A state trial judge in New Jersey has ruled, based in large part on a 2006 decision from the New Jersey Supreme Court and the United States Supreme Court’s recent ruling in United States v. Windsor, that the Garden State must recognize same-sex marriage statewide:
A New Jersey judge ruled on Friday that the state must allow same-sex couples to marry, saying that not doing so deprives them of rights that were guaranteed by the United States Supreme Court in June.
It is the first time a court has struck down a state’s refusal to legalize same-sex marriage as a direct result of the Supreme Court ruling, and with lawsuits pending in other states, it could presage other successful challenges across the country.
The decision was a rebuff to Gov. Chris Christie, a Republican who vetoed a bill passed by the Legislature last year that would have allowed same-sex couples to marry. His office said it would appeal to the state’s highest court. And he is likely to seek a stay preventing same-sex marriages from beginning on Oct. 21, as the judge ordered.
New Jersey was particularly ripe for a challenge after the Supreme Court ruling, because of a previous ruling by the state’s highest court in 2006. In that decision, in the case Lewis v. Harris, the New Jersey Supreme Court ruled unanimously that same-sex couples were entitled to all of the rights and benefits of marriage. But the court stopped short of saying they had a fundamental right to marry, and in an unusual step instructed the Legislature to define how to confer equal protection.
“The ineligibility of same-sex couples for federal benefits is currently harming same-sex couples in New Jersey in a wide range of contexts,” Judge Mary C. Jacobson of State Superior Court in Mercer County wrote on Friday. “Same-sex couples must be allowed to marry in order to obtain equal protection of the law under the New Jersey Constitution.”
Legislators had responded to the 2006 court ruling by passing a bill to allow civil unions, but same-sex couples sued again, arguing that civil unions denied them many benefits, particularly in health care decisions and financial matters.
The United States Supreme Court’s ruling in June striking down the federal Defense of Marriage Act meant that the federal government must provide the same benefits to gay married couples as it does to heterosexual married couples. Justice Anthony M. Kennedy noted in his opinion that the ruling was “confined” to legal marriages, and several federal agencies have since said that partners in civil unions would not be extended benefits, including those having to do with immigration, tax status and health care. Thirteen states and the District of Columbia allow gay couples to marry.
The same-sex couples in New Jersey pressed for a fast judgment after the Supreme Court’s decision. Judge Jacobson agreed with the plaintiffs that the federal decision demanded a change in New Jersey, to abide by the state’s earlier ruling recognizing equal protection for gay couples.
“Under these circumstances, the current inequality visited upon same-sex civil union couples offends the New Jersey Constitution, creates an incomplete set of rights that Lewis sought to prevent, and is not compatible with ‘a reasonable conception of basic human dignity,’ ” she wrote, quoting from the earlier State Supreme Court decision.
While the decision is limited to New Jersey, gay rights advocates said that it would help fuel the argument that marriage is a fundamental right for gay couples.
“Other states may not have a Lewis decision that says that not giving same-sex couples an equal footing violates the Constitution, but I think that argument is available, and a vibrant argument to make,” said Hayley Gorenberg of Lambda Legal, who argued the New Jersey case on behalf of Garden State Equality and six gay and lesbian couples and their children.
The federal decision, she said, “made the freedom to marry even more urgent than before because the state stood between these families and a host of federal protections, benefits, rights and responsibilities.” She hailed Judge Jacobson’s ruling as “thrilling.”
Over at The Volokh Conspiracy,Will Baude is a bit skeptical about the logic of the Court’s ruling:
Both sides of the litigation agree that same-sex couples are entitled to access all of the same benefits as united heterosexual couples. That’s a consequence of the New Jersey Supreme Court’s interpretation of the state constitution in Lewis v. Harris. From 2006-2013, that obligation was satisfied by civil unions, which have the exact same effect under state law as marriage does.
At the same time, it is now evident that at the federal level, same-sex couples in civil unions are not receiving the same benefits as married same-sex couples. (This was a little less clear at the time New Jersey wrote its main brief, but the most recent agency actions pretty uniformly favor marriages over civil unions.)
