I have seen first-hand, both in my law practice and as an advocate,
that a civil union law, even when it’s been on the books for seven
years, too often deprives same-sex couples and their families the
protections that married heterosexual couples take for granted.
Based on the Vermont experience, I can tell you that it’s just not
true that if enough time passes, civil unions will achieve parity
with marriage. Time does not fully mend the inequality inherent in
two separate institutions.
Even now, I field phone calls from individuals whose employers
decline to provide spousal health insurance coverage for their civil
union partners even though those same employers provide spousal
health insurance coverage for heterosexual employees’ spouses.
As you know, some self-insured employers cite the federal law
known as ERISA as a basis for their not recognizing same-sex
To this day, we still encounter glitches arising from the creation of
a new legal status that forces employers and others to try to fit a
square peg, civil union, into a round hole, systems relating to
marriage. Just this summer, a same-sex couple joined in civil
union who owned a Limited Liability Company (LLC) business
together had to appeal for intervention by legislators to resolve a
misunderstanding with the tax department regarding their
eligibility for a tax exemption provided to LLC owners who are
married to one another.
Two weeks ago, I was on a call-in show, and heard from a state
employee who had discovered that her employer—the state—had
been withholding from her paycheck as if she were liable for a
state tax on the health insurance benefit provided to her partner,
even though the law clearly prohibits such taxation. When she
brought the matter to her employer’s attention, she was told that
her department’s software would not allow for the appropriate nonwithholding.
Who knows how many glitches like this, in both the public and
private sphere, go undetected because people don’t fully
understand their rights, or don’t realize what’s happening.
Judging from our having had a civil unions law on the books for
seven years in Vermont, and still having problems today, I can tell
you that civil unions will likely never provide the equality that
marriage does. It would be incorrect for you, as Commissioners,
or for the elected officials who appointed you, to assume that if we
just give civil unions time, they will work just like marriage.28
4. CIVIL UNION STATUS IS NOT CLEAR TO THE GENERAL PUBLIC, WHICH CREATES A
A common theme in the testimony gathered by the Commission was that while marriage is
universally recognized by the public, civil union status must be explained repeatedly to
employers, doctors, nurses, insurers, teachers, soccer coaches, emergency room personnel and
the children of civil union partners.
The testimony suggests that the need to explain the legal significance of civil union status to
decision makers and individuals who provide vital services is more than a mere inconvenience.
One witness showed the Commissioners a “flash drive” that he and his partner keep on key
chains. The flash drives contain living wills, advanced health care directives, and powers of
attorney for the couple, as they fear being unable to adequately explain their relationship to
emergency room personnel during a medical crisis. The witness testified that mixed-gender,
married couples need not live with this uncertainty because a mere declaration that someone is
the “wife,” “husband,” or “spouse” of someone who is ill will provide immediate access and
This testimony mirrored comments provided by many witnesses regarding medical personnel,
school officials and government workers who denied access and decision-making authority to
civil union partners, either initially or completely, because of a lack of understanding of the
rights that flow from civil unions. Many witnesses said they would not have encountered the
same level of resistance, or no resistance at all, had they been able to identify themselves as
Witnesses called the two-tier system created by the Civil Union Act “an invitation to
discriminate” and a “justification to employers and others” to treat same-sex couples as “less
than” married couples. Many witnesses testified that without the governmental endorsement of
differential treatment, many employers with ERISA-covered plans would be less inclined to
deny benefits to same-sex couples. In addition, several witnesses offered their view that
relatives, medical caregivers, and individuals in positions of authority take cues from the
government's decision to place same-sex couples outside of the institution of marriage.
According to the testimony, the Civil Union Act amounts to a tacit endorsement of
5. THE CIVIL UNION ACT HAS A DELETERIOUS EFFECT ON LESBIAN, GAY, BISEXUAL,
TRANSGENDER, AND INTERSEX (LGBTI) YOUTH AND CHILDREN BEING RAISED BY
Several clergy members and parents of LGBTI children testified that the statutory designation of
same-sex couples as “other than” and, impliedly, “less than” mixed-gender couples interferes
with the ability of LGBTI youth to accept their sexuality.
