Friday, September 27, 2013

New Jersey Judge Orders State to Permit Same Sex Marriage

Judge Mary Jacobson

In the wake of U.S. v. Windsor the federal government began moving to afford same sex spouses the federal benefits to which heterosexual couples are entitled.  But New Jersey same-sex couples could not marry - only enter "civil unions".  In 2006 the state Supreme Court had ordered the state to afford full equality to persons in civil unions. When post-Windsor federal agencies began to deny benefits to participants in civil unions   federal government's actions showed that civil unions could not provide full equality to New Jersey same sex couples.   The plaintiffs in Garden State Equality v. Attorney General Dow moved for summary judgment before Superior Court Judge Mary Jacobson.    Jacobson granted plaintiffs' motion and ordered that New Jersey, by October 21, "permit any and all same-sex couples, who otherwise satisfy the requirements to enter into a civil marriage, to marry in New Jersey."

Update 9/29/2013:
Governor Chris Christie quickly announced that the State will appeal.  The next step will be a motion for a stay pending appeal - which the trial judge will presumably decline, but the Appellate Division is likely to grant, and the Supreme Court almost certainly.  Plaintiffs will, I expect, ask the Supreme Court to directly certify the question and decide the issue promptly.  The Court may balk, saying that the factual record it said was needed is not yet before it.  But it is the undisputed facts that have been changed by the landmark ruling in U.S. v. Windsor.  That now frames the constitutional question precisely - since the United States recognizes marriage as the the qualifying event for federal benefits, New Jersey must inevitably derive some citizens of the benefits of equality unless it permits them to marry. 

 A big question is who will be the members of the New Jersey Supreme Court when the case is reached?  There are two vacancies, a third will be presumably short when Helen Hoens term expires in October and Judge Faustino Fernandez replaces her.  In June of next year Chief Justice Stuart Rabner's term expires and Governor Christie - most expect - will refuse to re-appoint him.  If the court does not take the question now but waits for the intermediate court to review Jacobson's ruling four of the court's seven members could be new.

The court declared in Lewis v. Harris that civil unions must be equal to marriage in all respects.  That appears to be impossible without allowing same-sex marriage.  The public mood has shifted that way.  Even if a Christie-named majority allows gay marriage to proceed  the Governor may get to have it both ways: the court will have freed him from the grip of having to be relentless in his opposition to same-sex marriage. - gwc

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