Marsha and Louise, Cindy and Maureen, and thousands of other same-sex couples are going to have to wait a little longer to learn if they will be able to marry in New Jersey, since a Mercer County Superior Court Judge in Trenton Thursday said she would reserve judgment on the matter until at least September.
New Jersey is the first state to hear testimony on the issue following the U.S. Supreme Court decision striking down the federal Defense of Marriage Act seven weeks ago.
Marriage-equality activists have gone to court saying that New Jersey must act quickly to prevent further discrimination against same-sex couples because they are being prevented from enjoying federal benefits when they are joined in civil unions, as opposed to marriage. They are asking Judge Mary Jacobson to order that same-sex marriage be made legal immediately, since the state Supreme Court ruling allowing for civil unions was based on the idea that there was no difference legally between a civil union and marriage. Now that the U.S. government bestows benefits on same-sex partners who are married, but not those in civil unions, they argue that the state law is no longer valid.
New Jersey Assistant Attorney General Kevin Jespersen argued that Jacobson does not have the authority to overturn the state’s current civil union law and that it’s too soon to do so anyway without a full trial. Garden State Equality, which filed a motion for summary judgment days after the U.S. Supreme Court decision, argued there is no need to wait and gay couples are being harmed every day.
“Civil unions are not equal to marriage,” stated Lawrence Lustberg, who is representing Garden State Equality, as he began making his case before Jacobson. “There is ongoing harm every single day for people who are denied their federal benefits because of the fact they are not permitted to be married.”
Following the court hearing, marriage-equality proponents spoke with emotion and passion. “In 2002 when Lambda took up our case . . . we knew we were in for a long haul but, my God, at this point it seems utterly ridiculous that it is not just common sense. When the state of New Jersey specifically said you are just a partner in a civil union they separated us from marriage . . . And because of that, now that DOMA has been overturned, we are separated from all of the federal rights and protections,” said Cindy Meneghin, speaking about her 39-year life with her partner Maureen Kilian.
“Maureen has gone thru cancer, meningitis, and a heart ablation with me and I just had another heart test yesterday,” continued Meneghin, who stood with Kilian by her side and their two children behind them. “Why are we expected to take the chance of waiting even one more day for the benefits that the federal government on June 26th, the 11th anniversary of our original filing of this case, said if we are married, we get those federal benefits? Why do we have to wait even one more day . . . because the state of New Jersey wants to treat me like a second-class citizen when it comes to my relationship?”
The state’s contention is that it does not treat those in civil unions as second-class citizens. Jespersen argued there is “no substantial legal difference between civil union and civil marriage in New Jersey statutes.”
New Jersey’s unique situation in terms of case law, as well as the fact that a case is currently before the courts, has made the state the next focus for marriage-equality activists.
In Lambda Legal’s first case challenging the civil union law in 2006, the state Supreme Court ruled domestic partnerships were unconstitutional because they did not give couples the same rights that those who were able to marry. However, rather than ordering the state to permit gays and lesbians to marry, the court told the Legislature to come up with remedies to the law 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.
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 to establish a record on which the court could rule. The current suit, Garden State Equality v. Dow, is two years old and had been proceeding through the legal process, when the U.S. Supreme Court decision, known as Windsor, came down on June 26.
Three days later, GSE filed its intention to seek summary judgment in its case, essentially saying it is no longer necessary to proceed because the Windsor decision makes it clear that civil unions do not provide the equality the state Supreme Court required in the Harris decision.
Lustberg noted yesterday that four separate state agencies, including the Department of Defense on Wednesday, have already stated they will abide by the Windsor ruling and provide all federal benefits to all same-sex couples who are married. He said that since the Windsor ruling specifically applied only to those who are married, and left it up to the states to decide whether to allow gay couples to marry, New Jersey civil union partners are clearly not receiving the equal treatment the state constitution requires they get.
“The point is marriage matters,” Lustberg said, citing the federal family leave act as only one of more than 1,100 federal rights and benefits that only married couples can receive, and that New Jerseyans in a civil union cannot.
