New Jersey Makes it 14: Marriage Equality Comes to the Garden State

When the New Jersey Supreme Court announced on  Friday, October 18, 2013, that it was denying the state government’s motion to stay the marriage equality ruling that Mercer County Superior Court Judge Mary Jacobson issued on September 27, it effectively made New Jersey the 14th state (and 15th U.S. jurisdiction, counting the District of Columbia) to embrace marriage equality for its residents and visitors.  Governor Chris Christie, a lawyer and former U.S. Attorney, can read a judicial opinion and understand it, and he quickly and correctly concluded that the litigation game was over.  Although technically the Supreme Court was scheduled to hear his appeal on the merits in January, that no longer made any sense, because the opinion for the unanimous Supreme Court by Chief Justice Stuart Rabner made perfectly clear that the appeal was totally without merit.

So Christie made the correct call, authorizing a statement on Friday that he would implement the court’s order, and on Monday, October 21, a few hours after the first weddings had taken place right after midnight in Newark and some other cities, authorizing another statement that he was withdrawing the appeal.

But this leaves some unfinished business that really should be attended to in order to tie up loose ends.  Last year the legislature approved a marriage equality bill.  Governor Christie vetoed the measure, expressing his view that the question of marriage equality should be for the voters, not for the legislature or the courts.  The legislature has until January 14, 2014, to attempt to override the veto.  For political reasons, it seems unlikely that Gov. Christie would now also withdraw his veto and sign the bill.  He plans to seek the Republican nomination for president in 2016, and — at least in light of the current views of Republicans — he can’t be seen to have done anything to facilitate same-sex marriage that wasn’t obedient to a court order.  So it’s up to the legislature to take the override vote during its lame-duck session.

This is no idle exercise.  A quick perusal of the bill shows that its passage would be very useful to tie up loose ends and effectuate a smooth transition of the state into marriage equality.  The bill specifies that existing civil unions will be treated as marriages, although civil union partners can, if they wish, obtain marriage licenses and go through marriage ceremonies.  But in light of the position of all federal agencies that have articulated a view that the federal government will recognize legally contracted same-sex marriages but not civil unions, a New Jersey statute deeming civil unions to be marriages under state law will be very useful in extending federal rights and benefits to N.J. civil union partners who for whatever reason don’t take the additional step of getting married; this makes it unnecessary for them to do so, and provides protection if they want to take some time to plan out their weddings and not rush to get married right away.  The bill, for example, would give them standing to handle their federal taxes as married, and to claim such benefits as social security survivor’s benefits or federal employee spousal benefits.

Another thing the bill does is to spell out and clarify the interrelationship of marriage equality and religious freedom in New Jersey.  Although what the legislature has done could be modified by court decisions if contested, as it stands the bill specifies broad protection for clergy and religious institutions whose religious beliefs reject same-sex marriage, and protects them from any liability under state law for refusing to be involved with same-sex marriages.  The legislature did not go as far as some religious lobbyists sought, but it went about as far as the constitutional balance would probably be struck were a court to confront the issue.  Although passage of the bill is not strictly necessary to protect religious organizations, because courts would likely come to the same conclusions in drawing boundaries, having the provisions in the statute books would be helpful in clarifying the scope of religious exemptions.  Although the bill is not entirely clear on the question, it seems as well to allow religious institutions to refuse to recognize the same-sex marriages of their employees and clients, for purposes of benefits and services.  The exact extent of this exemption may have to be worked out in litigation.

Now that it is clear that marriage equality has arrived and the only thing remaining to be settled for New Jersey are these particular details, perhaps enough Republican legislators can be convinced of the efficacy of conforming the state’s marriage statute to the reality.  A signal from the governor that he is not opposed to a “free conscience” vote on the override — which he should be in a position to give after the election on November 5 — would undoubtedly be useful.

Meanwhile, congratulations are in order for Garden State Equality, Lambda Legal (and Lambda’s staff attorney on the case, Hayley Gorenberg), New Jersey attorney Lawrence Lustberg, who argued the summary judgment motion, the numerous New Jersey organizations that joined in the amicus effort, Mercer County Superior Court Judge Mary Jacobson for two excellent opinions (on the merits and on the stay motion) and the magnificent New Jersey Supreme Court, which rose above politics to apply its established legal tests in determining that there was no legitimate ground to stay the trial court’s ruling.

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