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October 24, 2013

Re: Same Sex Marriage

Dear Mayor,

Due to the recent court decision regarding same sex marriage and the Governor’s subsequent decision to not appeal that case, same sex marriages may now be performed in New Jersey. In response to inquiries we have received, the League would like to provide guidance to all local elected officials regarding the performance of same sex marriages. There are two important points for municipal officials to keep in mind. First, municipal officials who officiate over same sex marriages will follow the same practices that are laid out under New Jersey law concerning the marriages of heterosexual couples. Second, municipal officials who choose to officiate over weddings must officiate over both heterosexual and same sex marriages. We will discuss these points further below.

New Jersey law, under Title 37, lays out the requirements for the officiating of marriages. These requirements now apply to same sex marriages. Among other things, a 72 hour waiting period is required before a couple can be married. This, however, may be waived by a superior court judge or if the couple was married in another state as they would be entering into a remarriage. Same sex couples, who were previously in civil unions, can marry their current civil union partner by following these procedures without getting their civil union dissolved. If an individual in a civil union wishes to marry someone else, they must first dissolve their civil union. For more information on same sex marriage, please see the New Jersey Department of Health’s website here - http://www.state.nj.us/health/vital/faq.shtml#ssm

Municipal officials, who decide to officiate over marriages, must be willing to officiate over both heterosexual and same sex marriages. By refusing to officiate over same sex marriages, municipal officials would likely be violating the New Jersey Law Against Discrimination (NJLAD). In 2007, the New Jersey Attorney General, in a formal opinion, advised the Department of Health that it would be a violation of NJLAD for municipal officials to officiate over heterosexual marriages and refuse to officiate over same sex civil unions. This was because, under NJLAD, marriages and civil unions were both “accommodations, advantages, and privileges” which cannot be precluded to New Jersey citizens on the basis of sexual orientation. This reasoning would also extend to marriages.  An official cannot refuse to officiate over same sex marriages while being available for heterosexual marriages. However, an official may refuse to officiate over all marriages and would therefore be in compliance with NJLAD. The 2007 Attorney General opinion can be found here- http://www.nj.gov/oag/newsreleases07/civil-union-clergy-letter.pdf

The League will continue to update you as new information and directions become available. If you have any questions please contact the League’s Staff Attorney, Edward Purcell at (609) 695-3481 x 137 or epurcell@njslom.org

Very Truly Yours,

William G. Dressel, Jr.
Executive Director

 

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