According to the witnesses, gay and lesbian youth are harmed by the reality that their
heterosexual siblings and age mates may expect to enter into marriages, but that the government
has declared that LGBTI people cannot have that expectation and must settle for a secondary
status as civil union couples.
A Montclair resident, the parent of three sons, one of whom is gay, testified that her gay son told
her when he was sixteen: “You know, all I really want is to get married and have children.”
‘Well,’ I said, ‘you have several friends whose parents are gay, …
Montclair is a pretty good place to be gay.’ And he looked up at
me. He kind of stared at me. He said, ‘But they're not married.’
And suddenly I got it. In a flash I knew my son is acutely and
perpetually aware that he is a second-class citizen and that he
cannot attain the status that the rest of us treasure.29
A Bergen County couple, who have adopted five young children, testified:
Our children have asked many questions. One of the questions …
asked of us was, ‘If all men are created equal, why can't you and
Poppy get married?’ I can't answer that question at this time. One
of the most recent questions that came up by one of my children
was, ‘I don't understand how someone on TV who has murdered
someone can get married, but you and Poppy cannot.’30
An attorney and partner in a small law firm in Springfield testified about a family discussion in
which his partner’s young nephew, to whom he is godfather, asked his mom:
‘If you and daddy are married and Uncle Timmy and Aunt Nancy
are married and Aunt Debby and Uncle Bruce are married, why
can't Uncle Bob and Uncle Chris get married?’
Lucas' mother told him ‘Because it's against the law.’ Lucas' reply
was, ‘Does that mean they're criminals, mommy?’31
6. MANY WITNESSES TESTIFIED ABOUT THE UNEQUAL TREATMENT AND UNCERTAINTIES
THEY FACE DURING A HEALTH CARE CRISIS, PARTICULARLY IN HOSPITAL SETTINGS.
A woman from South Jersey testified about her experiences at two local hospitals:
I was asked, ‘Are you married, single, widowed, divorced?’ I
said, ‘I'm partnered.’ Then I was asked, ‘Legally?’ Again, I was
shocked. I said, ‘Well, do you ask the married folks that?’ ‘No, I
don't.’ ‘So why are you asking me?’
Another incident was when I was going for a test, when I had to be
put under. I was telling the nurse that my partner was in the
waiting room. If any decisions had to be made while I was
unconscious, she was to make those decisions. Again I was asked,
‘Is she your legal partner?’ ‘Yes, she is.’ ‘Do you have your
certificate with you?’
I wasn't convinced she would go out and grab my partner should
something have happened to me.32
An Episcopal clergy-member from northern New Jersey who is in a civil union testified:
I've had to go through some medical testing and hospitalizations
for surgery. In our own UMDNJ right in Newark, when I got
there, they asked if I had a spouse. I said ‘yes’ and I told them.
They didn't know where to list him, because there was nothing on
the form that said anything about civil unions.
Just about two weeks ago I went to the new doctor I was referred
to. There was no place on the form for civil unions. My
experience, in general, most people in our communities look at this
as a second-class marriage, sort of. I don't even know if we would
use the term ‘marriage,’ it is below marriage. It is another form
and they know that is not the same.33
7. INSTITUTIONAL INTERACTION WITH CIVIL UNION COUPLES HAS BEEN LESS THAN
Several witnesses spoke of the lack of a “married/civil unioned” or “civil unioned” option on
government agency forms, leaving civil union couples in a quandary as to which box to check,
“married” or “single.” These couples expressed anger at having to consider checking off
“single.” In addition, some testimony suggested that civil union partners have experienced some
difficulty in obtaining government services which are required by law to be available to civil
Ed Barocas, Legal Director of the American Civil Liberties Union of New Jersey, and an
attorney in the Lewis v. Harris case, testified that:
A quick example, last week I went to a bank to open a line of
credit. In so doing, I was asked whether I was single or married.
A married man would simply say, ‘Well, I’m married.’ I asked the
employee what I should do if I was in a civil union. The employee
responded that he didn’t think New Jersey allowed civil unions.
