Yesterday, Mercer County Superior Court Judge Linda Feinberg granted Lambda Legal's motion to reconsider her earlier ruling dismissing a federal equal protection claim in Garden State Equality v. Dow, 2012 Westlaw 540608, and ruled that the claim will be reinstated as part of the case. In Garden State Equality, plaintiffs are arguing that the New Jersey Civil Union Act, enacted in response to the New Jersey Supreme Court's 2006 ruling in Lewis v. Harris, 188 N.J. 415, does not provide same-sex couples with true equal protection as compared to married different-sex couples, but instead creates an unequal and inferior status, in violation by the Lewis v. Harris ruling. Judge Feinberg's decision foreshadows a likely ruling in favor of plaintiffs on the merits, but…. at the end of January, Judge Feinberg announced that she would be retiring in March, so she will not be presiding over the trial in this case.
The timing of this ruling is quite interesting. Just last Friday, Governor Chris Christie vetoed the Marriage Equality bill that had been approved by both houses of the New Jersey legislature earlier in the week. Based on the votes in both houses, an override is not an immediate prospect, although proponents of same-sex marriage in New Jersey vowed to work on recruiting additional votes for an override, looking at a January 2014 deadline when the term of this legislature finally ends. So this ruling on February 21, 2012, makes clear that the marriage fight in New Jersey is proceeding on parallel tracks, and the litigation track is alive and well.
The state's arguments against the federal Equal Protection claim were essentially threefold: First, that the U.S. Supreme Court's 1971 dismissal of a federal same-sex marriage suit on the ground that it did not present a "substantial federal question" (Baker v. Nelson) mandated dismissal; Second, that even if an Equal Protection Claim could be pressed, it would easily be defeated by the state under rationality review; and Third, that there was insufficient "state action" to make this a federal Equal Protection issue.
As to the first argument, Judge Feinberg accepted the plaintiffs' response that Baker v. Nelson is no longer binding on the court, because it has been superseded by developments in the law since 1971. This is actually a rather obvious argument, as all the advances in LGBT legal rights that are relevant to this case post-dated Baker v. Nelson, most significantly the Supreme Court victories in Romer v. Evans (1996) and Lawrence v. Texas (2003). But Judge Feinberg noted other Supreme Court decisions as significant, including Loving v. Virginia (even though it predated Baker and in fact had provided the main precedent argued by the Baker plaintiffs in seeking a marriage license in Minnesota) and Frontiero v. Richardson, a 1973 case in which the Supreme Court applied heightened scrutiny under Equal Protection to a federal policy that discriminated against women. At the time of Baker, the Supreme Court had not yet applied heightened scrutiny to sex discrimination claims.
"Quite simply," wrote Judge Feinberg, "Baker has been undermined by subsequent Supreme Court precedent. . . The Baker case was brought at a time when 'the history of systemic and harsh discrimination against lesbians and gay men had barely been challenged," citing a 2009 law review article by Bennett Klein (of GLAD) and Daniel Redman (of NCLR). "While in Baker the Supreme Court dismissed the appeal for want of a substantial federal question, based on the evolution set forth herein, subsequent developments support the conclusion that the issues raised in Baker would no longer be considered unsubstantial. Accordingly, in today's legal arena, Baker is not controlling."
The judge then went on to consider the significant of the recent three-judge panel decision in the 9th Circuit in Perry v. Brown, affirming a trial court ruling that California Proposition 8 is unconstitutional. She quoted Judge Walker's conclusion that Proposition 8 "fails to survive even rational basis review" under the Equal Protection Clause, and then notes Circuit Judge Reinhardt's conclusion, affirming Judge Walker's holding on the ground that Proposition 8 "singled out a certain class of citizens for disfavored treatment."
"Here, under the third count, plaintiffs assert that the Civil Union Act violates the Equal Protection Clause of the Fourteenth Amendment by denying them access to marriage and relegating them to a separate and arguably second class status, while not serving any legitimate state interest," wrote the judge. "The Civil Union Act, unlike Proposition 8, was intended to confer more benefits on same-sex couples, rather than take any away. However, the Civil Union Act is arguably similar because it singles out a certain class of citizens, namely gays and lesbians, for allegedly disfavored treatment. While the Civil Union Act does bestow certain benefits on same-sex couples, it also denies them the designation of marriage for their committed relationships and it allegedly does not bestow upon plaintiffs all of the same benefits enjoyed by their heterosexual counterparts." Consequently, she ruled, plaintiffs can proceed on both federal and state constitutional equal protection grounds in their lawsuit.
It seems clear that the panel decision in Perry helped to create a "tipping point" for the judge in backing away from her earlier ruling rejecting the federal Equal Protection claim.
Judge Feinberg refrained from specifying what standard of proof would be applicable upon trial of this claim, pointing out that the New Jersey Supreme Court in Lewis had already found that there was "no legitimate governmental purpose for denying same-sex couples the same benefits and responsibilities afforded to their heterosexual counterparts." Thus the purpose of this proceeding going forward is to make a trial record from which the court can determine whether the Civil Union Act, as charged by the plaintiffs, fails to provide the same benefits and responsibilities as married couples enjoy.
Judge Feinberg observed, "For the most part, the justification offered by the State to support the distinction between heterosexual and same-sex couples in the Civil Union Act is 'tradition.' Since marriage has historically been defined as the union between a man and a woman, the State argues this is a sufficient basis to distinguish between heterosexual and same-sex couples." But she points out that courts have rejected "tradition" as a justification for unequal government treatment.
Turning to the last part of the state's argument against the 14th Amendment claim, she found there was a sufficient basis in the record to find "state action," at least for purposes of determining whether the Equal Protection claim can be pursued. The guarantee of equal protection of the laws is ultimately a guarantee of equal treatment by the government and its agents, so a remaining issue in the case is whether whatever inequalities exist under the Civil Union Act are attributable in some way to the government and are not entirely the result of decisions by private actors, such as businesses and individuals who are not acting in a governmental capacity. Here the documentation gathered by the Civil Union Review Commission shows both private and public forms of unequal treatment, and the emphasis of the Plaintiffs going forward will need to document the public forms of inequality and to show how the private forms of inequality actually flow from a governmental action – the determination by the legislature to confer a separate and unequal status on same-sex partners.
But Plaintiffs will have to devise their trial strategy in the light of Judge Feinberg's pending retirement, since their proof will be submitted to and evaluated by a different judge.