NJ Supreme Court Urged to Embrace Marriage Equality Now //New Jersey Law Journal Editorial Board

copyright ALM Media (2013)
Marriage Equality Now:
by the New Jersey Law Journal Editorial Baord

We applaud Judge Mary Jacobson's decision, in Garden State Equality v. Dow, that same-sex couples must be allowed to marry in order to obtain equal protection of the law under the New Jersey Constitution. The decision is thorough, well-written and correct. Seven years ago, in Lewis v. Harris, the state Supreme Court held that the state constitution did not compel recognition of same-sex marriage. It made clear, however, that the rights of those in civil unions must be equal to those who are married and called on the Legislature to take appropriate action on this emotionally charged issue.
In response, the Legislature established the Civil Union Review Commission, which issued a report that the economic and psychological disadvantages of civil unions were substantial and that marriage equality was needed. The Legislature passed such a bill but the governor vetoed it, suggesting the matter should be submitted directly to the voters. An amendment to the state constitution was proposed, defining marriage as the legally recognized union of two persons of any gender, but the legislative majority leaders refused to submit it.
In the absence of legislative action, the litigants returned to court on a motion in aid of litigant's rights. An equally divided Supreme Court denied the motion without argument, directing the plaintiffs to file a new action and to develop a factual record on which it could be determined whether equality without marriage had been achieved.
The terrain changed in June after the U.S. Supreme Court struck down a provision of the federal Defense of Marriage Act that gives a tax benefit on the basis of being in a heterosexual, not a same-sex marriage. When the federal executive branch refused to extend to civil union partners federal marital benefits and the right to sponsor a same-sex spouse for immigration, the inability of civil unions to deliver equality became plain.
The Garden State Equality plaintiffs moved for summary judgment and Jacobson granted it, finding that the ground was shifting quickly. Both the Internal Revenue Service and the Centers for Medicare Services extended marital benefits to same-sex spouses but not to persons in civil unions. Although measures have been introduced or promised in Congress to treat civil unions and marriages equally for federal benefit purposes, no change has been enacted. Because current harm could be shown, Jacobson found the issue ripe for adjudication. She accepted the plaintiffs' framework, that the state had created "a structure in which opposite-sex relationships and same-sex relationships are given distinct labels, labels that now matter in the context of federal benefits." Those differences disadvantage New Jersey couples, an effect which, Jacobson held, violates art. 1, par. 1 of our 1947 constitution, which promises equal protection of the law.
The judgment in Garden State Equality takes effect Oct. 21. The governor's office has announced there will be an appeal and has applied for a stay. Certainly, no stay should run beyond Dec. 31, when federal taxpayer filing status is fixed, since that would deprive same-sex couples of the tax benefits of marriage for another year. The Supreme Court should expedite this case and decide it, if necessary without an immediate opinion, to avoid another year of unconstitutional inequity.

Board members Ronald Chen, Virginia Long, Lawrence Lustberg and Edwin Stern recused from this editorial.

EDITORIAL BOARD

New Jersey Law Journal editorials are the product of an independent Editorial Board. The views expressed are not necessarily those of the Law Journal's management.

ROSEMARY ALITO, Chairman
BARRY H. EVENCHICK, Vice Chairman
JAMES M. HIRSCHHORN, Vice Chairman
ROBERT E. BARTKUS • MELVYN H. BERGSTEIN
ALBERT G. BESSER • THOMAS J. BITAR
JOSEPH L. BUCKLEY • BRENDAN T. BYRNE
BERNARD CHAZEN • RONALD K. CHEN
GEORGE W. CONK • JOHN CONNELL
HARRIET DERMAN • WILLIAM A. DREIER
CHRISTINE DUFFY • JERRY F. ENGLISH
BERNARD K. FREAMON • JOSEPH A. HAYDEN JR.
RICHARD M. HLUCHAN • GEORGE J. KENNY
MYRON W. KRONISCH • VIRGINIA LONG
LAWRENCE LUSTBERG • MELINDA MAIDENS
ARNOLD K. MYTELKA • LYNN FONTAINE NEWSOME
CARL D. POPLAR • STEVEN M. RICHMAN
BRUCE ROSEN • ANNE C. SINGER
MICHAEL S. STEIN • EDWIN H. STERN
PETER G. VERNIERO • JUSTIN P. WALDER
DANIEL M. WALDMAN • ROBERT F. WILLIAMS
ALFRED C. CLAPP (1903-1988)
MORRIS M. SCHNITZER (1910-1997)

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