So after explaining the law, I asked again what I was required to
put down. He said that civil unions were simply not contemplated
in the bank’s computer system and he didn’t know what the proper
answer would be or how he could proceed.34
A woman who purchased real estate in Brick, New Jersey and Florida stated the following:
I had to explain to my own insurance company and send them a
copy of our civil union from Vermont to have my name or to even
speak to them with regard to purchasing insurance for our home
here in New Jersey. I didn’t have to do that in Florida.35
A man who entered into a civil union testified:
And also when I went to the DMV to change my name, our names,
we both want the same last name. And at first they wouldn’t do it.
They said either I had to take his last name or we could both
hyphenate our names with our married husband’s name at the end.
But we couldn’t both have the same name.
And finally, the manager of the DMV we went and got him.
Coincidentally, the same day as our civil union, he was at a civil
union. He said his friends are having the same problem. He said,
‘Well, no one’s told me that I can’t do this. So I’ll do it until they
tell me I can’t.’ Still I had—we were there like an hour trying to
get it done.36
A state employee who lives in Mount Laurel testified about being called to jury duty and having
a judge ignore the possibility that some New Jersey residents are in civil unions. She told this
So I'm sitting there waiting for my turn to be called up and be
asked all the questions that the judge was going through. I felt like
I was hit with a ton of bricks, because the judge repeatedly asked
every person, ‘Are you single, are you married?’ I'm thinking,
how do I answer that, because I am not. I'm not single, I'm not
married. I'm in a court of law and here is a judge qualifying
candidates for the jury, and what I am is not represented in any
8. TESTIMONY INDICATES THAT THE CIVIL UNION ACT HAS A PARTICULARLY DISPARATE
IMPACT ON PEOPLE OF COLOR.
Dr. Sylvia Rhue, Director of Religious Affairs for the National Black Justice Coalition, testified:
Fourteen percent of lesbian, gay, bisexual, transgender and intersex
Americans are African-American. Forty-five percent of African-
American same-sex couples reported stable relationships of five
years or longer on the United States census.
When employers fail to recognize civil unions as equal to
marriage, the couples who get hurt the most are poor couples who
are often African-American couples, who cannot afford thousands
of dollars to hire fancy lawyers to draft documents like wills,
health care proxies, and powers of attorney.
And when employers fail to recognize civil unions as equal to
marriage and deny health care benefits to civil union partners,
there's a profound effect on those families' health care. Who are
among the families who can least afford cuts in their health care?
African-American families. Approximately one in five African-
Americans is currently without health insurance, some of whom
are in same-sex relationships.38
Rev. Anahi Galante, an interfaith minister in Jersey City who works with many in the Latino and
Latina community, testified:
Latinos now compromise 13.3 percent of the New Jersey
population. Same-sex couple households in which both partners
are Latino or Latina earn at least $25,000 less on average per year
than white same-sex couple households. Given the income and
other disparities between Latino and Latina same-sex couples and
much of the rest of the society, Latino and Latina people in New
Jersey are among those being hurt most by our State's continued
denial of marriage equality.39
9. THE REQUIREMENT THAT SAME-SEX COUPLES DECLARE CIVIL UNION STATUS, A
SEPARATE CATEGORY RESERVED FOR SAME-SEX COUPLES, EXPOSES MEMBERS OF THE
UNITED STATES MILITARY TO THE “DON’T ASK, DON’T TELL” POLICY.
Leslie Farber, an attorney in Montclair who chairs the GLBT40 Rights Section of the New Jersey
State Bar Association, spoke of one of her clients, whose partner serves in the United States
military. With the couple’s permission, she testified on their behalf, because they feared
testifying in person:
The serviceman will be called to duty overseas in the near future.
My client wants to protect his committed life-partner, so that his
partner leaves stateside with as many protections and benefits as he
can. A New Jersey civil union may be able to provide many of
those benefits and protections. But a designation of ‘civil union’ is
a factual statement this serviceman is a gay man and thus violates
the U.S. military’s policy of ‘Don’t Ask, Don’t Tell.’41
10. THE CLASSIFICATION OF CIVIL UNION MAY PLACE MARITAL STATUS IN QUESTION WHEN
ONE OR BOTH OF THE PARTNERS IS TRANSGENDER.
