Chris Christie’s Dance to Keep Up with Gay Marriage

Matthew Cooper
National Journal

When the Supreme Court struck down the Defense of Marriage Act last week, no politician found himself with a harder job navigating the gay marriage waters than New Jersey Gov. Chris Christie.

New Jersey is the last state in the Northeast, save for Pennsylvania, where gay marriage is still illegal and it's a state where gay marriage is popular. A Quinnipiac poll conducted earlier this year found 64 percent of state voters supporting gay marriage and only 30 percent opposed. That makes it a great state for activists to target – and a looming headache for Christie, an outspoken gay marriage opponent.

"New Jersey is the epicenter for the next battle over marriage equality," says Udi Ofer, executive director of the state's ACLU.

Christie's record on the issue is consistent but complex. In 2012 he vetoed a bill that would have legalized gay marriage, the first bill of its kind ever sent to a New Jersey governor. Last week, he blasted the Supreme Court's DOMA ruling not only labeling it "a bad decision" but decrying it "judicial supremacy." "I don't think the ruling was appropriate. I think it was wrong. They, the Court, without a basis in standing, substituted their own judgment for the judgment of a Republican Congress and a Democratic President," he told a New Jersey radio station. He repeated his insistence that he'd veto a bill again.

But Christie has left himself an out for the past couple of years. The 50-year-old governor has said that he'd abide by a ballot initiative that would let Garden State voters directly decide whether or not they support same-sex marriage. If "the people in New Jersey, as some of the same-sex marriage advocates suggest the polls indicate, are in favor of it then my position would not be the winning position but I'm willing to take that risk because I trust the people of the state," Christie told CNN when he vetoed the gay marriage bill in 2012.

Christie should be careful of what he wishes for. A ballot initiative over gay marriage would put New Jersey in the middle of the national fight over gay marriage, with the governor put in the awkward position of opposing the measure but supporting the outcome. He'd risk coming across as too passive to social conservatives, an important voting bloc if he plans to run for president and needs to court early-state voters in Iowa and South Carolina. But if he campaigns for the initiative he could lose, looking politically weak and, making himself less attractive to the Democrats and independents who have rallied to his side lately.

For the moment, Christie is lucky that same-sex marriage advocates seem to be divided on the referendum issue. Senate President Stephen Sweeney is against putting a civil-rights issue to voters, but Assemblyman Reed Gusciora, who is gay, has sponsored a referendum, "I still don't think [litigation] is a slam dunk and if the court rules in our favor it could be appealed," Gusciora said.

Outside the ballot box, advocates of same-sex marriage have other avenues to pursue in New Jersey and Christie must weigh the political risks of how hard he wants to block them.

This week advocates of gay marriage, less than a week after Justice Anthony Kennedy issued his DOMA opinion, will be in New Jersey Superior Court to argue their case, armed with the Supreme Court ruling. The Lambda Legal foundation and same-sex couples challenging the law will ask for summary judgment striking down the civil union legislation and requiring same sex marriage.

That poses a dilemma for Christie. The state's attorney general, who is appointed by Christie, will have 30 days to contest the suit. If that's what happens, the state will have a tougher fight than it would have a month ago. The Supreme Court's striking down of the DOMA statute gave gay marriage advocates plenty of ammunition around the country but perhaps nowhere more than in New Jersey.

Why? In 2006, New Jersey's Supreme Court ruled that gays were entitled to all of the privileges of marriage and left it to the legislature to decide how to carry that out. The legislature responded by passing a measure creating civil unions in New Jersey. Today, some 6,500 couples are in one. While legal advocates have always argued that civil unions were discriminatory compared to same-sex marriage their case is now significantly strengthened. Now New Jersey gays are the only ones in the Northeast who are not entitled to the myriad federal benefits that the Supreme Court just made available to those in same-sex marriages. "The Supreme Court just gave us 1138 new reasons and inherently unequal and unfair," the ACLU's Ofer told me referring to the estimated number of federal benefits and laws pertaining to marriage.

For his part, Christie would seem to support that underlying premise. This is what he said when he vetoed the gay marriage bill: "I have been just as adamant that same-sex couples in a civil union deserve the very same rights and benefits enjoyed by married couples—as well as the strict enforcement of those rights and benefits." How can he argue differently now when those in civil unions will be denied a panoply of benefits?

The other avenue to bring gay marriage to New Jersey is through the state legislature. Democrats still have time to override Christie's veto, and would seek to put pressure on wavering Republicans to switch votes. If Christie had to organize Republicans to fight the override attempt, he'd be vulnerable to criticism that he's fighting for a conservative social agenda in a liberal-leaning state– a charge that his Democratic opponent Barbara Buono has amplified lately.

Christie has been masterful at tacking right early in his term on pension reform to thrill conservatives, but has moved back to the center as his re-election approaches. He lavished praise on the Obama administration for its generosity with relief aid while chiding the Republican-led House for its tight-fistedness with regard to same. It's one of the main reasons he's likely to clobber Buono in the November general election.

But gay marriage will be a trickier test for the governor. His home state may support gay marriage but the activists who pick Republican presidential nominees surely do not. And he hasn't done any favors for them lately. If Christie plans on running for president in 2016, he may have to spend some of his hard-earned political capital opposing gay marriage – even though it could hurt his standing back home.