In a big day for the campaign for marriage equality, trial judges moved the ball forward significantly in New Jersey and Illinois on September 27. Mercer County (NJ) Superior Court Judge Mary C. Jacobson granted a motion for summary judgment filed by Lambda Legal on behalf of Garden State Equality, a gay rights group, ruling that New Jersey must begin issuing marriage licenses to same-sex couples beginning on October 21, 2013. Cook County (IL) Circuit Court Judge Sophia H. Hall denied a motion by several county clerks to dismiss two pending lawsuits brought by Lambda Legal and the ACLU contending that Illinois’ denial of marriage rights to same-sex couples violates equal protection and due process provisions of the Illinois Constitution. Garden State Equality v. Dow, NO. L-1729-11 (N.J. Superior Ct., Mercer County); Darby v. Orr; Lazaro v. Orr, Case No. 12 CH 19718 (IL Circuit Ct., Cook County).
In both states, the decisions may have a quick political impact, since potential legislative action on marriage equality is pending and expected to come before legislators before the end of the year. In New Jersey, a marriage equality law approved by the legislature and vetoed by Governor Chris Christie could come up for a veto override vote in the lame duck session of the legislature after the November election. In Illinois, a marriage equality measure approved by the Senate could come up for a vote in the General Assembly during the “veto session” that will begin late in October. In both states, the looming possibility that the state courts will mandate same-sex marriage using state constitutional provisions that would not be susceptible to U.S. Supreme Court review might prod the last few reluctant legislators to take action on the pending bills, with their heavily negotiated procedural requirements and protections for religious dissenters, rather than to let same-sex marriage be mandated judicially without such provisions in place.
The New Jersey decision was of greater immediate significance for potential application elsewhere, because Judge Jacobson was the first judge to rule that the U.S. Supreme Court’s Windsor decision, striking down Section 3 of DOMA, made New Jersey’s failure to let same-sex couples marry unconstitutional, in light of New Jersey’s provision of civil unions that give same-sex couples the legal rights that accompany marriage under state law. Her opinion provides an analysis that can now play out in the pending Illinois, Hawaii and Nevada marriage equality lawsuits.
The New Jersey case, Garden State Equality v. Dow, was filed after the New Jersey Supreme Court split 3-3 on the question whether the New Jersey Civil Union Law had failed to fulfill the New Jersey Supreme Court’s mandate in its 2006 decision, Lewis v. Harris, that same-sex couples be provided the same legal rights and benefits as different-sex couples. The New Jersey legislature responded by passing the Civil Union Act, which also created a Commission to study whether the Act fulfilled the court’s mandate.
The Commission issued a report concluding that civil union partners were not receiving equal treatment from government officials and private businesses. Lambda Legal, representing the Lewis plaintiffs, petitioned the state Supreme Court to reconsider whether same-sex couples were entitled to marry, relying on that Commission report as evidence. But the Supreme Court couldn’t muster a majority in favor of Lambda’s petition, with some justices suggesting that Lambda needed to go back to the trial court to prove the unequal treatment before the Supreme Court could act.
Lambda’s new case survived a motion to dismiss last year and was proceeding with discovery when the U.S. Supreme Court struck down Section 3 of the Defense of Marriage Act on June 26 in the Windsor case. Lambda promptly filed a summary judgment motion in the Superior Court, arguing that federal recognition of same-sex marriages meant that same-sex couples in New Jersey were being deprived of equal rights as a matter of law because they would not be entitled to federal recognition of their relationships.
This was clear from the Windsor ruling, in which the Supreme Court stated that the federal government’s obligation under the 5th Amendment guarantee of “equal liberty” was to recognize state-sanctioned same-sex marriages on the same basis as different-sex marriages, and only those marriages sanctioned by the states. This conclusion was bolstered over the ensuing months as federal agencies made clear that Windsor changed nothing so far as civil unions or domestic partnerships were concerned; federal recognition would extend only to same-sex marriages.
