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N.J. Federal Court Rejects Constitutional Challenge to State Ban on “Gay Conversion Therapy” for Minors

Posted on: November 9th, 2013 by Art Leonard No Comments

U.S. District Judge Freda L. Wolfson has granted the state of New Jersey’s motion for summary judgment, rejecting a constitutional challenge by practitioners of “sexual orientation change efforts” (SOCE) to a recently enacted state law that prohibits licensed counselors from providing such therapy to minors.  (SOCE is popularly known as “gay conversion therapy.”)  Following along the lines of a recent decision by the U.S. Court of Appeals for the 9th Circuit in San Francisco, which rejected a similar challenge to a virtually identical California statute, Judge Wolfson found in King v. Christie, 2013 U.S. Dist. LEXIS 160035, announced on November 8, that the New Jersey statute neither regulated constitutionally protected speech nor improperly restricted free exercise of religion.

The New Jersey legislature approved A3371 over the summer, and Governor Chris Christie signed it into law on August 19, 2013, to take effect immediately.  Just days later, the plaintiffs — two practitioners of SOCE and two associations that promote such therapy — filed their lawsuit.  Since the suit was filed, a separate lawsuit was started on behalf of a minor client and his parents making a similar constitutional argument.  This case was also assigned to Judge Wolfson, but no motions are yet on file in that case, Doe v. Christie.

The legislature included in the bill its findings, based on testimony and official statements from a variety of professional counseling organizations, that SOCE cannot deliver on what it promises — that is, that sexual orientation is a human characteristic that is not amenable to change through counseling — and that the practice of SOCE may cause psychological harm to the client.  The legislature did not seek to ban licensed counselors from offering such therapy to adults, but concluded that the danger of harm was particularly acute for minors, who are not necessarily in the position to give informed consent and may be pressured into submitting to the therapy by their parents or other authority figures.  Judge Wolfson noted that the statute applies only to professional counselors licensed by the state, and does not purport to regulate the activities of unlicensed counselors, such as clergy.  Furthermore, she noted, as had the federal courts in California considering the same issues, that the statute does not prohibit licensed counselors from speaking about SOCE, recommending it, or referring clients to unlicensed persons or out-of-state counselors.

These details bolstered the court’s conclusion that A3371 was not intended to regulate speech, but rather was a regulation of clinical practice — conduct.  Judge Wolfson relied on precedents holding that the state may regulate the conduct of licensed professionals who are providing healthcare services, even when those services may be delivered — as is the present-day case of many practitioners of SOCE — through talking to and with the client.  (Historically, however, SOCE has not been so limited, as practitioners have in the past used various non-speech therapies to attempt to “change” their clients’ sexual orientation.  Some of those therapies would today be considered forms of physical or psychological torture, and others would be deemed laughably pathetic.)  She observed that both court decisions and professional literature refer to counseling as a process of applying theories and practices to produce some change in the client, which is conduct, not just speech, even though speech may be a mechanism by which the counseling service is provided.

Although the 9th Circuit’s decision upholding the California statute, Pickup v. Brown, 728 F.3d 1042 (2013), is not binding on a federal district judge in New Jersey, which is within the 3rd Circuit, Judge Wolfson pointed out that in the absence of any direct 3rd Circuit precedents, she would “turn to the Ninth Circuit’s decision where appropriate,” and she ended up quoting from it extensively in her opinion.

In rejecting the plaintiffs’ argument that the state was barred by the First Amendment from banning a particular form of therapy that is delivered through speech, Wolfson identified as a “fundamental problem” with the argument that “taken to its logical end, it would mean that any regulation of professional counseling necessarily implicates fundamental First Amendment free speech rights, and therefore would need to withstand heightened scrutiny to be permissible.  Such a result runs counter to the longstanding principle that a state generally may enact laws rationally regulating professionals, including those providing medicine and mental health services.”

Thus, the law would be upheld if the legislature could rationally believe that it would serve a legitimate interest of the state.  As to this, the professional literature was sufficient grounds for legislators to believe that the law would advance a legitimate interest in protecting minors.  Wolfson wrote, “here, the State has determined that the potential harm to minors from SOCE, however slight, is sufficient to outweigh any potential benefits.  In that connection, I note that Plaintiffs themselves acknowledge that there is a dearth of non-anecdotal evidence to support the success rate, and benefits of SOCE. . .  Because there is no constitutional right to practice a particular type of medical or mental health treatment, A3371’s prohibition of a particular form of counseling in which counselors apply therapeutic principles and procedures similarly does not implicate fundamental constitutional rights.”

