Likely Christie Appeal Casts Pall on Superior Court Ruling on Gay Marriage

Hank Kalet | September 30, 2013 | Social
Plaintiff's legal team doubts governor has grounds for stay, will continue battle in State Supreme Court if necessary

Hayley Gorenberg (right), a lead lawyer for the plaintiffs, speaking at Montclair rally, with Garden State Equality executive director Troy Stevenson.
Gay rights activists are celebrating a New Jersey judge’s decision Friday that same-sex couples can legally marry in the Garden State. But they still have questions about when they can actually tie the knot. The superior court judge set October 21 as the day they can apply for licenses, but Gov. Chris Christie has said he would appeal the ruling, and it’s not clear whether he will seek a stay.

Hayley Gorenberg, deputy legal director at Lambda Legal, one of the attorneys for the plaintiffs, said the immediate impact would be to allow New Jersey’s same-sex couples can marry 72 hours after they apply for licenses. They would then have access to federal benefits.

She also said that public officials — mayors and others — would not be able to discriminate in performing marriages; they could opt out only by not performing any weddings. at all. Religious institutions would be exempt.

Carrie Faroane, of Plainfield, said there are pragmatic concerns surrounding the decision. She said that despite being in a civil union she and her partner, Chao-I Chen, have not been able to file joint tax returns or share health coverage, and there remains the possibility that, were one of them to get sick, the other’s rights could be superseded by blood relatives. She called her civil union a “Jim Crow marriage” and “marriage-lite.”

“If something happened to me, other members of the family could step in and say ‘We are her blood,’” Faroane said. “But this is the person I want to make decisions for me, to inherit what I have, who I want to spend my life with.”

The decision by Mercer County Judge Mary Jacobson found that in the wake of a U.S. Supreme Court ruling in June overturning a portion of the federal Defense of Marriage Act, the state’s civil-unions law violated its own constitution’s equal-protection clause.

If the decision stands, New Jersey would be the 14th state to legally recognize the marriage of same-sex couples. The District of Columbia and several American Indian tribes also recognize gay marriage.

A number of Democratic legislators including Assembly Speaker Sheila Oliver and Senate President Steve Sweeney, lauded the decision. Sweeney and senators Loretta Weinberg, Raymond Lesniak, Nia Gill will be holding a press conference on Monday at noon to address Friday’s decision and the potential override of the governor’s veto.

The governor, in a statement on Friday, did not specifically say that the administration would appeal, but he said he planned to let the State Supreme Court have the final say.

“Gov. Christie has always maintained that he would abide by the will of the voters on the issue of marriage equality and called for it to be on the ballot this Election Day,” Michael Drewniak, the governor’s press secretary, said in an email referring to the Christie’s conditional veto of legislation legalizing same-sex marriage. “Since the Legislature refused to allow the people to decide expeditiously, we will let the Supreme Court make this constitutional determination.”

The governor’s office did not say whether it would seek a stay of the decision pending an appeal, but attorneys for the plaintiffs — six gay and lesbian couples and the advocacy group Garden State Equality — said they believe a stay is unwarranted and that they expect the appellate and Supreme courts to uphold the superior court ruling.

Judge Jacobson’s 53-page summary judgment ruling relied on arguments made in Lewis v. Harris, the 2006 state Supreme Court decision that ordered the state to grant gay and lesbian couples the same legal protections and benefits as heterosexual couples.

That decision stopped short of legalizing same-sex marriage and kicked the discussion to the state Legislature. In 2007, the Legislature passed a statute creating civil unions, which lawmakers said would be the equivalent of marriage, but reserved the official designation for heterosexual couples. A 2008 report from a state commission created as part of the civil-unions law found that same-sex couples were still being denied some rights and recommended that the Legislature revisit the law.

In the meantime, the Legislature passed S1 in February 2012, which would have legalized same-sex marriage in the state. The bill passed the Senate 24-16 with two Republicans voting yes and one Democrat voting no. It passed the Assembly 42-33, with three Democrats voting no. The governor conditionally vetoed the bill, rewriting the legislation to put a referendum on the ballot. Democratic leadership from both houses said they would not accept the changes and planned to hold an override vote. The Legislature has until January to vote on the override, which will require 27 yes votes in the Senate and 54 yes votes in the Assembly.


Cindy Meneghin (left) and her partner, Maureen Kilian, speaking at Friday rally. They are among the original plaintiffs in the marriage equality case.
The Garden State Equality suit was filed in 2010 and sought an immediate Supreme Court ruling. The court sent the suit back to the lower courts to “develop a record”; after the DOMA decision in June, however, the plaintiffs sought summary judgment, arguing that New Jersey same-sex couples in civil unions would be treated differently under federal law than married couples.

Jacobson agreed with the Garden State Equality plaintiffs. She said in her decision that the Supreme Court’s ruling in United States v. Windsor, which invalidated section 3 of the Defense of Marriage Act, meant that New Jersey same-sex couples would not have access to “many federal benefits.”

“[T]his court holds that New Jersey’s denial of marriage to same-sex couples now violates” the state constitution’s equal-protection clause, she wrote. “The equality demanded by Lewis v. Harris now requires that same-sex couples in New Jersey be allowed to marry.”

Gorenberg said Judge Jacobson recognized that “with no federal barrier, the State of New Jersey is all that stands between our plaintiffs and the full recognition of their rights.” She said there are 1,138 citations of marriage in federal statutes covering everything from tax and immigration law to Social Security and spousal recognition by the military. Federal law does not recognize civil unions and it was unlikely that it would anytime in the near future, she said. Only marriage, which is governed by state laws, is recognized, which meant that New Jersey needed to allow same-sex marriages.

