Same-sex marriages could begin in New Jersey as early as Monday, as the state Supreme Court is poised to rule on a lower court’s assertion that further delay would violate the equal-protection rights of gay couples.
Lawyers for Garden State Equality and six gay couples and their children filed papers Tuesday asserting that the state’s highest court should not suspend a Superior Court judge’s ruling that issuance of marriage licenses to same sex couples must begin October 21.
GSE argued that the state has not proven that “irreparable harm” would occur without a stay of Judge Mary Jacobson’s decision last month that New Jersey’s civil union law violates the equal protection clause of the state constitution and had not shown that it is likely to l ultimately win its case.
New Jersey’s acting attorney general argued the exact opposite in papers filed last Friday, the same day that the Supreme Court agreed to bypass the Appellate Division and decide both the state’s appeal of Jacobson’s decision and its motion seeking to stay her order that marriage licenses be issued starting Monday while it considers the matter.
A week ago, Jacobson rejected the state’s request for a stay, paving the way for same-sex marriages to begin next week unless the Supreme Court stops them.
The court has ordered that all briefs be submitted to it by Dec. 3 and set oral arguments in the case for January 6-7.
Once same-sex marriages begin, it will be difficult to go back, the state argued as one reason for the stay.
“The harm would be irremediable,” wrote Deputy Attorney General Jean Reilly for the state.
Citing the experience of California, Reilly argued, “Once the State grants marriage licenses to even a handful of same-sex couples, it is virtually impossible, both in practical and legal terms, to undo that action later.”
California issued same-sex marriage licenses for about five months following a decision by its Supreme Court that barring gay marriage was unconstitutional.
With the passage of Proposition 8, a constitutional amendment banning same-sex unions, the issuance of licenses stopped in California until about four months ago, when the U.S. Supreme Court agreed with a U.S. District Court ruling that Proposition 8 violated the U.S. Constitution’s equal-protection clause.
But in their brief for GSE, Lawrence Lustberg and Haley Gorenberg noted that the Jacobson’s decision stated that California’s history is proof of the opposite, since the state did issue same-sex marriages for a time and did stop for several years as legal arguments progressed “without dire consequences to the state.”
They argue that such a concern is not valid, anyway, because the state has little chance of ultimately winning its case before the Supreme Court.
“Indeed, the State does not and cannot deny … that the Supreme Court of New Jersey guaranteed same-sex couples equal rights; that after Windsor, they do not receive equal rights because the State does not permit them to marry; and that therefore, the State has violated the New Jersey Constitution’s equal protection guarantee,” GSE’s brief states.
In its Windsor decision, issued the same day as the California same-sex marriage case, the U.S. Supreme Court found unconstitutional the federal Defense of Marriage Act’s provision prohibiting married same-sex couples from receiving all the federal rights that married heterosexuals have.
The NJ Supreme Court ruled in 2006 in the Lewis v. Harris case that gay and lesbian couples in the state must have the same rights as married couples.
But the court left it up to the state Legislature to determine whether to do that by giving them the right to marry or creating some other structure, which the Legislature did in enacting the civil-union law. In her ruling, Jacobson agreed with GSE’s argument that since Windsor gives federal rights and benefits only to married couples, not to same-sex couples in civil unions, gays and lesbians must now also be permitted to marry.
“The State's primary argument that it is not responsible for Plaintiffs' deprivation of federal benefits -- even when that deprivation is based upon the State 's classification -- was fully explored by the trial court and twice rejected,” GSE’s brief states.
It cited a number of benefits currently denied couples in civil unions, including spousal health insurance through a federal employee, skilled nursing care spousal coverage through Medicare, federal survivorship benefits, the ability to take time off under the Family and Medical Leave Act, the ability to sponsor a non-citizen partner to live with in the United States, and the ability to file a joint federal tax return for the current year.
There are only three reasons why the court should grant a stay and the state has met none of those, GSE contends.
But the state argued that, historically, state courts have granted stays of decisions, rather than allowing a single Superior Court judge’s decision to stand on significant issues, especially ones that determine constitutional issues.
According to the state, “It is in the public interest that such a profound change, if it is to occur, take place not because a single judge -- no matter how diligent, thoughtful, and thorough -- ordered it, but rather because the Supreme Court, the ultimate arbiter, has deemed it necessary.”
GSE says the plaintiffs in the case are being harmed every day that the state does not allow same-sex couples to marry and the state has not proven it would suffer irreparable harm without the stay.
The state argued, though, that “the State suffers an injury to its sovereign interests whenever one of its democratically enacted laws is declared unconstitutional.”