The Superior Court of New Jersey's Appellate Division ruled two to one, with Judge Stephen Skillman writing that the "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."
Skillman found that homosexuals already have the right to marry, as long as the marriage is not to a member of the same sex. "Plaintiffs, like anyone else in the state, may receive a marriage license, provided that they meet the statutory criteria for marriage, including an intended spouse of the opposite gender." Therefore, the judge stated, the rights of homosexuals are not being abridged.
Judge Anthony J. Parrillo, concurring with Skillman, explored the difference between "the right to marry and the rights of marriage". The DPA gives same-sex couples the rights of marriage, Parillo wrote, but the qualifications for the right to marry are decided by the state, qualifications that include the presence of one man and one woman in the marriage.
In his dissent, Judge Donald G. Collester argued that "the right to marry is effectively meaningless unless it includes the freedom to marry a person of one's choice."
Last year, New Jersey passed the Domestic Partnership Act (DPA), which gave many benefits previously only available to married heterosexual couples to same-sex couples.
However, "absent legislative action, there is no basis for construing the New Jersey Constitution to compel the State to authorize marriages between members of the same sex," Skillman concluded in his opinion, which upheld the Superior Court of New Jersey's Law Division of Mercer County.
Parrillo added that any constitutional right for homosexual marriage should "come from democratic persuasion, not judicial fiat."
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