Same-sex marriage advocates, carrying through on their vow to act quickly in New Jersey in light of last week’s U.S. Supreme Court rulings, will file motions Wednesday in state court seeking to have the state’s civil-union law declared unconstitutional.
Superior Court Judge Mary C. Jacobson has issued an expedited schedule for hearing the request by Garden State Equality and six couples for summary judgment in their lawsuit, which seeks to force New Jersey to allow gay and lesbian couples to marry and to recognize marriages from other states.
The state will have until August 2 to respond. GSE must reply by August 9, and Jacobson will then hold a hearing on the motion August 15 in Trenton.
“We asked for and received an expedited filing schedule that has us filing all our papers on Wednesday,” said Hayley Gorenberg, deputy legal director at Lambda Legal, who is handling GSE’s case. “That is very speedy.”
Gov. Chris Christie reiterated his opposition to same-sex marriage following the Supreme Court’s ruling, which invalidated a portion of the federal Defense of Marriage Act, and Democrats in the state Legislature have balked at putting the question on the ballot, so in the end it may be the state’s courts that rewrite the rules on this issue, as they have on several other issues over the decades.
Lawyers for the couples and GSE said New Jersey’s courts are in a unique position to act, and to do so quickly, because of the lengthy legal history and the prior state Supreme Court ruling.
Lamba Legal first filed a suit in state court seeking marriage equality on June 26, 2002, 11 years before the U.S. Supreme Court ruling in the case known as Windsor v. United States. At the time, the state allowed domestic partnerships for gay and lesbian couples that did not give them the same rights that those who were able to marry. That case, Lewis v. Harris, eventually made it to the state Supreme Court, which ruled in October 2006 that denying same-sex couples the same rights and benefits as married couples was unconstitutional.
Rather than ordering the state to permit gays and lesbians to marry, the court told the Legislature to take action within 180 days. Lawmakers responded with the current civil-union law, which states that same-sex couples should receive the same rights and benefits as heterosexual married couples.
But in December 2008, the New Jersey Civil Union Review Commission issued a report stating that civil unions do not provide equality for gay and lesbian couples. A split state Supreme Court balked at a request to overturn the civil-union law, telling the plaintiffs to file a new suit in Superior Court.
The current suit, Garden State Equality v. Dow, was filed in June 2011 and has been proceeding through the court process, with depositions to have been completed sometime in the next several months. In it, GSE contends the civil-union law violates both the state and federal constitutions, and lawyers were working on proving that contention.
“The way they (couples in a civil union) are living their lives, be it in the emergency room or at their kids’ school, is not providing them with equal rights,” said Gorenberg. “We were involved in this painstaking discovery process, taking plaintiffs’ depositions … preparing for trial.”
Last week’s Supreme Court ruling makes it unnecessary to continue with that case unnecessary, GSE’s lawyers plan to argue in their motion.
“Now it’s a very straightforward argument: Couples do not have the full spectrum of rights,” Gorenberg said.
“Our case is, to our mind, over,” agreed Lawrence Lustberg, the Newark attorney working pro bono on the case with Lambda Legal. “The implications of Windsor are that we have to win.”
In the Windsor case, the U.S. Supreme Court found unconstitutional DOMA’s provision prohibiting married same-sex couples from receiving all the federal rights that married heterosexuals have. These include the receipt of Social Security benefits, taxation exemptions and penalties, and inheritance rights.
Because the New Jersey Supreme Court ruled that gay and lesbian couples in the state must have the same rights as married couples — and they now clearly do not, because the Windsor ruling only gives the same federal rights to married same-sex couples — GSE’s lawyers said it is clear that the state’s civil-union law is unconstitutional.
“Over 1,000 federal rights and obligations turn on whether a couple is married or has a spouse,” Lustberg said. “Same-sex couples cannot marry in New Jersey…that is the law … Civil union partners are not spouses in New Jersey. These benefits are not going to be available to New Jersey couples and that violates Lewis.”
“Lewis provides the promise of equality,” Lustberg added. “We now know that calling marriage something else breaks that promise.”
GSE’s suit filed two years ago had the hindsight to address this very issue: “Relegating same-sex couples to civil unions hinders their ability to seek marriage-based benefits when Section 3 of the Defense of Marriage Act is no longer operative … Plaintiff couples, couples who are members of GSE, and other same-sex couples are hindered from engaging in marriage-based challenges to DOMA and its discriminatory effects, and will not gain the rights and benefits that will be available after the repeal or striking down of DOMA.”
Having that earlier state Supreme Court order that all couples must receive equal treatment regardless of sexual orientation makes the case for quickly legalizing same-sex marriage stronger here than it might be in other states. And two years of legal groundwork in the GSE case is what has given lawyers the ability to act here so soon after the Windsor ruling.
“We had our case keyed up,” said Gorenberg. “I would not want anyone looking at what we do and thinking they can bring a new case in a snap. There are a lot of complexities to setting it up.”
Gay rights advocates in other states may have to proceed more slowly, particularly in those states whose constitutions specifically ban same-sex marriage, she said. Currently, 13 states have passed laws allowing gay and lesbian couples to marry.
While courts do not issue rules for summary judgment lightly, Lustberg said he expects the court to rule quickly in this case because “as we speak, people are being harmed.” For instance, when a civil union partner dies, the remaining partner cannot get Social Security survivor benefits and has to pay federal inheritance taxes because he or she is not a “spouse.”
“If the state of New Jersey truly represents all of New Jersey and all New Jerseyans, then it ought not to be denying a large swath of federal benefits to people who are paying taxes,” Gorenberg.
Meanwhile, legislators plan to discuss the issue today in Trenton. Sen. Barbara Buono, D-Middlesex and Christie’s challenger in November, is among those urging the Legislature to try to override the governor’s conditional veto of the same-sex marriage bill lawmakers passed last year. Others want the question put to a vote in November, as Christie has suggested.
The most recent poll by the Eagleton Institute of Politics found about 6 of every 10 New Jerseyans who vote want to allow same-sex marriage in the state.