The state Supreme Court sent what many are calling a definitive signal on Friday when it refused to step in and stop same-sex couples from marrying beginning today: The fight for marriage equality appears to be over.
Early Monday morning Gov. Chris Christie abandoned his suit to have the court hear the state’s case to overturn the lower court’s decision. With that, same-sex marriage became a fact of life in the Garden State.
Beth Asaro and Joanne Schailey didn’t bother to wait for the administration’s announcement. The same-sex Lambertville couple were married just a few minutes after midnight, two years after being married in New York State, and six years after becoming New Jersey’s first same-sex couple to enter a civil union.
The couple was pronounced officially married at 12:03 a.m. after a brief ceremony that was delayed for several minutes — while a DJ played “Still the One” by Shania Twain — in order that the marriage would not be formally declared before the legally sanctioned deadline.
Lambertville Mayor David DelVecchio, who performed the ceremony, said, “Our community was built on a foundation of tolerance and equal justice.” Similar scenes were likely played out in other communities with large lesbian and gay populations, such as Jersey City and Asbury Park.
The mayors of the states two largest cities — Cory Booker in Newark and Steven Fulop in Jersey City — said they planned to perform ceremonies shortly after midnight.
Booker said on Twitter on Friday that “Thanks to today’s ruling on Marriage Equality: On Monday at 12:01 AM I’ll be marrying both straight & gay couples in City Hall.”
Fulop said Saturday that the court’s decision offered an “opportunity to move forward, and I don’t think we should waste any time.”
Lambertville Registrar Cindy Ege said she had received applications for 13 marriage licenses from same-sex couples since Saturday, and encouraged wedding guests to apply for more.
Mayor DelVecchio said the ceremony heralded the beginning of a normalization of same-sex marriage in New Jersey.
But does the court’s ruling support to any degree with this sanguine interpretation?
The court’s language in the unanimous decision denying a stay of a lower-court ruling that would allow gay marriages to be performed in the Garden State beginning today was sweeping in its criticism of the Christie administration. It appears to make clear how the court is likely to rule in January after hearing the full case, observers say.
The Christie administration’s legal argument against performing gay marriages until the Court makes its final ruling — that allowing same-sex marriages to move forward, ahead of a trial, would create irreparable harm to the state — was dismissed outright, as was its contention that inequities in state law created by the U.S. Supreme Court’s overturning of the federal Defense of Marriage Act needed to be addressed by the federal government, not the state
The Christie administration, Chief Justice Stuart Rabner wrote in his 20-page ruling, failed to overcome the “reality” that “same-sex couples who cannot marry are not treated equally under the law” in New Jersey. “The harm to them is real, not abstract or speculative,” he wrote. The state, he continued, “has not shown a reasonable probability of success on the merits” and marriages, therefore, must be allowed to commence beginning October 21.
The court made three essential points in refusing the administration’s stay request: that the state’s basic argument was built on a logical fallacy, that the state’s argument that case law is settled in its favor is a misreading of constitutional law, and that it failed to show tangible harm to the state.
“Courts are not usually as blunt as this one was about the state’s appeal,” said David Redlawsk, director of the Eagleton Center for Public Interest Polling at Rutgers and a professor of political science. “It was almost like they were saying ‘go back to law school.’ I can’t imagine how the court could rule any other way come January.”
The state’s argument that it would suffer “an injury to its sovereign interests” were “one of its democratically enacted laws … declared unconstitutional” Rabner wrote, “begs the ultimate question: if a law is unconstitutional, how is the state harmed by not being able to enforce it?”
The ruling then goes on to criticize the state for “flipping” the normal standard that case law should have been settled in the state’s favor for a stay to be issued and arguing, instead, that federal law is unsettled. The state, Rabner wrote, is arguing that federal law should cover couples in civil unions, but has not addressed what actually was put in place at the federal level.
“[F]ederal agencies,” Rabner wrote, “have directed that various benefits be made available to same-sex married couples, but not to civil-union partners. That, in turn, deprives partners in a civil union of the rights and benefits they would receive as married couples.”
In addition, the court said, the state is wrong in its belief that the court would be interfering with the “democratic process” in ruling to legalize same-sex marriage.
“[W]hen a party presents a clear case of ongoing unequal treatment, and asks the court to vindicate constitutionally protected rights, a court may not sidestep its obligation to rule for an indefinite amount of time,” Rabner wrote. “Under those circumstances, courts do not have the option to defer.”
The “public interest does not favor a stay,” Rabner concluded.
The administration issued a terse response on Friday, saying it would abide by the ruling and ordered municipalities to move forward with the issuance of marriage licenses.
“The Supreme Court has made its determination,” Michael Drewniak, the governor’s press secretary, said in an email. “While the governor firmly believes that this determination should be made by all the people of the State of New Jersey, he has instructed the Department of Health to cooperate with all municipalities in effectuating the order of the Superior Court under the applicable law.”
While observers say the court has made clear its intentions, the effect that Friday’s ruling might have on the state Legislature is unclear.
Both houses backed legislation in February 2012 that would have legalized same-sex marriage in the state. Gov. Chris Christie immediately issued a conditional veto that struck down the bill but would have put the issue before the voters this November.
Democrats opposed the ballot question and have promised an override vote, but they have been waiting for the lame-duck session — after the 2013 election and before the swearing in of a new Legislature in January. It is possible that the court ruling could free some legislators to change their original votes and back an override, but observers say it is as likely that Republican legislators will not want to buck Christie and instead will allow the court to act.
