Dear Mayor:

We have received a number of inquiries at the League about the legality of same-sex marriages in New Jersey from local officials who want to know what to do if they are asked to grant marriage licenses to or perform ceremonies for such couples. Under current New Jersey law, such marriages are not legal in this state. (However, starting in July of 2004, same-sex couples will be able to acquire legal protections by registering under the New Jersey Domestic Partnership Act, as we noted in our Dear Mayor fax advisory of February 23, 2004.)

In a November 5, 2003 decision, Mark Lewis and Dennis Wilson et al v. Gwendolyn Harris, Docket No. MER-L-15-03, the Law Division of the New Jersey Superior Court held that New Jersey's marriage statutes do not permit same-sex marriages. The Court found that "…the marriage laws of this state, taken as a whole, do not support a conclusion that the legislature intended for same-sex couples to have the authority to marry…(I)t seems clear that the Legislature intended marriage certificates to be granted only to couples of the opposite sex." This case is currently on appeal, and we will keep you informed of further developments on this subject.

It is also worth noting that N.J.S.A. 37:1-15 makes it a misdemeanor to perform a marriage "…without the presentation of a license therefore, obtained in accordance with the provisions of…(N.J.S.A.)37:1-2…" Unless and until the New Jersey Courts or Legislature make it legal to issue same-sex marriage licenses, a person who performs a same-sex marriage can be prosecuted under this statute, just as he or she could be prosecuted for performing an opposite sex marriage without a valid marriage license.

Should you have any questions or concerns about this communication, please contact Deborah M. Kole, Staff Attorney, at the League, ext. 37, or at dkole@njslom.com