A New Jersey Superior Court judge on Friday ordered the state to legalize gay marriage, saying that only recognizing civil unions directly harms same-sex couples by depriving them of access to federal marriage benefits.
Judge Mary C. Jacobson was faced with an action brought by rights group Garden State Equality that now the federal government recognizes same-sex marriages but not civil unions, New Jersey’s confining same-sex couples to civil unions is unconstitutional.
To examine this, Jacobson had to consider a great deal of case law, but in particular two court cases.
First was Lewis, the New Jersey Supreme Court case that saw the justices unanimously rule that same-sex couples must be given all the rights and responsibilities of marriage, but in a 4-3 split decided against recognizing a fundamental right to marriage. As such, the court declined to legalize gay marriage itself and left it to the state legislature to decide on the exact framework through which it would recognize same-sex couples’ rights. The legislature chose to create a new framework: civil unions.
The other case at issue here is the Windsor v. United States case that saw the Supreme Court of the United States strike down the Defense of Marriage Act’s Section 3. This aspect of federal law prevented the federal government from recognizing same-sex marriage.
As Judge Jacobson notes in the judgment’s introduction, with Section 3 gone thanks to the Windsor judgment, the federal government has moved to extend more than 1,000 federal rights and benefits.
In the light of the Windsor decision, New Jersey civil rights group Garden State Equality and six same-sex couples and their children asked the court for a summary judgement saying that because New Jersey’s civil unions law deprives same-sex couples from accessing the definition of marriage, it prohibits them from gaining federal benefits. As such, they argue, this is contrary to the spirit of Lewis, which explicitly saw the State Supreme Court decide that same-sex couples must be given all the rights of marriage.
New Jersey’s attorney general and the state department of health maintains this is in fact a federal issue and would therefore require a federal remedy in the form of the federal government recognizing civil unions.
As such, the state Superior court was here faced with the express question that previously the state Supreme Court had declined to rule on: should same-sex couples have access to the definition of marriage?
The court expresses extreme skepticism with regards to the state’s arguments that this is for the federal government to remedy, saying:
In essence, the State attempts to foist all constitutional responsibility for the ineligibility of civil union couples for some federal benefits on the federal government, arguing that it is the federal government that is improperly not deferring to state law definitions and is therefore violating plaintiff’s constitutional rights. [...] The New Jersey Attorney General’s view, however, is not binding on the federal government which has already acted through several agencies to exclude civil union partners from eligibility for federal marital benefits. [...] Indeed, these policies are consistent with the explicit language of Windsor limiting its reach to same-sex couples legally married in states authorizing such unions[...].
While the Court recognizes that it would be possible to follow the State’s logic and for Plaintiffs to attempt to compel the federal government to recognize civil unions, the Court has no power over the federal government and so Plaintiffs would have to file multiple challenges and wait for an act of Congress.
Instead, what is within the Court’s power is to determine whether the post-Windsor landscape means the State — over which the Court does have authority — is violating the New Jersey Constitution and the state’s Civil Rights Act:
While the current New Jersey statutory structure challenged by plaintiffs had been in place for years before Windsor was decided, the court cannot ignore that the State’s current system of classification assigns to same-sex couples a label distinct from marriage — a label that now directly affects the availability of federal marriage benefits to those couples. Following the Windsor decision of the United States Supreme Court and the subsequent implementation of that decision by several federal agencies, same-sex couples are only afforded the same rights and benefits enjoyed by opposite sex married couples if they are married. Since New Jersey currently denies marriage to same-sex couples, same-sex civil union partners in New Jersey are ineligible for many federal marital benefits. The parallel legal structures created by the New Jersey Legislature therefore no longer provide same-sex couples with equal access to the rights and benefits enjoyed by married heterosexual couples, violating the mandate of Lewis and the New Jersey Constitution’s equal protection guarantee.
The Court, seeing the violation of the state law, stopped short of ruling on the federal Constitutional question also brought by Plaintiffs of whether the denial of marriage violates federal guarantees of equal protection. This wasn’t needed, however, for the Court to order the State to allow same-sex couples the right to marry.
In order to give the State a chance at an appeal, the Court directs the order to take effect on October 21, 2013. It needn’t have, as Governor Chris Christie’s administration announced it would appeal within hours of the ruling being issued.
Nevertheless, today’s judgment is also an important one when viewed in a broader context.
This is the first court decision to directly answer whether Windsor has changed the legal landscape for states with bans on same-sex marriage.
States like New Mexico and Illinois are in the middle of their various battles to overturn statutory bans on marriage equality. They may watch the New Jersey case closely, therefore, because if on appeal it is upheld, there will be a clear legal determination to show that access to marriage for same-sex couples can no longer be denied now that DOMA Section 3 is no more.
As such, this ruling further emphasizes just how much of a game changer the Windsor case was and how much is owed to octogenarian Edith Windsor, the case’s namesake.
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