Judge Wolfson found that “A3371’s prohibition on the practice of SOCE counseling is rationally related to the harm the statute seeks to prevent.  A3371 targets only licensed professionals who engage in professional counseling of minors, and restricts them from performing the specific type of conduct — SOCE counseling — the legislature deemed harmful.  This nexus is more than adequate to satisfy rational basis review.”  She also rejected the Plaintiffs’ argument that the statute was vague or overbroad, rejecting the argument that its enactment left the plaintiffs in a quandary as to what was prohibited and what was permitted regarding SOCE.   She particularly noted that the legislature was careful to distinguish between counseling intended to “change” sexual orientation and counseling “including sexual orientation-neutral interventions to prevent or address unlawful conduct or unsafe sexual practices” which “does not seek to change sexual orientation.”  Included in permissible counseling, of course, is counseling to assist individuals making a gender transition.  “Even if, ‘at the margins,’ there is some conjectural uncertainty as to what the statute proscribes,” she wrote, “such uncertainty is insufficient to void the statute for vagueness because ‘it is clear what the statute proscribes in the vast majority of its intended applications,’ namely counseling intended to alter a minor patient’s sexual orientation.”  She also noted that many courts had rejected the contention that the term “sexual orientation” is vague when used in a statute.

As to overbreadth, Wolfson found that this doctrine only applies when a statute forbids more constitutionally protected speech than is necessary to achieve a legitimate state purpose, but the doctrine would not apply here, in light of her conclusion that the statute does not regulate speech as such.

Wolfson also rejected an alternative argument by the plaintiffs that the statute infringes on the free exercise of religion of counselors or their clients.  She noted that clergy are not restricted from pursuing SOCE, so long as they are not acting as licensed professional counselors.  “Here, A3371 makes no reference to any religious practice, conduct, or motivation,” she wrote.  “Therefore, on its face, the statute is neutral” with respect to religion.  “Plaintiffs argue that A3371 will disproportionately affect those motivated by religious belief because A3371 effectively engages in impermissible ‘religious gerrymandering’ by providing individualized exemptions from the general prohibitions” by allowing counseling for gender transition or to help minors to adjust to their perceived sexual orientation.  Rejecting this argument, Wolfson pointed out that the history of this law shows that the legislature did not act out of any motivation concerning religion.  “From its plain language,” she wrote, “the law does not seek to target or burden religious practices or beliefs.  Rather, A3371 bars all licensed mental health providers from engaging in SOCE with minors, regardless of whether that provider or the minor seeking SOCE is motivated by religion or motivated by any other purpose,” so it is plainly “neutral in nature.”  Because of that facial neutrality, under Supreme Court precedents, “even if A3371 disproportionately affects those motivated by religious belief, this fact does not raise any Free Exercise concerns.”

As part of her opinion, Judge Wolfson also explained her prior bench ruling that Garden State Equality, New Jersey’s statewide gay rights organization, could intervene as a party to join the state of New Jersey in defending the statute.  The plaintiffs had argued that Garden State Equality did not have “standing” under Article III of the federal constitution to be a party in the case.  Wolfson pointed out that there is a split of authority among federal courts about whether a defendant intervenor needs constitutional standing, and no controlling precedent from the 3rd Circuit that would impose such a requirement in this case.  Normally, the issue of standing applies primarily to the plaintiffs.  Once plaintiffs with standing have sued an appropriate defendant, other parties with an interest can intervene with the permission of the court if they can show a legitimate interest in the matter.  Garden State’s membership includes parents and children who could be affected by the statute, so the court found this requirement to be satisfied.

Judge Wolfson’s ruling is subject to appeal to the 3rd Circuit.  There was no immediate indication whether an appeal would be filed.

 

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.

 

 

First Fruits of the DOMA/Prop 8 Decisions – Quick Response from the Obama Administration, Resumption of Marriages in California, and a Decision Striking a Michigan Law Against Partner Benefits

Posted on: June 30th, 2013 by Art Leonard No Comments

Response by the “defendants” in the DOMA and Prop 8 cases to the Supreme Court’s June 26 rulings was swift.

