The New Jersey Supreme Court on Friday refused to issue a stay while the state attorney general appeals a judge’s ruling that allows same-sex marriage.
The court said the state had not shown a reasonable probability it would succeed on the appeal, nor that it would suffer irreparable harm without a stay. It also found, in balancing relative hardships, that the plaintiffs would suffer more if a stay were granted.
The case will be argued on the merits in January. In the meantime, the court’s order means state and local officials must accept applications by same-sex couples for marriage licenses beginning Oct. 21, the deadline set out in Judge Mary Jacobson’s Sept. 27 decision declaring that N.J. civil-union partners are denied equal access to federal benefits.
On Oct. 11, the Supreme Court took direct certification of the state’s appeal and its request for a stay, which Jacobson had denied a day earlier.
In Friday’s order, the court said it was denying the stay largely for the same reasons Jacobson did.
“The state has advanced a number of arguments, but none of them overcome this reality: Same-sex couples who cannot marry are not treated equally under the law today. The harm to them is real, not abstract or speculative,” the court said.
The court quickly dispatched the state’s arguments that it would suffer irreparable harm without a stay.
The court said the claimed “injury to its sovereign interests whenever one of its democratically enacted laws is declared unconstitutional … begs the ultimate question: if a law is unconstitutional, how is the state harmed by not being able to enforce it?”
The state also contended that “once it grants marriage licenses to even a handful of same-sex couples, it is virtually impossible … to undo that action later.” The state did not explain why, and the court noted that California was able to nullify 4,000 marriage licenses to same-sex couples when its high court so ordered.
The state’s argument of likelihood of success on the merits also failed.
It claimed the plaintiffs “will not be able to overcome the highest presumption of constitutional validity that attaches to statutory enactments,” but the court said the Civil Union Act was presumptively valid so long as it provided full and equal rights and benefits to same-sex couples. “Based on recent events, the [Act] no longer achieves that purpose,” the court said.
As for the state’s argument that the federal government must “defer to the states in matters concerning domestic relations,” the court noted that federal agency rulings are following New Jersey’s rule about who may marry. “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,” the court said.
In balancing the relative hardships to the parties, the court cited ways same-sex couples in New Jersey are denied federal benefits available to married same-sex couples elsewhere.
Civil-union partners cannot receive a number of health-related benefits, leave under the Family and Medical Leave Act if a partner becomes sick or is injured, coverage for health benefits as a “spouse” of a federal employee, or such Medicare benefits as services in a skilled nursing facility for a spouse.
They cannot file joint federal tax returns, be considered spouses for immigration purposes or participate in survivor benefit plans as spouses of active or retired military members.
A “stark example” raised by the plaintiffs underscored the relative hardships: “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 court said.
“[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,” the court concluded.
Gov. Chris Christie said Friday, through spokesman Michael Drewniak, “While the Governor firmly believes that this determination should be made by all the people of the State of New Jersey, he has instructed the Department of Health to cooperate with all municipalities in effectuating the order of the Superior Court under the applicable law.” •