Gov. Chris Christie's administration is urging judicial restraint in gauging the effect in New Jersey of the U.S. Supreme Court's partial voiding of the Defense of Marriage Act.
A Mercer County judge is soon to hear a motion for summary judgment declaring that the June 26 ruling in Windsor v. U.S., 133 S. Ct. 2675 — requiring that the full range of federal benefits enjoyed by heterosexual married couples be accorded to same-sex couples under the Fourteenth Amendment — necessitates legalizing gay marriage.
In a brief filed Aug. 2, Deputy Attorney General Jean Reilly argues that advocates for that result are giving an "incorrect" and "stilted" reading to Windsor. She says it means only that same-sex couples — by virtue of marriage or civil unions — cannot be denied federal benefits.
New Jersey, she says, already makes that guarantee. Under the Civil Union Act, N.J.S.A. 37:1-28 to -36, enacted in response to Lewis v. Harris, 188 N.J. 415 (2006), "civil union couples are considered spouses and have all the same rights as married couples," Reilly says. "Because of the breadth and comprehensiveness of this State definition, persons in a civil union and their families are entitled to the plethora of federal benefits that the Windsor Court recognizes are contingent upon 'spousal status.'"
If someone in a civil union believes he or she is being denied federal benefits, then his or her redress lies with the federal courts, not the state, she says.
Reilly urges Superior Court Judge Mary Jacobson to look beyond the "label" of marriage and instead look to the substance of the Civil Union Act.
"Here, New Jersey deems civil unions to be the equivalent of marriage, and it is that equivalence, not the label, that is dispositive in entitling civil union partners to all marriage benefits," Reilly says.
The U.S. Supreme Court's ruling in Windsor did nothing to invalidate the state Supreme Court's ruling in Lewis, she says. "To the contrary, Windsor, when evaluating plaintiffs' equal protection claim, indicted federal action and left intact states' historic and exclusive prerogative to define domestic relations. This staunch theme of state sovereignty strongly counsels that states that retain the traditional definition of marriage are entitled to judicial respect for their decision," she says.
The plaintiffs in the present case Garden State Equality v. Dow, MER-L-1729-11, claim civil unions are not fulfilling the mandate of total equality demanded by the state Supreme Court in Lewis. Instead of waiting for the trial, the plaintiffs opted to move for summary judgment.
Reilly says the remedy is premature, noting that federal agencies are still dealing with the impact of Windsor and may be doing so for months. "The plaintiffs' motion is therefore unripe, and the court should reject plaintiffs' invitation to rule precipitously," she says, urging that discovery continue.
The Legislature last year passed a law legalizing same-sex marriage, but Christie vetoed it, saying the issue should be put to a ballot referendum. That move was rejected by same-sex marriage proponents.
In July, same-sex marriage proponents said they were launching a campaign aimed at overturning Christie's veto by January.
Reilly, quoting Lewis, says it would be wrong for the court to move as quickly as the plaintiffs want.
"Indeed, to 'alter' the traditional definition of marriage 'would render a profound change in the public consciousness of a social institute of ancient origin,'" she says.
The plaintiffs' lawyer, Lawrence Lustberg, of Gibbons in Newark, says, "Nothing that the state has said in its brief undermines our confidence in the legal position set forth in our motion. Indeed, the state's brief confirms and our reply will further demonstrate that there remain significant federal benefits that are denied same-sex couples in New Jersey because they are not permitted to marry, but are instead relegated to civil union. We believe that the court is therefore compelled, by the Supreme Court's decision in Lewis v. Harris, to require the state to allow same-sex couples to marry."
Jacobson has scheduled oral arguments for Aug. 15.