New Jersey Same-Sex Marriages to Begin October 21

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 Supreme Court has unanimously ruled that Jacobson’s order will go into effect on October 21.

Although the high court will hear oral arguments in January on the merits of the case, the October 18 opinion by Chief Justice Stuart Rabner strongly signals 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.”

State Supreme Court unanimously rejects bid to stay lower court ruling, signaling Christie will lose his appeal

The underlying basis for these rulings can be found in the New Jersey Supreme Court’s 2006 ruling in which a majority of the court held that under the New Jersey Constitution same-sex couples are 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 argued 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 create a parallel civil union structure.

The Legislature opted for civil unions and that law included provision for a review commission, which later concluded that civil union partners were not, in fact, enjoying equal treatment, either from government officials or from private businesses and individuals in New Jersey.

In 2012, the Legislature passed a marriage equality bill, but Republican Governor Chris Christie vetoed it, arguing that the issue should be decided by the voters in a referendum. Advocates, led by Garden State Equality, have until January 14, 2014 to override that veto, and a vote was expected after the November election, though the outcome had remained uncertain.

Lambda Legal, which represented the plaintiffs in the 2006 case, attempted to reopen that litigation with the Supreme Court, using the review commission findings. The high court responded that a trial court must first establish a factual record on the claims of unequal treatment. Lambda, representing Garden State Equality and several same-sex couples, then filed the case now clearly headed for victory.

Last year, Judge Jacobson, of the Mercer County Superior Court, denied the state’s motion to dismiss the case and said a trial would go forward. But, after the US Supreme Court struck down the Defense of Marriage Act’s ban on federal recognition of legal same-sex marriages and it quickly became clear that civil unions would not be treated as marriages by the US government, Lambda filed a summary judgment motion arguing that since civil union partners would not win federal recognition they were not enjoying the rights guaranted by the 2006 State Supreme Court ruling.

The Christie administration responded by arguing that it was not the state’s fault or responsibility that the federal government was denying recognition to civil unions. The plaintiffs, the state argued, should be suing the federal government. Jacobson decisively rejected this argument and all others advanced by the state in her September 27 ruling and granted summary judgment to Lambda. She subsequently rejected the state’s motion to stay her ruling to allow Christie to appeal the decision to the New Jersey Supreme Court.

Keeping the state in suspense until the 11th hour, the high court issued its ruling upholding Jacobson’s denial of the stay application on Friday afternoon, the last business day before her marriage order was to take effect on Monday morning.

The grounds for granting or denying a stay and those for making an ultimate ruling on the merits are not the same, but the court’s unanimous decision makes it very unlikely 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 law no longer achieves the purpose that the court had specified back in 2006.

“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,” he wrote, adding, “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 found that staying the decision would be immediately harmful to same-sex couples 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?” Rabner asked. “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.”

Newark Mayor Cory Booker, the state’s US senator-elect, has already announced plans 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, began accepting applications for marriage licenses on Friday morning to comply with the state’s 72-hour waiting period. Since it is now inevitable that same-sex couples will win –– in fact, have already virtually won –– the right to marry in New Jersey, an override vote in the Legislature, which will require some Republicans, could turn into a slam dunk before the end of the year.