New Jersey LGBT Law

Recently, my husband Richard, and I joined our niece for dinner in Philadelphia. Because we often cross the river from New Jersey into Philadelphia for dinner, to shop, to visit a museum or for business, our niece said to me, Uncle Stephen, why don't you move to Philadelphia?

Because, I said, Pennsylvania doesn't respect our marriage. Every time Richard and I cross over this line into Philadelphia from New Jersey, our rights are taken away from us. We only get those rights back when we cross back over that line into New Jersey.

Crossing the line is very common these days, particularly in a large metropolitan area such as Philadelphia, or New York City. Most people never think twice about the differences between the laws of one state and another.

However for members of the LGBT community, crossing the line can mean the difference between no rights, some rights and full rights. In this column, I want to explore the changing legal recognition that comes about through something as mundane as driving across the Ben Franklin Bridge or taking the PATH trains from Manhattan to Jersey City.
Crossing the line can have profound and unintended effects not only on our rights as LGBT individuals, but on our rights and responsibilities as parents, spouses, and to each other. Let me share with you a few examples.

A lesbian couple I know decided to have a child by artificial insemination. Because this couple lived in Philadelphia, and because their baby was born in Philadelphia, the son they had jointly chosen to bring into the world and into their life was legally recognized by Pennsylvania as being a child born to a single mother. In order for their son to have two parents on his birth certificate, the non-birth parent had to undergo a second parent adoption - a legal procedure that is costly, time-consuming, and invasive of the family's privacy.

Contrast this with another lesbian couple I know who live in New Jersey. Because this couple was in a civil union when their child was born in a New Jersey hospital, both parents were named as such on their son's birth certificate. So long as the couple and their child remained in New Jersey, they can be secure in the knowledge that they have a legally recognized parent-child relationship. But what happens when this happy family crosses the line to spend a weekend at the beach in Rehoboth, Delaware? A birth certificate is not an absolute proof of parentage, because it is subject to challenge in court by the mother as well as others. In some states, such as Virginia or Ohio, there are constitutional and statutory prohibitions on the recognition of civil unions or same sex marriages that may endanger the non-birth parent's rights. When our New Jersey civil union couple travels to Delaware, they lose the presumption that they are both parents that arises because of their civil union. In order to protect their rights across the line, the New Jersey couple has to undergo a more formal determination of parentage that results in a judgment that is likely to be recognized in all states.

In another example, I am aware of a gay couple from Pennsylvania who crossed the line to Vermont and in 2001, obtained a civil union. However, because Pennsylvania doesn't recognize a civil union, when one partner died, the family prevented the surviving partner from claiming his longtime partner's remains, and denied him the opportunity to see to the burial of his partner.

Things are marginally better when crossing the line from New Jersey to New York. A few years ago, a gay man sued St. Vincent's Hospital in New York City for negligence and loss of consortium after his partner died due to the medical negligence of the hospital. Although the couple had crossed the line into Vermont and obtained a civil union, the court refused to recognize their legal relationship, and the surviving partner's suit was dismissed.
However, New York State has since begun recognizing same-sex marriages legally entered outside New York's borders. For couples that crossed the line into Canada, California, Massachusetts and Connecticut to legally wed, this is good news because it means that New York will treat their marriage with the same respect accorded to heterosexual married couples. Unfortunately, New York does not extend the same recognition and respect to civil union spouses who cross the line from New Jersey, Vermont or New Hampshire.

Another line that gets crossed by same-sex couples on a regular basis is that invisible line between rights and responsibilities provided by a state such as New Jersey or Massachusetts, and the rights and responsibilities provided to married couples under federal law. Yet another line we sometimes cross represents the border between the United States and another country. Although we may not cross these international lines as frequently as we do the lines between states, they nonetheless affect our lives.

When I was a young boy, I rode a bus to Virginia. When the bus arrived in the District of Columbia, the passengers rearranged themselves, with the black passengers moving to the back of the bus before we crossed the Potomac into Virginia. Although crossing the line today doesn't have the visible drama of the days of Jim Crow, the legal effect can be just as profound. As more states and countries extend (or deny) legal recognition of our rights and our relationships, we need to become more personally aware of exactly where our rights and responsibilities begin and end.

LGBT individuals and couples are as mobile as their heterosexual counterparts. Where you choose to live, work, and play, can make a significant difference in your life. In future columns, I will explore how simply crossing the line from one state or county to another affects your rights. I hope this column will bring you a greater understanding of how the simple act of crossing the line changes your life.