Same-sex-marriage advocates filed motion papers Wednesday asserting that the U.S. Supreme Court’s striking down of a key part of the Defense of Marriage Act clears the way for recognizing the right in New Jersey.
Lambda Legal, the nonprofit organization that brought the case leading to the 2006 state Supreme Court mandate of equality for gay couples, seeks summary judgment declaring that New Jersey’s restrictions on marriage licenses are unconstitutional.
The plaintiffs argue that the U.S. court’s June 26 ruling in U.S. v. Windsor, 12-307, requires that the full range of federal benefits enjoyed by heterosexual married couples be accorded to gays under the Fourteenth Amendment.
“But for Plaintiffs and other same-sex couples in New Jersey who may access only civil union, full federal benefits are not available,” says their brief in Garden State Equality v. Dow, MER-L-1729-11. “[B]y relegating same-sex couples … to civil union, the State denies them equal rights and benefits.”
In an order, Superior Court Judge Mary Jacobson said the state must reply to the motion by Aug. 2. Oral arguments have been scheduled for Aug. 15.
The suit was filed in June 2011 by Garden State Equality, which advocates for lesbian, gay, bisexual, and transgender civil rights, and by seven same-sex couples and 10 of their children residing in New Jersey.
Mercer County Assignment Judge Linda Feinberg, now retired, dismissed the suit but granted a motion for reconsideration after the U.S. Court of Appeals for the Ninth Circuit ruled in Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012), that California’s Proposition 8, which banned same-sex marriage in that state, violated the Fourteenth Amendment.
Feinberg’s reinstatement of the case came four days after Gov. Chris Christie vetoed legislation that would have allowed for same-sex marriage in New Jersey. He said the question should be put to a popular vote and has vowed to veto the legislation again.
The plaintiffs say the Civil Union Act, passed in response to the historic ruling in Lewis v. Harris, 188 N.J. 415 (2006), has failed to afford same-sex couples the same rights and responsibilities as heterosexual married couples.
In Lewis, the court told the Legislature that if it chose not to legalize same-sex marriage, it must enact some form of statutory scheme that granted same-sex couples equal rights.
After a state-appointed commission created to monitor the Civil Union Act’s progress found that it came up short in that regard, the Lewis plaintiffs filed a motion in aid of litigants’ rights, but the Supreme Court said the complaint should first be heard in Superior Court.
The Garden State Equality lawsuit was filed in response.
Plaintiffs’ lawyer Lawrence Lustberg, of Gibbons in Newark, writes in their brief that a trial is unnecessary because there are no material facts in dispute.
“With federal benefits available to those who are validly married and recognized as such, the discrimination manifest in relegating same-sex couples to civil union establishes the clearest possible violation of the state constitutional guarantee articulated in Lewis,” he says.
“The State discriminates against couples in civil unions by denying them the right to marry, and through that governmental action, bars them from the gateway to numerous federal benefits and privileges discussed in Windsor.
“And it does so without a rational basis, given its commitment, expressed in both judicial and legislative determinations, to treat same- and different-sex couples equally,” Lustberg says.
He cites a lengthy list of federal benefits — from tax code considerations and pensions to access to welfare and pension plans — that are available only to married couples and not to couples in civil unions.
“In sum, New Jersey’s refusal to allow same-sex couples to marry should be found unconstitutional and Plaintiffs here, and all other same-sex couples in New Jersey, should be allowed to marry and thus to realize the federal benefits that today flow only to married couples, as well as the dignity that goes along with being treated equally,” he says.
Though moving for summary judgment, the plaintiffs say that if the case goes to trial, they are “prepared to demonstrate that New Jersey’s exclusion of same-sex couples from the institution of civil marriage and relegation to the inferior status of civil union violates the equal protection guarantees of both the State and Federal Constitutions by subjecting them to unequal treatment and lack of recognition in public accommodation and civil life; providing unequal workplace benefits and family law protections; saddling them with disparate and unfair financial burdens; triggering discrimination by private individuals; and imposing stigma, psychological harm, and dignity harm.”
Lee Moore, a spokesman for the Attorney General’s Office, declines to comment.
At present, 13 states and the District of Columbia allow same-sex marriage.