Gov. Chris Christie’s administration filed court papers this week fleshing out its reasoning for seeking direct N.J. Supreme Court review of a judge’s order that the state recognize same-sex marriage, and for a concomitant stay.
Christie argues high court review is warranted given the sea change that the order in Garden State Equality v. Dow would cause if it takes effect on Oct. 21.
A stay is necessary because revoking marriage licenses issued to same-sex couples in the event the order is reversed would be “virtually impossible,” according to a brief filed Monday by Deputy Attorney General Jean Reilly.
“The stay the state seeks is a very short-term one, lasting only until the Supreme Court renders its decision.” Reilly said, calling it “highly likely” the court will grant certification “given both the public importance of the matter and the novel and complex constitutional issues presented.”
The state’s motion for direct certification was filed Oct. 4, but Supreme Court Clerk Mark Neary informed Reilly on Monday that under R. 2:12-2(a) an application for direct certification of an appeal pending in the Appellate Division may be made only after all briefs have been filed. Since the appeal in the same-sex marriage case has not been briefed, the state’s request for direct certification requires a motion for relaxation of the rules. Reilly filed that motion later Monday.
In addition, Reilly said issuing marriage licenses to gay and lesbian couples should be stayed because of the “thorny thicket of complex and novel constitutional issues” the case presents. “New Jersey courts have historically and consistently granted stays when presented with a case of first impression and one of great public importance,” the state said.
The state’s filing of its reply to the plaintiffs’ opposition to a stay renders the issue of a stay ripe for a ruling by Mary Jacobson, the Mercer County assignment judge who ruled on Sept. 27 that the state must recognize same-sex marriage. She said the U.S. Supreme Court’s ruling on June 26 in U.S. v. Windsor, 133 S.Ct. 2675 (2013), partially voiding the federal Defense of Marriage Act, required New Jersey to recognize same-sex marriage because partners in civil unions are being denied federal benefits in violation of the state constitution.
Plaintiffs attorney Lawrence Lustberg supports the motion for direct certification and will file a brief on that subject at some later date.
But he opposes a stay, arguing that same-sex couples are being denied federal benefits and privileges because a number of federal agencies have interpreted the Windsor ruling to apply only to married couples and not to those in civil unions or domestic partnerships.
Reilly says that “given the shifting federal field, plaintiffs’ harm remains speculative.” Because only a “smattering” of federal agencies have expressed positions on whether to extend benefits to civil union spouses “have taken positions that are internally contradictory at best and arbitrary at worst,” she says.
For example, the chief counsel of the Internal Revenue Service issued an opinion that if Illinois treats partners in a civil union the same as married couples, they are not precluded from filing taxes jointly. But later, the IRS reversed course, declaring that civil union partners may not file jointly, even if their relationship is recognized under state law, according to Reilly’s brief.
Reilly argues the plaintiffs’ position “erroneously conflates the preliminary junction standard with that for a stay pending appeal.” Both state and federal courts have held that unsettled questions of constitutional law favor granting a stay pending resolution of the merits on appeal, she says. Furthermore, a stay is warranted “given the substantial change in a basic social institution that this court’s decision effects,” she says.