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New Jersey Becomes the Fourteenth State to Allow Same Sex Marriage

marryIn Mr. Yudes’ June, 2013 blog post, he discussed the landmark decision of the United States Supreme Court in United States v. Windsor to strike down the Defense of Marriage Act (“DOMA”) as unconstitutional due to its denial of equal protection to same sex couples.  The Defense of Marriage Act limited the definition of a “marriage” to only include a union between a man and a woman.    Therefore, federal rights and benefits afforded to married opposite-sex couples were being denied to same-sex couples, even to same-sex couples who were legally married under the marriage laws of their State.

The Decision in Windsor, put into question whether same sex marriages would be recognized in New Jersey.  In the case of Lewis v. Harris, 188 N.J. 415 (2006), the New Jersey Supreme Court stated that the Legislature should afford same sex couples the same rights as married couples, either by allowing same sex couples to marry or create an alternate solution.

In response, the New Jersey Legislature in 2007 attempted to create a “separate but equal” approach by passing the Civil Union Act, N.J.S.A. 37:1-28 which did not allow same sex couples to enter into a “marriage”, but allowing same sex couples to enter into a “civil union”, and providing couples who entered into a “civil union” the same rights as married couples.

After the U.S. Supreme Court decision in Windsor determined that DOMA was unconstitutional in limiting the definition of “marriage” to a union between only a man and a woman with the result being that same sex couples were denied the same federal rights and benefits as a heterosexual couple, the obvious question was thus raised as to the Constitutionality of State laws allowing for “civil unions” between same sex couples but not a “marriage”.

As noted in Mr. Yudes’  subsequent blog, the process of allowing same sex couples to marry has begun. After the decision in Windsor, the Plaintiffs in the Garden State Equity v. Dow, filed an application in the Superior Court of New Jersey seeking summary judgment.   In September, 2013 the Hon. Mary C. Jacobson, J.S.C. issued a decision in which she reasoned that in New Jersey, couples who entered into civil unions are denied benefits solely because of the label placed on them by the State in violation of the Constitution’s guarantee of equal protection and in violation of Lewis v. Harris.  She stated that the plaintiffs were not eligible for the same federal benefits as same-sex couples who were able to marry in other states.  Judge Jacobson, therefore, concluded that New Jersey has to extend the right to marry to same sex couples to prevent same sex couples in New Jersey from being denied their Constitutional rights to equal protection.

The Governor of New Jersey indicated in the press that he did not agree with Judge Jacobson’s decision and does not support allowing same-sex couples in New Jersey to marry.   The State appealed Judge Jacobson’s decision in Garden State Equality v. Dow  and filed an application with the Supreme Court seeking a stay of that decision pending appeal.  The State argued that it suffers “irreparable harm” when one of the laws passed by the Legislature is deemed unconstitutional.  The State also argued that the harm was “irremedial” because if state marriage licenses were to be issued to same sex couples, that action is impossible to undo.

On October 18, 2013, in a decision drafted by Chief Justice Rabner, the New Jersey Supreme Court denied the State’s request for a stay.  The Supreme Court disagreed that the State would necessarily be irreparably harmed by enforcing an unconstitutional statute.  The Supreme Court further noted that Judge Jacobson did not find that the Civil Union Act was unconstitutional;  instead she asked the Legislature to allow same sex couples to marry.  Same sex couples are still permitted to enter into civil unions if they wish.  The Supreme Court disagreed that the alleged harm to the State from having to issue marriage licenses was “irremedial”, noting that the state of California had been able to nullify tens of thousands of marriage licenses issued to tens of thousands of same sex couples.  The Supreme Court felt that the State had not made a “forceful” showing of tangible harm from allowing same-sex couples to marry.

Additionally, the Supreme Court stated that the State had not shown a reasonable probability of success on the merits to obtain a stay of Judge Jacobson’s decision pending appeal.  The State had argued that same sex couples post-Windsor  are or should be entitled to federal benefits, but the State’s interpretation of Windsor had not been followed by some federal agencies or the United States Department of Justice.  The Court pointed out that after Windsor , federal agencies had been giving the same rights to same-sex married couples as opposite-sex married couples, but were not affording the same federal rights to same sex couples in civil unions.   Consequently, the federal government denies same-sex couples in civil unions the federal benefits that they would receive if they could be married.   Lewis, remember, requires the Legislature to give same-sex couples in committed relationships that same rights and benefits as heterosexual married couples., and the Supreme Court stated that those rights and benefits are not limited to State rights and benefits.

Finally, the Supreme Court stated that this case involves an issue of significant public importance,  and the public interest is not served by depriving a group of New Jersey residents the right to marry during the appeal process.

The Supreme Court’s decision on October 18, 2013 does not end the appeal process; Judge Jacobson’s decision is not affirmed or reversed.   The appeal will continued to proceed.  What does this mean for the Civil Union Act and the right of same-sex couples to marry?   The decision of the Supreme Court in this application for a stay is telling.   The Supreme Court concluded that “when a party presents a clear case of ongoing unequal treatment, and asks the court to vindicate constitutionally protected rights, a court may side step its obligation to rule for an indefinite period of time. Under those circumstances , courts do not have the option to defer.”

Hence, as of Monday, October 21, 2013 same-sex couples in New Jersey have the right to marry.   The decision to deny the State a stay of Judge Jacobson’s decision certainly appears to indicate that the State has an uphill battle to explain how, based on the New Jersey Supreme Court decision in Lewis and the United States Supreme Court decision in Windsor, it can continue to deny same-sex couples in New Jersey the right to marry.  Thus, even while an appeal of Garden State Equality v. Dow is proceeding through the appellate process, New Jersey remains the fourteenth state to allow same-sex couples to marry.