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High court ruling on same-sex marriage energizes state efforts

By Joseph Ax

NEW YORK (Reuters) - Gay rights activists asked a New Jersey judge on Wednesday to declare same-sex marriage legal in the state, citing last week's Supreme Court ruling striking down the federal law defining marriage as between a man and a woman.

Litigation has also been filed in other states since the Supreme Court extended federal benefits to married same-sex couples in the Windsor decision.

Hayley Gorenberg, a lawyer for Lambda Legal which represents several same-sex couples in a lawsuit against New Jersey, said the U.S. high court's decision last week in Windsor v. U.S. made it "crystal clear" the state's law allowing civil unions for gay couples does not provide equal rights.

"By denying same-sex couples equal federal rights ... the New Jersey statutory scheme shows itself to be unjustifiable discrimination," a motion for summary judgment filed Wednesday in Mercer County Superior Court said.

The state will have a month to reply to the motion and arguments would be scheduled for mid-August. A spokesman for the attorney general declined to comment on pending litigation.

Elsewhere, plaintiffs in two cases in New Mexico have petitioned that state's supreme court to take up the issue. Lawyers for plaintiffs in two other lawsuits in Illinois plan to file motions based on Windsor soon.

In Michigan, a federal judge on Tuesday cited the Windsor case in allowing a trial on a challenge to the state's constitutional ban on same-sex marriage.

The U.S. Supreme Court case involved a lesbian widow from New York, Edith Windsor, who paid higher estate taxes after her wife died in 2009 because their marriage was not recognized by the federal government under the Defense of Marriage Act (DOMA).

In a 5-4 ruling, the court found that DOMA violated the U.S. Constitution's guarantee of equal protection. In a second case, it paved the way for legalizing same-sex marriage in California.

But the justices stopped short of declaring a nationwide right to same-sex marriage, and both proponents and opponents have vowed to continue the fight state by state.

In 2006, New Jersey's highest court ruled that the state constitution guaranteed equal rights for same-sex and heterosexual couples. The state legislature then passed a law creating civil unions as a way to ensure same-sex couples would have equal rights without changing the definition of marriage.

Two years ago, Garden State Equality, an organization that advocates for gay rights, and several gay couples sued, arguing the civil union law failed to provide equal rights for same-sex couples, an assertion the state disputed.

With DOMA struck down, Gorenberg said there was no longer any question that civil unions are inequitable, since same-sex New Jersey couples in civil unions remain ineligible for federal benefits even as married same-sex couples in other states will now receive them.

Jordan Lorence, a lawyer with Alliance Defending Freedom, a group opposed to same-sex marriage, said proponents were reading too much into Windsor.

New Jersey is shaping up as a key battleground state as Democrats in the legislature hunt for enough votes to overturn Governor Chris Christie's veto of same-sex marriage legislation last year.

Christie, a Republican running for re-election this fall, has faced criticism from his Democratic opponent over the veto.

Same-sex marriage is legal in 13 states and the District of Columbia. Court challenges are pending in at least eight states that do not allow the unions, according to James Esseks, the director of the American Civil Liberties Union's LGBT Project.

"With DOMA gone, the disparities between the protections that civil unions provide and the protections that marriage provides are startling in their breadth," he said.

(Reporting by Joseph Ax; Editing by Jeffrey Benkoe and David Gregorio)

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