Within hours after the Court announced that Section 3 of DOMA was unconstitutional, the President had announced his “applause” for the decision and instruction to the Attorney General to coordinate with executive branch department heads to seek “smooth” implementation for federal recognition of lawfully-contracted same-sex marriages.  Some of the quickest responses came rolling in right away: Defense Secretary Hagel said steps would immediately be taken to extend spousal benefits to for same-sex spouses of military personnel, and Homeland Security Secretary Napolitano said that Customs & Immigration would immediately accord equal recognition to same-sex marriages.  The first green card was issued for a same-sex spouse just two days later, on Friday, for a Florida couple that included a Bulgarian citizen, and even more quickly, an immigration judge in New York halted a deportation hearing on Wednesday morning after being handed a copy of the DOMA decision fresh off the presses.  President Obama called Edie Windsor to congratulate her on the victory, but he did not, as far as we know, say “The check is in the mail,” which would have been a nice touch.  The IRS bureaucracy does not grind that quickly.  Indeed, the IRS may end up being one of the main sticking points for implementation, having emitted a non-committal statement that it would be providing guidance for taxpayers, employers and corporations, but not indicating when that would be forthcoming.  Office of Personnel Management sent out a notice to executive branch heads that same-sex spouses should immediately be recognized, and that an open enrollment period would commence for federal employees to enroll their same-sex spouses in benefits programs.   Nobody in the executive branch seemed inclined to wait until the Court issues its official mandate later in July before taking action, but that’s not surprising, given the government’s posture on the merits of the case!

Also within hours of the Prop 8 decision being announced, Governor Jerry Brown of California issued a statement attaching an opinion letter he had solicited weeks ago from Attorney General Kamala Harris about the scope of Judge Vaughn Walker’s Order.  Harris advised that when the stay was lifted by the 9th Circuit, same-sex marriage should be immediately available in every county.  In other words, she was rejecting the contention by the initiative proponents that the Order was limited to the plaintiff couples or the two counties where clerks were named defendants in the case. Brown followed her advice and had the Department of Public Health send a notice to all County Clerks and Recorders that upon lifting of the stay, same-sex couples should be treated the same as different-sex couples.  Harris contacted the 9th Circuit and urged that the stay be lifted right away.  The 9th Circuit panel that had issued the now-vacated decision expeditously responded on Friday, June 28, lifting the stay, opening the way for the plaintiff couples to get married that afternoon.   The San Francisco County Clerk’s office decided to stay open over the weekend to accommodate the demand for marriage licenses and ceremonies during Gay Pride Week, which was expected to draw 1.5 million to San Francisco for the annual festivities.

The Proponents tried to throw a wrench into the works, filing an “emergency motion” with the Supreme Court to halt the marriages, contending that the 9th Circuit could not lift the stay until the Supreme Court’s formal mandate arrived later in July.  Justice Kennedy, to whom the motion was referred, quickly denied it without comment.  Proponents are still expected to try other legal strategems in the days ahead.

Meanwhile, the first court to cite and rely on the Windsor case issued its ruling on Friday, June 28.  District Judge David M. Lawson, relying in part on the reasoning of Windsor as well as the Arizona domestic partnership benefits case, ruling in Bassett v. Snyder, 2013 WL 3285111 (E.D.Mich.), that plaintiffs were entitled to a preliminary injunction against the operation of a Michigan law that had been adopted to block public employers from providing domestic partnership benefits to their employees.  Under Public Law 297, employee benefits may be extended only to legal spouses, legal dependents, or legal heirs (those who could inherit from an employee under the intestacy laws) who are living with the employee.  The legislative history shows that this was passed specifically to override local governments that had extended benefits to non-marital partners.  Michigan’s Supreme Court had construed the state’s marriage amendment to forbid extending benefits to same-sex domestic partners as such, but many localities and government institutions had contrived a work-around to extend benefits to cohabitants who met certain minimal requirements, regardless of sex, and the law was intended to end this loophole as a means of enforcing the the marriage amendment.  The court found this to be a transparently discriminatory measure aimed mainly at same-sex couples — agreeing with the Arizona district court and the 9th Circuit (but failing to note the new development that the Supreme Court denied Arizona Gov. Jan Brewer’s cert petition on June 27) — and finding, in light of the reasoning of Windsor, that this would be an equal protection violation. 

Things are happening so fast, it’s difficult to keep up.  Lambda Legal announced it was filing a summary judgment motion in its pending N.J. Superior Court lawsuit seeking a ruling that the civil union act fails to provide equal rights for civil union partners, and the DOMA decision gives added weight to that contention.  A state legislator who represents the plaintiffs in a New Mexico marriage equality lawsuit announced he would petition the state supreme court to take up the case directly, in light of Windor, and of course the 9th Circuit will soon hear arguments in the Hawaii and Nevada cases.  (The Supreme Court denied a petition by the defenders of the Nevada marriage amendment, who were trying to leapfrog the 9th Circuit, also on June 27.)  Racing to keep up….