Lambda Legal just tweeted moments ago:
— Lambda Legal (@LambdaLegal) October 18, 2013
Update: In 2006, the New Jersey Supreme Court unanimously ruled that the state must provide legal recognition for same-sex couples. The legislature decided on civil unions rather than full marriage, which was arguably equivalent at the time since the federal government would recognize neither thanks to Section 3 of the Defense of Marriage Act. But now it looks like that with the U.S. Supreme Court striking down DOMA3, the New Jersey high court now sees civil unions as inferior.
Updates: From the New Jersey Supreme Court decision refusing the stay of a lower court’s order that New Jersey begin providing marriage licenses to same-sex couples (PDF: 1MB/20 pages):
At the heart of this motion are certain core facts and principles. Lewis guaranteed same-sex couples equal rights under the State Constitution. After Windsor, a number of federal agencies extended marital benefits to same-sex couples who are lawfully married, but not to partners in civil unions. As a result, civil-union partners in New Jersey today do not receive the same benefits as married same-sex couples when it comes to family and medical leave, Medicare, tax and immigration matters, military and veterans’ affairs, and other areas. The State Constitution’s guarantee of equal protection is therefore not being met.
To evaluate an application for a stay, this Court in essence considers the soundness of the trial court’s ruling and the effect of a stay on the parties and the public. See Crowe v. De Gioia, 90 N.J. 126 (1982). Largely for the reasons stated in Judge Jacobson’s opinion dated October 10, 2013, we deny the State’s motion for a stay. The State has advanced a number of arguments, but none of them overcome this reality: same-sex couples who cannot marry are not treated equally under the law today. The harm to them is real, not abstract or speculative.
Because, among other reasons, the State has not shown a reasonable probability of success on the merits, the trial court’s order — directing State officials to permit same-sex couples, who are otherwise eligible, to enter into civil marriage starting on October 21, 2013 — remains in effect.
The Supreme Court has scheduled oral arguments for the case in January, but based on Court’s 2006 ruling and the briefs submitted so far, it appears that the Court is unconvinced that the state’s case against marriage equality has a likelihood of prevailing, which is necessary in order to grant a stay:
The State presents three arguments to show that its appeal has a reasonable probability of success. First, the State claims that plaintiffs “will not be able to overcome the highest presumption of constitutional validity that attaches to statutory enactments.” Once again, Judge Jacobson did not strike down a statute. The Civil Union Act, while it may not see much use in the coming months, remains available for people who choose to use it. Even more important, though, the statute was presumptively valid “so long as” it provided full and equal rights and benefits to same-sex couples. Lewis, supra, 188 N.J. at 423. Based on recent events, the Civil Union Act no longer achieves that purpose.
Second, the State argues that plaintiffs’ “claims fail on federalism grounds.” Underlying part of this argument is the State’s interpretation of Windsor, which, as noted above, is at odds with the practice of the federal government. Although the State claims that the federal government must “defer to the states in matters concerning domestic relations,” federal agency rulings are following New Jersey’s rule about who may marry.
Third, the State claims that plaintiffs’ equal protection claim must fail because “the State’s action is not legally cognizable.” The State argues that it has followed Lewis and provided “same-sex couples with all State marriage benefits,” and that it cannot be responsible for “federal bureaucrats that … refused to extend federal benefits.”
Lewis is not limited in that way. The decision recognized that it could not alter federal law, Lewis, supra, 188 N.J. at 459 n.25, yet at the same time directed the State to provide same-sex couples “the full rights and benefits enjoyed by heterosexual married couples,” id. at 463 (emphasis added) Lewis left it to the Legislature to revise State law in a way that satisfied the Constitution’s guarantee of equal protection. Id. at 457-62. And the State acted in response. It enacted the Civil Union Act and created a structure that allows same-sex couples to enter into a civil union but not to marry. See N.J.S.A. 37:1-28 to -36. That structure today provides the framework for decisions by federal authorities. The State’s statutory scheme effectively denies committed same-sex partners in New Jersey the ability to receive federal benefits now afforded to married partners. The trial court therefore correctly found cognizable action by the State.
We conclude that the State has not shown a reasonable probability or likelihood of success on the merits.
In refusing the stay, the Court also had to weigh the balance of hardships on both parties in granting or denying the stay. The Court then listed several benefits that same-sex couples cannot access because they cannot marry: health benefits, claims under the Family and Medical Leave Act, Medicare, immigration, survivor benefits:
Lewis guarantees equal treatment under the law to same-sex couples. That constitutional guarantee is not being met. And the ongoing injury that plaintiffs face today cannot be repaired with an award of money damages at a later time. See Crowe, supra, 90 N.J. at 132-33 (“Harm is generally considered irreparable in equity if it cannot be redressed adequately by monetary damages.”); see also Laforest v. Former Clean Air Holding Co., 376 F.3d 48, 55 (2d Cir. 2003). Plaintiffs highlight a stark example to demonstrate the point: if a civil union partner passes away while a stay is in place, his or her surviving partner and any children will forever be denied federal marital protections.
Noting that there is a potential override of Gov. Chris Christie’s veto of a marriage equality bill, the state had argued that the Court should wait and allow the democratic process “a chance to play out” rather than act now. The Court stomped on that argument:
The State argues that we should give the democratic process “a chance to play out” rather than act now. When courts face questions that have far-reaching social implications, see Lewis, supra, 188 N.J. at 461, there is a benefit to letting the political process and public discussion proceed first. Courts should also “avoid reaching constitutional questions unless required to do so.” Comm. to Recall Menendez, supra, 204 N.J. at 95-96 (citing Harris v. McRae, 448 U.S. 297, 306-07, 100 S. Ct. 2671, 2683, 65 L. Ed. 2d 784, 798 (1980); Randolph Town Ctr. v. Cnty. of Morris, 186 N.J. 78, 80 (2006)). But when a party presents a clear case of ongoing unequal treatment, and asks the court to vindicate constitutionally protected rights, a court may not sidestep its obligation to rule for an indefinite amount of time. Under those circumstances, courts do not have the option to defer.