Garden State Equality v. Dow, L-1729-11; Law Division, Mercer County; opinion by Jacobsen, A.J.S.C.; decided October 10, 2013; approved for publication November 22, 2013. DDS No. 10-3-2042 [25 pp.]

Defendant state of New Jersey filed a notice of appeal and a motion for a stay of the court’s order granting plaintiffs’ motion for summary judgment and ordering the state to permit same-sex couples, who otherwise satisfy the requirements to enter into a civil marriage, to marry as of Oct. 21, 2013.

Held: Because enforcing the order will not cause the state to suffer irreparable harm, the state does not have a likelihood of succeeding on appeal, and a balancing of the equities heavily favors rejecting the motion for a stay, plaintiffs would suffer hardships of constitutional magnitude if the stay were to be issued, and there is no support for the proposition that, in the absence of any of the other factors informing whether to grant a motion for a stay, such a motion should be granted simply because a matter of great public interest is involved, the state has not met its burden of showing that it is entitled to a stay of the order.

Pursuant to Crowe v. DeGioia, 90 N.J. 126 (1982), a stay application should be granted only when (1) such relief is necessary to prevent irreparable harm; (2) the applicant presents a settled underlying claim and makes a showing of reasonable probability of success on the merits; and (3) a balancing of the parties’ relative hardships favors granting injunctive relief because greater harm would occur if a stay is not granted than if it is. Where the matter involves an issue of significant public importance, the court must also consider the public interest.

The state argues that, without a stay, it will suffer irreparable harm since any time a state is enjoined from effectuating duly enacted statutes, it suffers a form of irreparable injury.

The court says the state ignores the largely abstract nature of its alleged harm, which pales in comparison to the concrete harm caused to plaintiffs by their current ineligibility for many federal marital benefits and the significant litigation burden they would have to shoulder to challenge federal denial of marital benefits to civil-union couples.

Moreover, the court notes that the order did not strike down a statute and did not enjoin the state from enforcing an existing statute. It simply directs the state to allow same-sex couples to marry. Further, the state has cited no New Jersey case to support the proposition that enjoining a state from enforcing a statute is per se irreparable harm. The argument that the state will suffer irreparable harm from rectifying ongoing violations of plaintiffs’ civil rights under the N.J. Constitution is untenable.

Also rejected is the state’s claim that it will suffer irreparable harm if marriage licenses are given out to same-sex couples. The California experience teaches that marriage can be extended to same-sex couples and then removed without dire consequences to the state.

The court concludes that the harm the state alleges cannot justify depriving same-sex couples equal access to federal marital benefits while appellate remedies are sought.

As to whether the state’s asserted underlying legal right is “settled,” it argues only that the case involves an unsettled New Jersey constitutional issue that should be decided by the N.J. Supreme Court. However, Crowe requires that the applicant seeking injunctive relief show that its legal right is settled. The court says the fact that unsettled constitutional issues are involved is a factor that weighs in favor of a stay, but it is not the determinative factor.

As to a reasonable probability of success on the merits, the court says the state relies largely on its arguments in the briefs submitted in opposition to plaintiffs’ motion for summary judgment, without explaining why an appellate court would disagree with its resolution of those issues.

The court next says that the presumption of constitutional validity that attaches to statutory enactments is irrelevant since the court was never asked to strike down an enacted statute. Its order simply directs the state to permit same-sex marriage, leaving the Legislature to choose whether to maintain or eliminate the Civil Union Act.

As to the parties’ relative hardships, the court says that if a stay were to be issued, plaintiffs would continue to suffer violations of their equal protection rights based on the label put on their relationship by the state until appellate review was completed. These inequalities violate Lewis and are of constitutional magnitude and it is difficult—if not impossible—to see how they can properly be remedied through a recovery of money damages in the future.

The court says the state persists in denying its responsibility for the current predicament of New Jersey civil-union couples. It argues that Windsor requires the federal government to defer to its definitions of “civil union” and “marriage” and thus to extend benefits to same-sex civil-union couples and that the federal government is not respecting its sovereignty. However, it has shown no interest in challenging the federal agencies’ interpretations of Windsor. Since the state’s sovereignty appears not to be important enough for the state to attempt to protect it from federal incursion, its invocation of sovereignty as a basis for granting a stay is given short shrift.

The court also says the litigation burden on New Jersey civil-union couples wanting to challenge their ineligibility for federal marital benefits is a glaring inequality to which the state has no answer.

Lastly, the court rejects the state’s argument that the stay should be issued because this case involves constitutional issues that affect the public interest. It says that where, as here, none of the traditional factors favors the state’s application, the fact that an issue of public concern was decided is, by itself, insufficient to support granting the motion for a stay.

Further, there is no “public interest” in depriving a class of New Jersey residents their constitutional rights while appellate review is pursued. The fact that plaintiffs would continue to suffer violations of their constitutional rights and irreparable injury through ongoing ineligibility for federal marital benefits while the stay is effective weighs heavily in favor of rejecting the state’s motion for a stay.

Finding that the state has not met its burden of showing that it is entitled to a stay of the order, the court denies the motion.

For plaintiffs—Gibbons (Lawrence S. Lustberg and Benjamin Yaster on the brief), and Hayley J. Gorenberg, of the N.Y. bar, admitted pro hac vice (Lambda Legal). For defendants—John J. Hoffman, Acting Attorney General (Jean P. Reilly, Deputy Attorney General, on the brief).