New York Law School

Art Leonard Observations

Posts Tagged ‘Garden State Equality v. Dow’

New Jersey Supreme Court Unanimously Rejects Stay in Marriage Ruling; Same-Sex Couples Can Marry on October 21

Posted on: October 18th, 2013 by Art Leonard No Comments

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.

New Jersey Superior Court Denies Motion to Stay Same-Sex Marriage Ruling

Posted on: October 10th, 2013 by Art Leonard 1 Comment

Mercer County Superior Court Judge Mary C. Jacobson has denied a motion by the New Jersey government to stay her decision ordering that the state begin granting marriage licenses to same-sex couples by October 21.   In a decision issued today (October 10), Jacobson found that none of the factors considered by courts in deciding such motions were met, and that the public interest would be served by allowing her decision to go into effect.  The Attorney General’s office immediately filed an “emergency motion” with the Appellate Division, seeking a stay.


Jacobson’s September 27 ruling in Garden State Equality v. Dow granted summary judgment to the plaintiffs on the claim that the state’s Civil Union Act no longer afforded equal treatment to same-sex couples, if it ever had, after the federal government started to recognize same-sex marriages pursuant to the Supreme Court’s June 26 decision in U.S. v. Windsor.   Governor Chris Christie promptly vowed to seek review directly in the New Jersey Supreme Court, while asking Judge Jacobson to stay her Order pending the appeal.


Jacobson explained that under New Jersey law, a stay of a trial court ruling will be granted only if (1) it is necessary to prevent irreparable harm, (2) the applicant presents a settled underlying claim and makes a showing of reasonable probability of success on the merits of an appeal, and (3) a balancing of the relative hardships of the parties favors granting injunctive relief because greater harm would occur if a stay is not granted than if it were.  In addition, Jacobson noted, in a case where there are public policy issues, the court should consider whether granting a stay is in the public interest.


As to all of these tests, Jacobson found that the state fell short.  She found that the state would not suffer irreparable harm if same-sex couples were allowed to marry while an appeal is pending.  A subsequent opinion by the New Jersey Supreme Court could declare such marriages invalid, and the state would have suffered no tangible harm at all.    Jacobson noted that her opinion did not invalidate any existing statute, but “simply directs the State to allow same-sex couples to marry,” leaving it up to the state whether it wants to repeal or modify the existing Civil Union Act.  “The State has found no New Jersey case to support the proposition that enjoining a state from enforcing a statute is per se irreparable harm,” she wrote.   Since the State had not offered any New Jersey precedents to support its irreparable harm argument, it cited cases from other jurisdictions, but Jacobson found them all unpersuasive or distinguishable.


On the second factor, she said that the state “has not shown that the underlying legal right it seeks to vindicate through its appeal is ‘settled.’”  Indeed, its “right” to deny marriage to same-sex couples is hardly settled, inasmuch as Judge Jacobson has ruled that in light of Windsor such a denial violates the New Jersey Supreme Court’s Lewis v. Harris decision, which held that same-sex couples are entitled to equal marital rights with different-sex couples.  Given that holding, she saw little chance the State was likely to prevail on the merits of its appeal.


“The Decision is a straight-forward application of Lewis, where the Supreme Court held that same-sex couples must have access to the same benefits available to opposite-sex married couples under the New Jersey Constitution, to the current situation, in which DOMA has been repealed and federal benefits determinations have been left up to federal agencies, many of which have refused to extend coverage for marital benefits to civil union couples,” she wrote.


In terms of balancing relative hardships, it is clear that delaying the date when same-sex couples can marry imposes a hardship on them, but not delaying it imposes no tangible hardship on the state.   Jacobson ran through a list of federal rights and benefits that would be unavailable to New Jersey civil union partners unless they could marry, and said “these inequalities violate the clear directive in Lewis.”


“On the other side of the equation,” she wrote, “the State invokes some sort of incorporeal harm to its sovereignty based on the need to maintain the current status of civil union couples pending appellate review, even as that status disadvantages those couples when compared to legally married New Jersey couples.  The State has not made any showing that by simply permitting a new group of people to engage in marriage, and thereby allowing them access to federal marital benefits, the State will suffer any concrete injury or significant administrative burden.  While the State argues that its sovereignty is somehow threatened by the Order, because it is the federal government’s actions that harm Plaintiffs, it persists in denying its responsibility for the current predicament of New Jersey civil union couples.”


Jacobson pointed out that the state has done nothing to try to get the federal government to recognize New Jersey civil unions, leaving the burden entirely on civil union partners to bring their own lawsuits against federal agencies seeking to compel such recognition, which may or may not succeed.  “Plaintiffs would face an enormous litigation burden if they were required to challenge, on their own, every federal agency interpretation of Windsor denying equal access to marital benefits to civil union couples.”


She goes on to chide the state for failing to step up and seek to vindicate the equality rights of its civil union couples by marshaling its “creative legal talent” to vindicate such rights on their behalf.   And she rejects the state’s argument that any delay for the appellate process to run its course would be brief, pointing out that “the time for completion of appellate review is completely uncertain,” and that her September 27 decision had already explained why the Plaintiffs’ harm was no longer merely speculative, as many federal agencies have already made clear that they will not recognize civil unions.


In terms of the public interest issue, Jacobson came down on the side of the plaintiffs.  “Protecting the civil rights of New Jersey citizens is surely a matter of public interest,” she wrote.  “Indeed, there is no ‘public interest’ in depriving a class of New Jersey residents of their constitutional rights while appellate review is pursued.  On the contrary, granting a stay would simply allow the State to continue to violate the equal protection rights of New Jersey same-sex couples, which can hardly be considered a public interest.”


Given her conclusions on the factors that courts consider to determine whether to stay a trial court ruling while the losing party is appealing, Judge Jacobson’s decision to deny the motion for a stay appears to be very well supported.  However, Governor Christie will undoubtedly push the Supreme Court to agree quickly to take the appeal and issue its own stay, and that court is not strictly bound to follow its own precedents, especially on such a politically charged matter as marriage equality.  However, if the New Jersey Supreme Court decides to stay true to its own precedents, it should affirm Judge Jacobson’s ruling and deny a stay as well.

New Jersey and Illinois Trial Courts Advance Pending Marriage Equality Cases in September 27 Rulings

Posted on: September 27th, 2013 by Art Leonard No Comments

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.