Refusing the Christie Administration’s request to stay Judge Mary Jacobson’s September 27 ruling that same-sex couples have a constitutional right to marry in New Jersey, the state’s supreme court unanimously ruled on October 18 that Jacobson’s order will go into effect on October 21. Although the court will hear oral arguments in January on the merits of the case, the opinion by Chief Justice Stuart Rabner strongly signals that the state will most likely lose the appeal. “Because, among other reasons, the State has not shown a reasonable probability of success on the merits,” Rabner wrote, “the trial court’s order — directing State officials to permit same-sex couples, who are otherwise eligible, to enter into civil marriage starting on October 21, 2013 — remains in effect.”
The underlying basis for these rulings can be found in the New Jersey Supreme Court’s 2006 ruling, Lewis v. Harris, where a majority of the court held that under the New Jersey constitution same-sex couples were entitled to the same rights and benefits of marriage as different-sex couples, at least to the extent that the state could confer such rights. (The remaining justices, concurring in part, opined that same-sex couples should be entitled to marry.) At that time, the court left it up to the legislature to decide whether to allow same-sex couples to marry or to provide some alternative status that would provide the same rights and benefits. The legislature responded by passing a Civil Union Act, and established a commission to review the implementation of the Act and report back on whether it was accomplishing what was required in terms of equal treatment. The Review Commission subsequently issued a report finding that civil union partners were not enjoying equal treatment, either from government officials or private actors.
The legislature passed a marriage equality bill in 2012, but Governor Chris Christie vetoed it, arguing that the issue should be decided by the voters in a referendum. Legislative leaders refused to authorize a referendum, but have until January 14, 2014, to attempt to override the governor’s veto. Such a vote was expected to be held during the lame duck session of the legislature after the November election.
Lambda Legal, which had represented the plaintiffs in Lewis v. Harris, filed an application with the Supreme Court to reopen the case and order the state to allow same-sex marriages, submitting the Commission Report as its main evidence on unequal treatment. The Court was evenly divided about whether to go forward, ultimately advising that a new case should be initiated in the trial court to establish a factual record showing unequal treatment. Lambda Legal then filed a new case, representing Garden State Equality, a gay rights organization, and several same-sex couples. Judge Jacobson of Mercer County Superior Court denied the state’s motion to dismiss the case last year, holding that plaintiffs could proceed to discovery. In the meantime, on June 26, the U.S. Supreme Court struck down Section 3 of the Defense of Marriage Act in U.S. v. Windsor, and the federal government subsequently announced that it would recognize lawfully contracted same-sex marriages. Various federal agencies made clear, however, that under Windsor only marriages would be recognized, not civil unions or domestic partnerships. Lambda Legal then filed a summary judgment motion in the New Jersey case, arguing that New Jersey Civil Unions clearly failed the state constitutional requirement articulated in Lewis v. Harris, because they were not recognized for any federal purposes.
In opposing Lambda’s motion, the Christie Administration argued that it was not the state’s fault or responsibility that the federal government was denying recognition to civil unions. The state argued that plaintiffs should be suing the federal government. As the state had not taken any action on this subject after the Windsor decision, the state argued that there was no “state action” to challenge in this case. Judge Jacobson decisively rejected this argument and all others advanced by the stat,e in her September 27 ruling granting summary judgment to Lambda, and she subsequently rejected the state’s application to stay her ruling.
The Christie Administration asked the Appellate Division to stay the ruling, and asked the Supreme Court to accept the case for a direct review. The Supreme Court agreed to review the case directly, and also transferred the application for the stay from the Appellate Division. Keeping an entire state in suspense until the 11th hour, the court issued its ruling upholding Jacobson’s denial of the stay application on Friday afternoon, just days before Jacobson’s order was to take effect a minute after midnight on Monday morning.
Although the grounds for granting or denying a stay and the grounds for an ultimate ruling on the merits are not the same, the court’s unanimous decision makes it very unlikely that the state would ultimately prevail on the merits. “Because State law offers same-sex couples civil unions but not the option of marriage,” wrote the Chief Justice, “same-sex couples in New Jersey are now being deprived of the full rights and benefits the State Constitution guarantees.” Rabner pointed out that the Civil Union Act no longer achieves the purpose that the court had specified in Lewis v. Harris. “The State’s statutory scheme effectively denies committed same-sex partners in New Jersey the ability to receive federal benefits now afforded to married partners. The trial court therefore correctly found cognizable action by the State. We conclude that the State has not shown a reasonable probability or likelihood of success on the merits.”
The court also rejected the state’s argument that it would be harmed if the order were not stayed, and on the question of balance of harms, showed that staying the decision would be immediately harmful to same-sex couples who were denied the right to marry because of the long list of federal rights and benefits that would be denied to them. “Plaintiffs highlight a stark example to demonstrate the point,” wrote Rabner. “If a civil union partner passes away while a stay is in place, his or her surviving partner and any children will forever be denied federal marital protections. The balance of hardships does not support the motion for a stay.”
Judge Jacobson had noted that in cases presenting questions of significant public importance, the public interest also is considered. “What is the public’s interest in a case like this?” asked the Chief Justice. “Like Judge Jacobson, we can find no public interest in depriving a group of New Jersey residents of their constitutional right to equal protection while the appeals process unfolds. . . We find that the compelling public interest in this case is to avoid violations of the constitutional guarantee of equal treatment for same-sex couples.”
The court concluded, “The trial court’s order dated September 27, 2013, remains in full force and effect. State officials shall therefore permit same-sex couples, who are otherwise eligible, to enter into civil marriage beginning on October 21, 2013.”
According to news reports from New Jersey, Newark Mayor (and U.S. Senator-elect) Cory Booker has already planned to conduct marriages at City Hall for a group of same-sex couples at one minute after midnight on Monday morning, and several county registrars, anticipating the possibility that the stay would be denied, had begun accepting applications for marriage licenses on Friday morning to comply with the 72-hour waiting period between license and marriage ceremony, even though state officials had cautioned them not to take action until the Supreme Court had ruled. Since it is now inevitable that same-sex couples will win – have already virtually won – the right to marry in New Jersey, an override vote in the legislature, which will require some Republicans to vote to override, seems very likely to succeed as well.