Lawyers on both sides have submitted their final briefs in a New Jersey case that may decide whether the U.S. Supreme Court's partial voiding of the Defense of Marriage Act mandates legalizing of same-sex marriage in the state.
Lawrence Lustberg, the attorney representing same-sex couples, told Mercer County Assignment Judge Mary Jacobson that the issue is ripe for summary judgment, arguing "there is no genuine issue of material fact as to whether same- and different-sex couples in new Jersey receive the same rights: they do not." He added that "withholding judgment on their behalf would subject Plaintiffs and, indeed, all same-sex couples in New Jersey to not only real but unnecessary hardship."
Deputy Attorney General Jean Reilly urged Jacobson to hold off, arguing there is no direct evidence as of yet that the plaintiffs have suffered harm and no constitutional authority for the state courts to act.
"The Court should reject Plaintiffs' invitation to mistake their personal preference for constitutional compulsion," she said. "For this Court to hold otherwise and to penalize the Legislature by voiding its enactment on the basis of the vicissitudes of third-party sovereigns over whom the Legislature has no control would be to usurp the legislative prerogative to set policy."
The plaintiffs in Garden State Equality v. Dow are asking Jacobson to grant their motion for summary judgment and declare same-sex marriage legal in New Jersey based on the U.S. Supreme Court's June 26 ruling in U.S. v. Windsor. The court struck down as unconstitutional that portion of the Defense of Marriage Act that denied federal benefits to same-sex married couples in states that have recognized same-sex marriage.
The plaintiffs argue that civil unions are not being recognized by the federal government as marriages and, therefore, they are being denied federal benefits because of the state's unconstitutionally denying them the right to marry.
The administration of Gov. Chris Christie, who has vetoed legislation that would have legalized same-sex marriage, is arguing that civil unions will be recognized as being equal to marriage and that the plaintiffs will not be denied any rights or benefits.
However Jacobson rules, it will be the state Supreme Court that ultimately decides the issue unless the Legislature overrides Christie's veto, which is considered unlikely.
In his brief, Lustberg cites a series of letter opinions from federal agencies ranging from the Office of Personnel Management to the Department of Defense which state that in preparing to enforce the court's ruling in Windsor, civil unions or other forms of domestic partnerships will not be considered as marriages.
Lustberg also challenged the state's argument that the plaintiffs have no standing because no rights under the New Jersey Constitution are being denied to them.
"That desire to be married, and thereby receive economic benefits and other rights and privileges, make Plaintiffs far more than 'total strangers or casual interlopers,'" he said, quoting New Jersey State Chamber of Commerce v. New Jersey Election Law Enforcement Commission, 82 N.J. 57 (1980).
Reilly, in her brief, said any action by the courts would be premature and noted that Congress already has introduced a number of measures that would ensure that civil unions are recognized by the federal government as being equal to marriage. One of those bills, the Federal Benefits Equality Act, HB-2834, is being sponsored by U.S. Rep. Rush Holt, D-NJ.
She also argued that no federal agencies are final as of yet. Any speculation about how an agency would respond to a request for benefits from a partner in a civil union at this point is "sheer conjecture," Reilly said.
"Congress is engaged regarding the extension of federal benefits to civil union partners, and this Court should not outpace the democratic process," she said. •