Jespersen argued that it’s too soon to draw those kinds of conclusions. He said federal agencies may be announcing these policies but it is unclear how they will be carried out.
“We do not know ultimately how this will be decided by the federal government,” Jespersen said. “We do not know whether the federal government will make the decision to ignore New Jersey law.”
“I’m very concerned about whether this is the right time to bring this case,” Jacobson told Lustberg, noting that the state Supreme Court had asked for a full court record on the matter.
But Lustberg said the record request was made before the Windsor decision made it clear that New Jerseyans in civil unions are not going to be treated equally under federal law. Continuing with the case and developing a record “would be a tremendous waste of court time and resources” and of his clients’ resources.
“Today we know that federal rights are and will continue to be distributed based on whether a couple is married or not,” Lustberg said. “That is a fact today and it is an undisputed fact.”
But Jesperson argued that New Jersey meant for civil unions to provide equal benefits as marriage and so the Windsor ruling should apply to New Jersey gay couples. If the federal government does not, however, treat civil unions as equal to marriage, he told Jacobson that the New Jersey court does not have the right to tell the federal government to change its policies because “the New Jersey constitution does not have a remedy for that.”
“By creating a regime in which some people can be married [and others not], the state created the infrastructure for just these sorts of violations,” Lustberg said. “What we are seeing now is the state is saying, ‘Don’t blame us. It’s the federal government’s fault for not respecting our determination that civil union couples be treated equal to married couples’ . . . This was all caused by the state. It begins with the state. It could end with the state.”
Civil union has never been equivalent to marriage, said Marsha Shapiro and Louise Walpin following the hearing. In the midst of their grief over the death of their child several years ago, they had to take time to try to make the funeral director understand the nature of their union. And Walpin said that when she was in the hospital just last month and Shapiro showed the registrar their civil union certificate, which she carries at all times because of the confusion, the registrar still said there was no checkbox on the form for a civil union so she marked them as single.
“It would be so simple to just call it marriage,” Walpin said.
When it was suggested the plaintiffs take their case to federal court because federal benefits are being denied, Lustberg said there is a good chance they would lose.
“More than likely, the courts are going to say, ‘No, go to Congress, go back to your state and get marriage because our statutes are based on marriage,” he said.
GSE is working on the latter point. The group is in the midst of an aggressive campaign entitled New Jerseyans United for Marriage to further boost public support and to get lawmakers to vote to override Gov. Chris Christie’s veto of the marriage equality bill the Legislature passed in January 2012. Troy Stevenson, GSE’s executive director, said, “I believe we will override the veto by the end of this legislative session.”
John Tomicki, head of the New Jersey Coalition to Preserve and Protect Marriage and the only clear same-sex marriage opponent at the courthouse yesterday, said he doubted that is true, pointing to the vote on the bill. In the Senate, 24 members voted for it and 27 votes are needed for an override. In the Assembly, the bill only got 42 votes and 54 are necessary to make it law. Democratic leaders have said Christie has told Republicans not to override his veto.
Jacobson asked a question that seemed to cover a complaint Christie has been making throughout his tenure about the courts and judicial activism when she said there are many who say that issues such as this one “ought to be decided by the political process, the democratic process, rather than by judges.”
Lustberg said that sometimes courts have to act to right wrongs and this is one of those cases.
“There has been legislation; there have been vetoes; this is still within the democratic process and it may be for years to come,” he said. “Today we know that because of Windsor, federal rights and benefits will be distributed unequally . . . Waiting means waiting. All the while, our clients are denied the important benefits we have discussed today.”
Lustberg noted that several of the plaintiffs are around retirement age and if a civil-union partner dies, under the Windsor decision, “the other member will not ever be eligible for death benefits . . . The right will be lost forever.”
Citing “very difficult issues,” Jacobson told the parties not to expect a decision before September. The attorneys will have until August 28 to submit any additional briefs before she makes a decision.
What happens next will depend on her decision. Lustberg said that the judge rules in favor of GSE, the state can appeal. But if GSE does not prevail, there is no automatic right to appeal her determination, and the plaintiffs may just decide to continue with the regular case they were making.