A New Jersey judge heard arguments Thursday on whether the U.S. Supreme Court's invalidation of part of the Defense of Marriage Act requires legalizing same-sex marriage in the state.
But despite the plaint that New Jersey's Civil Union Act deprives gay couples of federal benefits as a matter of law, Mercer County Assignment Judge Mary Jacobson focused on whether summary judgment was premature given the lack of a factual record.
At one point, she even suggested that the plaintiffs might be better off pursuing a remedy in federal court or perhaps in the state Legislature.
Lawrence Lustberg, representing Garden State Equality, an advocacy group, argued that civil unions are not considered as marriages by the federal government and, therefore, the state's decision to not recognize same-sex marriage will deprive his clients of thousands of federal benefits.
"Their relegation to civil unions violates their right to equal protection under the law," said Lustberg, of Gibbons in Newark. "Federal benefits depend upon marriage."
Jacobson said she was still bound by the state Supreme Court's ruling in Lewis v. Harris, 188 N.J. 415 (2006). There, the court refused to order the legalization of same-sex marriage, but mandated that the Legislature enact some type of statutory scheme that guaranteed gay couples the same rights as heterosexual couples. The Legislature responded by enacting the Civil Unions Act.
After a state-appointed commission created to monitor the law'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, where a full factual record could be developed. The plaintiffs responded with the current suit, Garden State Equality v. Dow, MER-L-1729-11.
Lustberg said the landscape was changed by the June ruling in U.S. v. Windsor, 12-307, which said federal benefits could not be denied to gay couples in states where same-sex marriage is legal.
"You didn't have the clean questions of law you have today with Windsor," he said, adding that requiring the parties to continue with discovery and go through with a trial would be a "tremendous waste of the parties' resources."
"There are no longer issues of material fact," said Lustberg.
He pointed to several recent post-Windsor statements from the federal Office of Personnel Management, the State Department and the Defense Department that emphasized that federal benefits will only be conferred on married couples. None of those statements, he said, mentioned civil unions.
Jacobson noted that the plaintiffs have not identified any partner in a civil union in New Jersey that has been denied federal benefits.
"We could amend the complaint and create a certification," Lustberg said. "But that would be a waste of time. That would be wrong. The plaintiffs are suffering on-going harm every single day."
The state, Jacobson said, is arguing that the plaintiffs have the wrong defendant and that if federal benefits are denied to partners in civil unions, any remedy lies should come from the federal courts. "Why don't you go to federal court?" she asked.
"The origin of the problem lies with the state, which created a separate and unequal system," Lustberg said.
Windsor, he said, makes no statement that civil unions are the equivalent of marriage. "Marriage is what matters and [Windsor] says so in very clear language. The fact that it is not marriage matters a great deal."
Jacobson then asked whether the remedy should be with the Legislature "and the democratic process."
"The Legislature chose civil unions," Lustberg said. He pointed out that the Legislature did vote to legalize same-sex marriage last year, but Gov. Chris Christie vetoed the measure.
"Rights and benefits continue to be denied," he said. "There is no reason to wait for the democratic process, which may take years to play out. I wish the democratic process would do what's right."
When his turn came, Assistant Attorney General Kevin Jespersen argued that civil unions are the legal equivalent of marriage and that a state judge has no authority to order remedies for any as-yet-undetermined improper actions taken by federal agencies.
Jespersen said there is no violation of the state Constitution with the current system of civil unions because same-sex couples are granted all the same rights and privileges. Couples in civil unions are the "equivalent of spouses," he said. "The only distinction is the designation of the name."
Jacobson asked how the state could get around Justice Anthony Kennedy's statement in the majority opinion in Windsor that it is "confined to those lawful marriages."
Jespersen said the majority recognized that it could only require that same-sex couples could be guaranteed federal benefits in those states that have legally recognized the rights of gay couples and that the federal government could not order states to do so.
"New Jersey has decided to extend the same rights to same-sex couples," he said.
Jacobson then referred to the statements from various federal agencies that have not included the words "civil unions" when discussing what benefits will be offered to same-sex couples. Those statements, she said, suggest that only "marriage" will be recognized.
"The state cannot order a remedy for federal misconduct," Jespersen said.
There also is an issue of ripeness, he said, because no federal agency has made a final determination about benefits.
"What [the plaintiffs are alleging] may be true, but it hasn't happened yet," Jespersen said.
Jacobson asked why same-sex couples should be required to wait before their rights to federal benefits are violated because they cannot say they are "married."
Windsor is less than two months old and there has been no indication that any same-sex couples have suffered because of any action by any federal agency, Jespersen said.
Ordering the legalization of same-sex marriage now, he said, would force the state into "stepping into a fast-flowing stream where footing is very uncertain."
In rebuttal, Lustberg told Jacobson that she does have the power to act.
"You have the authority to say that the state is wrong to allow federal agencies to act improperly," he said.
Jacobson said no decision should be expected until September at the earliest and she gave both sides until Aug. 28 to file supplemental briefs.