So this is clearly a problem. The question is what to do about it. The plaintiffs want the state to let them get married. If same-sex couples can get married, they can get federal benefits. The state, by contrast, wants to blame the problem on the federal government. If the agencies would just recognize civil unions, the problem would go away.
This is actually a pretty interesting severability problem. If a constitutional problem arises because of the intersection of two different legal rules, how does a court decide which one to invalidate?
In this case, for example, you might say:
– The court should invalidate the state law; after all, one of the claims is brought under the state constitution, and under the Supremacy Clause, the state constitution can only be enforced against state law, not against federal law.
On the other hand, you might instead say:
– The court should invalidate the federal agency rulings. First of all, you can do that without reaching any constitutional questions, because there’s a plausible argument that purely as a matter of statutory interpretation, civil unions count as marriages and spouses under federal law. (I’ve briefly described this argument here.) Second of all, even if you have to reach a constitutional issue in this case, there’s a federal constitutional claim too, so you can invalidate the federal rulings instead.
Of course the Plaintiff’s in this case weren’t asking the Court to invalidate the Federal Agency rulings that Civil Unions weren’t entitled to equal treatment with marriages when it comes to the provision of benefits under Federal Law. Additionally, from what I’ve been able to determine, it doesn’t appear that the state was making this argument in their pleadings with the Court either, at least not very forcefully. That, combined with the fact that the case was being heard in a New Jersey trial court rather than Federal Court for what seem to be pretty obvious reasons of legal strategy, made it more likely that the Court would focus more on the state law issue raised (marriage) than on the Federal law issue (whether the distinction between civil unions and marriage under Federal Law is justifiable), Had this matter been brought in a Federal Court, the legal case likely would have evolved much differently. Again, this is why I suggest that the choice to bring the case in state court was more than just a coincidence, the Plaintiffs in this case are looking, ultimately, for a ruling from the State Supreme Court that says that, in light of Windsor, their 2006 ruling that gays and lesbians must receive the same benefits as straight married couples now means that that New Jersey must recognize same-sex marriage. This would be a significant change from 2006 when the Court essentially left the issue of how to resolve the inequality, a move that led the legislature to adopt civil unions in response.
Given that it’s an election year in New Jersey, and that the Governor of the state is an often mentioned potential candidate for President in 2016, the ruling immediately led to a discussion of the political consequences:
The ruling heightens the political drama for Mr. Christie, who is up for re-election in November, and is considered a leading candidate for his party’s nomination for president in 2016.
His Democratic opponent, State Senator Barbara Buono, called the ruling “a stark reminder that Governor Christie stands on the wrong side of history.”
“The courts have spoken and the people have spoken,” Ms. Buono added. “It is time for Chris Christie to stop blocking equal rights for all New Jerseyans.”
But the court ruling might not work against him in a presidential campaign as he courts conservative voters in key primary states. He frequently rails against the New Jersey Supreme Court as too liberal, and has tried to fill it with judges who would rule more conservatively on issues like affordable housing and school financing.
If the appellate court rules against him on same-sex marriage, and even opponents believe there is a strong chance it will, Mr. Christie could simply campaign against activist judges. He could even ask the appellate court to push the case immediately to the State Supreme Court for quick resolution.
When Mr. Christie vetoed the same-sex marriage bill, he urged lawmakers to put the issue before voters. The Democratic-led Legislature declined, saying that questions of civil rights should not be subject to a referendum.
The governor’s office, in a statement on Friday, signaled that he intended to make the Legislature, if not the courts, his boogeyman. “Since the Legislature refused to allow the people to decide expeditiously, we will let the Supreme Court make this constitutional determination,” the statement said.
In other words, the Administration is going to appeal this decision and continue to defend existing state law — which, again, allows civil unions for gays and lesbians and give them the same rights under state law as married couples — until the Supreme Court of New Jersey has had a chance to rule on the matter. Given that it is an interpretation of that court’s landmark decision that is at issue here, this seems entirely appropriate to me. Politically, meanwhile, it’s doubtful that Christie’s decision to pursue an appeal is going to hurt him in the upcoming Governor’s election and, as far as 2016 goes, it may actually help him with a GOP base that has been skeptical about him.
Here’s the Court’s opinion:
