ov. Chris Christie’s administration has asked for a stay of a New Jersey judge’s order that the state begin recognizing same-sex marriage on Oct. 21, pending appeal to the state’s highest court.
Deputy Attorney General Jean Reilly on Tuesday also requested that the state Supreme Court take up the state’s appeal, filed a day earlier, on direct certification, bypassing the Appellate Division.
“When novel constitutional issues with highly significant policy considerations, far-reaching implications, and countervailing principles are involved, a lower tribunal should make every effort to facilitate meaningful appellate review,” Reilly said in her brief in Garden State Equality v. Dow.
Superior Court Judge Mary Jacobson gave the plaintiffs seeking the legalization of same-sex marriage until Friday to file a brief in response.
The plaintiffs’ attorney, Lawrence Lustberg, filed his response brief on Friday and asked Jacobson not to grant a stay. The state has until Monday to file a reply.
Jacobson ruled on Sept. 27 that New Jersey must recognize same-sex marriage because partners in civil unions are being denied federal benefits in violation of the state Constitution.
She said the U.S. Supreme Court’s partial voiding of the federal Defense of Marriage Act on June 26 required the mandate without the need of any further fact-finding.
In U.S. v. Windsor, 133 S. Ct. 2875, the Supreme Court struck down that provision of DOMA that said same-sex married couples in states that recognize same-sex marriage could not be denied benefits.
Jacobson said that some federal agencies, in response to Windsor, have decided that rights and benefits will be available only to couples in legally recognized marriages, and not in civil unions — the system New Jersey has — or domestic partnerships.
“And if the trend … continues, plaintiffs will suffer even more, while their opposite-sex New Jersey counterparts continue to receive federal marital benefits for no reason other than the label placed upon their relationships by the State. This unequal treatment requires that New Jersey extend civil marriage to same-sex couples to satisfy the equal protection guarantees of the New Jersey Constitution,” she said.
Jacobson cited the state Supreme Court’s ruling in Lewis v. Harris, 188 N.J. 415 (2006), did not mandate same-sex marriage, but did require that gay and lesbian couples be treated equally.
The Legislature responded with the Civil Union Act, but 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.
Among the points raised in the state’s notice of appeal are that:
• The plaintiffs have the burden of establishing beyond a reasonable doubt that the civil union act runs afoul of the constitution.
• Supreme Court precedent mandates that a court exercise maximum caution when reviewing a grant of summary judgment in a case that has far-reaching consequences and involves significant policy considerations.
• Under Windsor, civil union spouses are entitled to federal marriage benefits.
• The motion in aid of litigants’ rights is not ripe.
• The federal equal protection claim fails because of a lack of legally cognizable state action.
• The state equal protection claim fails because the state constitution controls only the actions of agents of the state.
• The state’s action is rationally based and in accord with the Lewis decision.
Reilly, in her brief requesting a stay, said that if the issue is going to be decided by the judiciary, no action should be taken until a final determination from the Supreme Court.
“[B]oth branches of the Legislature, in enacting the Civil Union Act, decided to retain the name marriage for heterosexual couples. In so doing, the Legislature selected an option that the Supreme Court held to be presumptively constitutional and in accord with the millennia-old societal understanding of marriage,” Reilly said.
“If the Court single-handedly, without guiding precedent and without input from the Supreme Court, reverses this course and overrides the intent of the democratically elected branch, the State will suffer irreparable harm.
“Here … Plaintiffs attempt to use this Court as a fulcrum and the pronouncements of federal agencies as a lever to overturn a State legislative enactment that, properly confined to its own sphere, provides same-sex couples with all State marriage benefits,” she concluded.
Reilly said the state was not seeking an indefinite postponement, but one only until Congress acts to ensure that Windsor applies to couples in civil unions, or the state Supreme Court reaches a decision.
“The public interest demands that the Court at least give the democratic process a chance to play out rather than insisting that, in three weeks, the State take drastic and, some would argue, irrevocable action that either an act of Congress or a decision of the Supreme Court later proves to be unnecessary,” she said.
In his response, Lustberg, of Gibbons in Newark, said same-sex couples are being denied federal benefits and privileges because of the interpretation by a number of federal agencies of Windsor that the ruling only applies to married couples and not to those in civil unions or domestic partnerships.
“[I]n New Jersey, same-sex couples cannot marry and thus are today denied those rights and privileges, though they would have them if only the State did not bar them from marriage and limit them to the status of civil union,” he said.
Lustberg said the Christie administration is arguing that a final Supreme Court determination should be required in any case of “significant public importance” or those cases in which “constitutional issues are in dispute.”
“But that is not, of course, the law,” he said. “Certainly, that this case presents and issue of public importance does not, per se, require the issuance of a stay. Moreover, to allow the state to violate the plaintiffs’ constitutional rights can never be in the public interest.”