Ms. Farber also testified on behalf of couples where one of the partners has had gender
[A] client of my own, who wishes to remain anonymous for the
same reasons, was a man who legally married a woman about 20
years ago and recently is transsexual. This client went through
sexual reassignment surgery and is now legally a woman.
However, the entire family remains together and is happy.
However, even though the same two people remain married to
each other because of her gender change this client is now married
to another woman; in other words, a legally married same-sex
couple in New Jersey. However, this client is concerned that she
now is at risk of having her once valid marriage downgraded to a
civil union. Is this what the legislation intended? Isn’t it truly
cruel to leave this family in legal limbo? And, of course, marriage
equality would solve this problem instantly.42
A male-to-female transgender person from New Milford, New Jersey who married a woman 27
years ago testified:
There is not one straight couple in this state who has been harmed
because we are in a same-sex marriage. Nobody has been hurt.
When someone has gender reassignment surgery, the State of New Jersey considers that person
to be of a new gender. Thus, if that person had been married before, he or she is now part of a
same-sex married couple. But because New Jersey does not recognize same-sex married couples
as married, are such couples still considered married under state law? The Commission will
continue to study the effects of the Civil Union Act on transgender couples.
As a result of public hearings and testimony provided to the New Jersey Civil Union
Review Commission in 2007, the Commission unanimously issues the herein first interim report,
1. For the overwhelming majority of civil union couples who testified, the federal
Employment Retirement Income Security Act, commonly known by its acronym
ERISA, is the reason employers have given for not recognizing their civil unions.
2. In Massachusetts, a marriage equality law has prompted many employers to
provide equal benefits to same-sex wives or husbands.
3. The testimony presented by many civil union couples indicated that their
employers continue to discriminate against them, despite their familiarity with the
4. Civil union status is not clear to the general public, which creates a second-class
5. The Civil Union Act has a deleterious effect on lesbian, gay, bisexual,
transgender, and intersex youth and children being raised by same-sex couples.
6. Many witnesses testified about the unequal treatment and uncertainties they face
during a health care crisis, particularly in hospital settings.
7. Institutional interaction with civil union couples has been less than optimal.
8. Testimony indicates that the Civil Union Act has a particularly disparate impact
on people of color.
9. The requirement that same-sex couples declare civil union status, a separate
category reserved for same-sex couples, exposes members of the United States
military to the “Don’t Ask, Don’t Tell” policy.
10. The classification of civil union may place marital status in question when one of
the partners is transgender.
The Commission further recognizes the need for additional evaluation and review, in
accordance with the New Jersey Civil Union Act. As such, it will be scheduling public
meetings in 2008 to obtain further information and data from interested parties, including
members of the public, State agencies, businesses, and others, in accordance with the
Commission’s statutory mission. The Commission will continue to study, evaluate and
report its findings and recommendations until the issuance of a final report within three
years of the creation of this Commission, in accordance with the Act.
J. Frank Vespa-Papaleo, Esq., Chairman
Steven Goldstein, Esq., Vice Chairman
Stephen J. Hyland, Esq., Secretary
Barbara G. Allen, Esq.
Rev. Charles Blustein Ortman
Robert Bresenhan, Jr.
Barbra Casbar Siperstein
Sheila Kenny, Esq.
Joseph A. Komosinski
Erin O’Leary, Esq.
Melissa H. Raksa, DAG
Elder Kevin E. Taylor
1 N.J.S.A. 37:1-30, et seq.
2 N.J.S.A. 37:1-36.
3 N.J.S.A. 37:1-36b.
4 On February 5, 2007, Governor Jon S. Corzine nominated a member of the public for membership to the
Commission. To date, the position remains vacant.
5 The Commission acknowledges the assistance of the following individuals from the Division on Civil Rights staff:
Estelle Bronstein, Esq., Benn Meistrich, Esq., Ralph Menendez, Esther Nevarez, Nancy Reinhardt, and former staff
member Bear Atwood, Esq.