The state responded to Lambda’s motion with a variety of arguments, but the central one, which Judge Jacobson took most seriously, was that any difference in treatment between same-sex and different-sex couples after the Windsor decision was due to the federal government’s refusal to recognize civil unions, and not to any action taken by the state. New Jersey’s attorney general argued that New Jersey had not taken any action one way or the other after Windsor was decided, and that if there was any equal protection violation, it was being committed by the federal government in failing to recognize civil union partners as equal to marital partners. Thus, Attorney General Paula Dow argued, the plaintiffs were suing the wrong defendants. Civil union partners who were denied federal benefits should be suing the federal government for denial of their equal protection rights.
Judge Jacobson rejected this argument, finding that by creating a domestic relations law structure under which same-sex couples were excluded from equal access to the status of marriage, New Jersey had engaged in state action that resulted in same-sex couples having an inferior status in terms of their rights after the Windsor decision.
“By statutorily creating two distinct labels – marriage for opposite-sex couples and civil unions for same-sex couples – New Jersey civil union partners are excluded from certain federal benefits that legally married same-sex couples are able to enjoy,” she wrote. “Consequently, it is not the federal government acting alone that deprives plaintiffs of federal marriage benefits – it is the federal government incorporating a state domestic relations structure to make its determinations, and it is that state structure that plaintiffs challenge in this motion. That structure may not have been illegal at the time it was created – indeed, the parallel marriage/civil union statutory scheme was specifically sanctioned in advance in Lewis – -but it was certainly an ‘action’ of the state.”
She also rejected the state’s argument that it was premature to make this decision because many federal agencies had not yet announced how they would adjust their policies in light of Windsor, and because bills had been introduced in Congress to extend federal recognition to civil union partners. Jacobson pointed out that under the federal policies that have already been announced since Windsor was decided, same-sex civil union partners were now experiencing unequal treatment in very tangible ways, particularly under the federal tax laws and the Family and Medical Leave Act.
“Following the Windsor decision of the United States Supreme Court and the subsequent implementation of that decision by several federal agencies,” wrote the judge, “same-sex couples are only afforded the same rights and benefits enjoyed by opposite-sex married couples if they are married. Since New Jersey currently denies marriage to same-sex couples, same-sex civil union partners in New Jersey are ineligible for many federal marital benefits. The parallel legal structures created by the New Jersey Legislature therefore no longer provide same-sex couples with equal access to the rights and benefits enjoyed by married heterosexual couples, violating the mandate of Lewis and the New Jersey Constitution’s equal protection guarantee. Under these circumstances, the current inequality visited upon same-sex civil union couples offends the New Jersey Constitution, creates an incomplete set of rights that Lewis sought to prevent, and is not compatible with ‘a reasonable conception of basic human dignity,’” quoting from the Lewis opinion. “Any doctrine urging caution in constitutional adjudication is overcome by such a clear denial of equal treatment.”
Jacobson concluded, “The equality demanded by Lewis v. Harris now requires that same-sex couples in New Jersey be allowed to marry.” However, bowing to reality, she delayed the effect of her decision for several weeks. “To allow the State adequate time to prepare to effectuate this ruling or to pursue appellate remedies, the court directs that it take effect on October 21, 2013.” There seems little doubt that Governor Christie will direct the Attorney General to file an appeal.
The Illinois ruling was of less immediate import, because it marks an earlier stage in the litigation. Unlike the Republican state administration in New Jersey, the Democratic state administration in Illinois was unwilling to defend the two marriage equality cases filed by Lambda Legal and the ACLU, so Judge Hall allowed a group of county clerks to intervene as defendants. The clerks filed a motion to dismiss the lawsuits, arguing that the existing law banning same-sex marriages did not discriminate unlawfully.
The plaintiffs claimed violations of the Illinois constitution on several theories: unlawful discrimination because of sexual orientation, unlawful discrimination because of sex, violation of the fundamental right to marry, violation of the right to privacy. In the end, Judge Hall concluded that the plaintiffs could pursue their claims of sexual orientation discrimination and deprivation of a fundamental right to marry.