The judge, Gorenberg said, found that “state action is the root, the structure that deprives people of their benefits.”

Though a challenge is expected, Gorenberg is confident that the Supreme Court will uphold Jacobson’s decision. Plaintiffs also plan to challenge any request for a stay of the decision, because “the harm to people is too extreme.”

“There are over 16,000 same-sex couples in New Jersey, many raising children,” she said. “All that happens by appealing this case is that we will be jeopardizing their rights to federal benefits.”

Larry Lustberg, of the Newark law firm Gibbons P.C., which also represented the plaintiffs, said Friday that, were a stay to be granted, they would move quickly to respond.
“If there is a stay and my clients cannot get married, I am going to go directly to the Supreme Court and skip over the appellate decision,” he said.

Same-sex couples were both joyous and cautious in the wake of the decision. Most said they planned to file for licenses on October 21.

Louise Walpin and Marsha Shapiro, of South Brunswick, have been together for 24 years. They signed on as plaintiffs in the Garden State Equality suit because they said they felt unprotected by the state’s civil unions law, which they said confers second-class citizenship on gay and lesbian couples.

“This is the first day that we are full citizens,” Shapiro said. “This was the only thing standing in the way.”


Walpin said the word “marriage” matters. The federal government, under the Windsor decision, “will grant rights to people who are legally married, thus anyone in New Jersey who cannot get legally married is being legally denied some of these thousand federal benefits, making it clear that civil unions are not giving us the same protections.”

“We are just thrilled,” she added. “What we will probably do is get married the day we are allowed and then have a banquet and reception later. We are just thrilled.”

Sarah and Suyin Lael, of Dayton, were plaintiffs in Lewis v. Harris. They called the decision an important one, but also said it was too long in coming.

“I was really excited,” Suyin Lael said. “I was cautiously excited, given way things have been going. I have expected pushback, but this is progress. When we first got involved in this process, our oldest daughter was maybe 2 or 3. She was really young.

“I am optimistic and I hope that the change comes quickly and that there continues to be momentum in a positive direct. All families need rights and protection.”

Sarah Lael said the last seven years — since Lewis v. Harris was decided — showed that anything short of marriage leaves same-sex couples at a disadvantage. Sarah Lael carries the health insurance for the entire family through her employer and, because the federal government did not recognize their union — they were married in Massachusetts and have a civil union in New Jersey — they had to pay taxes on the employer’s contribution as though it were income. Even with the DOMA ruling, she said, it is unclear how their Massachusetts marriage will be treated and whether they will need to file to be married in New Jersey.

“Those things make a big difference,” Sarah Lael said. “Having this as extra income, the health coverage added as income, has had a tremendous impact [financially].”

Maureen Killian and Cindy Meneghin were plaintiffs in both the Lewis and the Garden State Equality cases and have been together for 39 years. They say there are both practical and personal issues that they have faced over the years because they have not been able to marry legally in New Jersey.

“We’re high school sweethearts,” Meneghin said. “We’ve wanted to get married since we were very young and now we’re pretty old. It is a little scary to think we have had to wait. We already have lived through cancer and a heart ablation. I walked Maureen through double knee replacement. We are thinking of our children graduating college. I feel as if we have been living a fortunate life against the gamble of not having the protection that comes with the marriage license.”

She said that they have done their best over the past 39 years to protect themselves, “spending thousands and thousand of dollars,” but nothing offers the same level of protection as a “$28 marriage license.”

“Without the license, every day that goes by, it gets more frightening,” she said.

Christie has only spoken once publicly about the ruling, saying during a national TV interview on Sunday that he believes the decision should be decided by referendum.

“What I would tell you is that I understand that good people of good will have a difference of opinion on this,” he told CBS Sunday Morning. “And so my view is, put it on the ballot. Let the people decide.”


Steve Lonegan, the former mayor of Bogota who is running for U.S. Senate as a Republican, criticized the ruling on Saturday.

“The issue here is not gay marriage,” he said in a statement released by his campaign. “The issue is an activist judge who is legislating from the bench, using her judicial power to advance her own agenda.”

He said the decision “must be made by the state legislature and the people of New Jersey, not an activist judge.”

Lonegan’s campaign said he believes marriage should be defined as strictly being between a man and a woman, but that government “should get out of the way” and allow civil unions to work.

Lonegan’s opponent, Newark Mayor Cory Booker has been a long-time supporter of marriage equality as has Democratic gubernatorial candidate Senator Barbara Buono (D-Middlesex). Buono issued a statement Friday.

“Today’s decision reaffirms that all New Jerseyans, no matter who they love, deserve the right to marry,” Buono said. “It is a tremendous victory for everyone who believes in equality.”

Republican legislators were silent on the issue: They issued no no press releases and did not return calls or emails seeking comment.

Meanwhile, same-sex couples were critical of Christie, Lonegan and others who they say use the issue for political gain.

“I am pissed that it has taken this long,” she said. “We have been together for 24 years. How many times do we have to prove that we want to get married?”

Rights, she said, should not be put on the ballot, that it is up to government and the courts to protect the rights of minorities.

Meneghin agreed.

“First and foremost, no one’s civil rights should have to be put to a popular, vote,” she said. Christie’s suggestion, she said, was just another effort to change the rules – something she has seen often in her 40 years with Killian.

“It is a constant shell game,” she said. “Our lives shouldn’t be a political game. We are tired of that. Nobody’s civil rights should be a political game. Would he accept that his relationship be second class be called a civil union?”

She also criticized Lonegan.

“This isn’t judicial activism,” she said. “This is what people say when they don’t get the decision they want.”

John Mooney contributed to this story.