6 The Commission also wishes to acknowledge the invaluable work of its former member, the Honorable Patrick
DeAlmeida, who resigned from the Commission upon his appointment to the State Judiciary.
7 N.J.S.A. 37:1-36c.
8 N.J.S.A. 37:1-36c(6).
9 N.J.S.A. 37:1-36c(7).
10 The New Jersey State Bar Association’s mission is “[t]o serve, protect, foster and promote the personal and
professional interests of its members; [t]o serve as the voice of New Jersey attorneys to other organizations,
governmental entities and the public with regard to the law, legal profession and legal system; [t]o promote access to
the justice system, fairness in its administration and encourage participation in voluntary pro bono activities; [t]o
foster professionalism and pride in the profession and the NJSBA; [t]o provide educational opportunities to New
Jersey attorneys to enhance the quality of legal services and the practice of law.; and [t]o provide education to the
New Jersey public to enhance awareness of the legal profession and legal system.” See www.njsba.com.
11 Transcript 9/26/07, p. 7.
12 Transcript 9/26/07, p. 8-9.
13 The American Civil Liberties Union of New Jersey (ACLU-NJ) is the 15,000-member state chapter of a national
organization which “is the leading organization dedicated to defending and extending civil liberties for all people in
this country.” See www.aclu-nj.org.
14 Transcript 10/24/07, p. 8.
15 The New Jersey Family Policy Council is an organization whose stated mission is “to intervene and respond to
the breakdown that the traditional family, the cornerstone of a virtuous society, is experiencing.” See
16 Garden State Equality, consisting of 22,000 members, is New Jersey’s statewide organization advocating equality
for the lesbian, gay, bisexual, transgender and intersex community. See www.GardenStateEquality.org.
17 Lambda Legal is a national organization “committed to achieving full recognition of the civil rights of lesbians,
gay men, bisexuals, transgender people and those with HIV through impact litigation, education and public policy
work.” See www.lambdalegal.org.
18 The National Black Justice Coalition is a “civil rights organization dedicated to empowering Black same-genderloving,
lesbian, gay, bisexual, and transgendered people. The Coalition works with our communities and our allies
for social justice, equality, and an end to racism and homophobia.” See www.nbjc.org.
19 Parents, Families and Friends of Lesbians and Gays (PFLAG), with over 200,000 members, “promotes the health
and well-being of gay, lesbian, bisexual and transgender persons, their families and friends through: support, to cope
with an adverse society; education, to enlighten an ill-informed public; and advocacy, to end discrimination and to
secure equal civil rights.” See www.pflag.org.
20 The Gay, Lesbian & Straight Education Network (GLSEN) “strives to assure that each member of every school
community is valued and respected regardless of sexual orientation or gender identity/expression.” See
21 The Vermont Civil Union Law went into effect July 1, 2000. See 18 V.S.A. § 42 (2000).
22 Massachusetts same sex marriages were recognized as of May 17, 2004 by the finding of the Supreme Judicial
Court of Massachusetts in Goodridge v. Department of Public Health, 798 N.E. 2d 941 (Mass. 2003).
23 The Employee Retirement Income Security Act, 29 U.S.C. Chapter 18.
24The Defense of Marriage Act, 28 U.S.C. § 1738C.
25 Transcript 10/10/07, p. 21-24.
26 Transcript 9/26/07, p. 37-40.
27 Transcript 9/26/07, p. 43-45.
28 Transcript 9/26/07, p. 33-36.
29 Transcript 9/26/07, p. 59-60.
30 Transcript 9/26/07, p. 57.
31 Transcript 9/26/07, p. 76.
32 Transcript 10/10/07, p. 35.
33 Transcript 10/10/07, p. 11-14.
34 Transcript 10/24/07, p. 9.
35 Transcript 10/24/07, p. 50-51.
36 Transcript 9/26/07, p. 98-99.
37 Transcript 10/10/07, p. 64-67.
38 Transcript 9/26/07, p. 53-57.
39 Transcript 10/10/07, p. 49-53.
40 Gay, Lesbian, Bisexual and Transgender.
41 Transcript 9/26/07, p. 19-22.
42 Transcript 9/26/07, p. 21-22.