In reaching her conclusion, Judge Hall found that the plaintiffs had put in play the possibility that the court could conclude that sexual orientation is a suspect or quasi-suspect classification under the Illinois constitution, which would mean that on the equal protection claim the defendants would have to prove that the state had a strong or compelling policy justification for excluding same-sex couples from the right to marry, and that the justifications argued by the defendants in their motion to dismiss the case might prove insufficient to meet that burden. She also found that the plaintiffs might prevail on their claim that the same-sex marriage ban deprived them of a fundamental right, which would also shift the high burden of justification to the defenders of the law. The court’s analysis clearly signaled the likely outcome in favor of the plaintiffs if this case goes to trial or gets decided on a motion for summary judgment after discovery is concluded.
Judge Hall’s conclusion that plaintiffs could not advance a sex discrimination was a bit strange in light of her analysis of existing precedents on the issue. She noted that courts in other jurisdictions had been divided over whether a denial of marriage to same-sex couples constitutes sex discrimination, with a majority rejecting that theory, although it was accepted by the Hawaii Supreme Court in 1993 in the Baehr v. Lewin case and also by Judge Walker of the federal district court in California in the Proposition 8 case. More significantly, however, in terms of Illinois constitutional law, she mentioned a 1979 appellate court ruling, Wheeler v. City of Rockford, which, at least based on the excerpt she quoted from her opinion, seemed to adopt a theory of sex discrimination that would apply to the marriage case.
In Wheeler, the court was considering whether an ordinance regulating the massage industry violated the state constitutional ban on sex discrimination. The ordinance said that men were forbidden to massage women and women were forbidden to massage men. Somebody seeking a massage from a licensed operator could only get a massage from a person of the same sex. The state argued there was no sex discrimination in this, because men and women were treated equally. The court said there was discrimination, because “the basis for allowing or refusing the right to give a massage is determined solely on whether the person massaging and the customer are of the same gender.” Judge Hall then noted that the Illinois court had relied on the U.S. Supreme Court’s decision in Loving v. Virginia, which held that Virginia was discriminating based on race when it prohibited interracial marriage, even though the statute theoretically imposed equal burdens on both white and black people who wanted to marry. The evil was establishing a racial classification and making a person’s access to an important right – the right to marry the partner of their choice – depend on the race of the individuals. Similarly, Illinois establishes a sexual classification and makes the permissible choice of a marital partner turn on the sex of the parties.
But Hall insisted that the Illinois marriage law does not create a classification based on sex, but rather based on sexual orientation. This seems a bit strange, because the statute does not speak of sexual orientation at all; gay people are free to marry persons of the opposite sex, and straight people are prohibited from marrying persons of the same sex. But her conclusion is consonant with her rejection of the defendants’ argument that the marriage law does not discriminate because of sexual orientation, as she found that it precludes gay people from marrying their partners of choice but not straight people, thus imposing an unequal burden on gay people (assuming, of course, that straight people rarely have an interest in marrying a same-sex partner).
In the end, the main significance of Judge Hall’s rulings is that were the case to proceed as a sex discrimination claim, the requirement of heightened scrutiny could be assumed without need for further proof. As a sexual orientation discrimination claim, however, there is a burden on the plaintiffs to prove that heightened scrutiny is the appropriate standard for judicial review if they want to shift the burden to the defendants to prove that there is a significant policy justification for excluding same-sex couples from marriage in Illinois.
Actually, the plaintiffs pointed out, Illinois’ adoption of a Civil Union Act, which went into effect in 2011, significantly undermines the defendants’ rational basis argument, as Illinois has adopted a policy of extending equal treatment to same-sex couples under the state’s family law regime. This knocks the legs out of the defendants’ argument that the state can exclude gays from marrying due to concerns about the “best” circumstances for child-rearing, or that marital rights should be reserved to different-sex couples in order to channel responsible procreation.
The Windsor ruling, and the New Jersey Superior Court’s analysis of its impact on the equal protection claims of gay plaintiffs, will undoubtedly contribute to lightening the plaintiffs’ burden in Illinois, as Justice Antonin Scalia despairingly observed in his dissent in Windsor, where he predicted that the Supreme Court’s opinion would be very helpful to plaintiffs challenging the denial of marriage rights in the remaining non-equality states. The two decisions rendered on September 27 bring closer the fulfillment of Scalia’s prediction.