After Mercer County Superior Court Judge Jacobson issued her decision on September 27 holding that same-sex couples have a state constitutional right to marry in New Jersey, Gov. Chris Christie reiterated his opposition to having this issue decided by the courts and announced that the state would ask the NJ Supreme Court to take up the case up directly on appeal, by-passing the NJ Appellate Division of the Superior Court. At the same time, the State filed a petition asking Judge Jacobson to stay her decision pending the appeal. Judge Jacobson denied the motion for a stay on October 10, confirming that her decision will go into effect on October 21. The State filed papers appealing her ruling on the motion to the Appellate Division. The plaintiffs, who agree that if this case is to go on appeal it should by-pass the Appellate Division, filed papers to that effect as well. On October 11, the Supreme Court filed an Order, granting the State’s motion “for direct certification” and, at the same time, announcing “because the issues raised in the stay motion presently pending in the Superior Court, Appellate Division, are closely related to the issues raised in the appeal, the Court is taking jurisdiction of the stay motion subject to the briefing schedule already established by the Appellate Division by order dated October 10, 2013.”
Translating all this legalese into English: The N.J. Supreme Court will decide on the State’s appeal as to the stay sometime this week. My bet is that they will reverse Judge Jacobson’s denial of the stay, not because there is anything wrong with the legal reasoning of her opinion, but because, mainly as a political matter, they will not require the state to issue marriage licenses to same-sex couples until they — the Supreme Court — have ruled on the merits of the State’s appeal of Judge Jacobson’s September 27 decision. In terms of precedent for this, I would note that the 9th Circuit granted a stay of US District Judge Walker’s decision in the Proposition 8 case, and subsequently ruled in favor of invalidating Prop 8 once it reached the merits of the case. The stay was granted in the Prop 8 case even though there was a serious challenge to the standing of the Prop 8 proponents to appeal the trial court’s ruling. Whatever the legal analysis of New Jersey’s law on the availability of stays pending appeal, as a practical matter I would be amazed if the N.J. Supreme Court would let stand Judge Jacobson’s original September 27 order before the Supreme Court had a chance to consider the case on the merits.
The Supreme Court has established an expedited schedule for dealing with the appeal on the merits. The State’s brief is due by November 4, amicus briefs and motions seeking permission to file them are due by November 12, answers to the motions for permission to file amicus briefs are due by November 18, the Plaintiffs’ brief is due by November 25, any reply briefs and parties’ briefs responding to the amicus brief are due by December 3, and the case will be argued on January 6 or 7 (depending what else is pressing on the court’s calendar).
This is lightning fast for an appeal of a trial court ruling – to be argued just over 3 months after the trial court’s ruling was issued – which suggests that the court sees this case as urgent now that the federal government is recognizing same-sex marriages and NJ civil union couples are being denied numerous rights and benefits that could otherwise be available to them under federal law if they were allowed to marry.
Placing the argument during the first week in January raises the possibility that the argument will not have to be held if the legislature gets its act together and overrides Gov. Christie’s veto of the marriage equality bill during the lame duck session after the November election. If the bill is enacted over the governor’s veto, the Court would probably respond favorably to a motion to dismiss the appeal as moot.