The court’s decision was technically a temporary one, tied to the request from the Christie administration to stay a lower court decision issued last month. The September ruling by Superior Court Judge Mary Jacobson found that changes in federal law brought about by the U.S. Supreme Court’s overturning of the federal Defense of Marriage Act in United States v. Windsor meant that same-sex couples in New Jersey were now treated differently under the law in violation of the state constitution’s equal protection clause.
Jacobson, in her ruling, ordered that same-sex couples should be allowed to marry. She set October 21 as the date on which marriages could begin.
The Christie administration appealed and requested a stay. Jacobson denied the stay request and the Supreme Court took on the case, bypassing the appellate court. The Supreme Court will not hear the full appeal until January.
The court still could side with the Christie administration and overrule Judge Jacobson, putting a halt to same-sex marriage in the state, though that seems unlikely given the unusually critical language and the lack of dissent, observers say.
Brian Brown, president of the conservative National Organization for Marriage, criticized the court, calling Jacobson an “activist judge” and saying in a statement that the “definition of marriage is something that should be decided by the people of New Jersey themselves, not by any judge or court.”
“New Jerseyans should have the right to vote on this issue just as voters in nearly three dozen other states have done,” he said. “In addition, the decision to allow same-sex marriage to proceed even while the law is being tested in court is unfair both to the voters of the state and to same-sex couples themselves.”
He said the court could side with Christie, which would call into question any marriages performed in the interim, and “opens the door to a possible federal court ruling similar to what occurred in California in the Ninth Circuit Court of Appeal which held that once a state grants same-sex marriage rights it can never take them away.”
Fulop agrees, and says that is why Friday’s ruling is a victory.
“I don’t think the court is going anywhere in January,” Fulop said. “The request for additional hearings is just politics and the reality is marriage equality is the law of the land in New Jersey and it here to stay.”
Assemblyman Reed Gusciora (D-Mercer), one of two openly gay members of the state Legislature and the sponsor of the original same-sex marriage bill, agreed that it was unlikely that the court would strip same-sex marriage rights come January.
“The Supreme Court has granted the ability of people to get married in the interim, and the Supreme Court could change its mind,” Gusciora said. “But it is unlikely.”
He said the 7-0 vote adds to the predictive nature of the decision and that, allowing marriages to start taking place, Friday’s decision could alter the “facts on the ground” by creating a class of married couples that do not yet exist and that the court would have to consider.
“I doubt the court could take [their marriage rights] away, so it would add to the disparity argument in January,” he said.
Ultimately, Gusciora said, the administration’s efforts to prevent same-sex couples from marrying are a “Quixotic quest” and it would be best for the governor to get on the right side of history.
“The U.S. Supreme Court’s ruling on DOMA in July was a ‘game-changer,” Gusciora said, because it said that there are federal benefits tied to whether something is called a marriage or a civil union.
“The Jacobson decision was nothing but a recognition that there are benefits that can be derived from marriage and not through civil unions,” he said.
Hayley Gorenberg of Lambda Legal, one of the attorneys for same-sex couples in the case, praised Friday’s ruling but would not say whether she thought it predictive of what is to come.
“I think it is a terrific decision,” she said. “It is immensely strong, as it should be and it is what our clients deserve. It is unanimous and goes point by point and analyzes the strength of what we have put forward and what the state has put forward and the fact that the state has neither shown harm nor the likelihood that it will prevail.”
She said the court in January “will consider what is before it” and make its ruling.
“I hope that is the case,” that Friday’s ruling is an indication of how the court might rule in January, she said, “but I would never presume that I could speak for the court or say what they will do.”
While observers say the court’s language was strong, it is less clear how the Legislature will respond. Senate President Stephen Sweeney (D-Gloucester) and Assembly Speaker Sheila Oliver (D-Essex) both have said in the past that they planned to schedule override votes on the vetoed marriage-quality bill, but nothing is scheduled and neither mentioned the override in their statements Friday praising the court.
And it remains unclear whether Friday’s decision will spur fence-sitting legislators to change their mind. Marriage-equality legislation (S-1/A-1) passed the Senate 24-16 and the Assembly 42-33. The Senate needs 27 votes and the Assembly 54 votes to override the governor’s veto.
Patrick Murray, director of the Monmouth University Polling Institute, said the ruling would “enhance advocates’ position to push for this and to put Republicans on the record,” but it also could lend cover to legislators who would prefer to have someone else make the decision.
Redlawsk agrees. Republicans, he said, may be concerned about “crossing the governor” and the ruling could give them “an opportunity to not have to do it.”
There have been calls for the governor to drop the appeal. Redlawsk said he doesn’t see the governor doing that, especially because he is “clearly running for another office.” It allows him to play to the conservative Republican base nationally and to say it “was not him. It was an activist court that did it.”
For mayors like Delvecchio and Victor DeLuca, of Maplewood, the governor’s national political ambitions are not the point.
“This ruling is probably one of the best rulings anyone who is a prop of same-sex marriage could want,” said Deluca, who will start performing weddings at noon on Monday. “To see [the wedding in Lambertville] today was very heartening.”
“I’m a 57-year-old heterosexual male and, for me, I took it for granted that if I chose to I could get married,” he said.
“For Beth and Joanne, now they are going to be able to have the same dreams and aspirations that heterosexuals have had forever. Beth and Joanne and other gay and lesbian couples. There can finally be full citizenship.”