After spending 12 years litigating to legalize same-sex marriage in New Jersey, it took Lawrence Lustberg just a few months to achieve it once a golden opportunity presented itself.
The U.S. Supreme Court provided the springboard last June when it partially voided the federal Defense of Marriage Act (DOMA), but it was Lustberg’s swift and decisive stroke of advocacy that resulted in gay couples stepping up to the altar less than four months later.
Lustberg won the watershed ruling, in Garden State Equality v. Dow, that partners in civil unions were being denied crucial rights and benefits. The Supreme Court refused to stay the order and the state dropped its appeal, making same-sex marriage the law of the land.
For his leadership, scholarship and exquisite timing in helping bring about one of the most significant rulings in state history, Lustberg is the Law Journal‘s 2013 Lawyer of the Year.
Lustberg—a partner at Gibbons in Newark and longtime director of the firm’s John J. Gibbons Fellowship in Public Interest & Constitutional Law—was first approached in 2001 by David Buckel of Lambda Legal, a New York-based, gay-rights organization.
Lambda needed local counsel in a suit claiming that denial of marriage licenses was infringing on the rights of gay couples, who at the time could only enter domestic partnerships. Garden State Equality, another gay-rights group, also was involved.
The case eventually reached the Supreme Court and produced the seminal ruling in Lewis v. Harris, 188 N.J. 415 (2006), that homosexual couples must have the same financial and social rights and benefits as heterosexuals.
The court was unanimous on that front but, by a 4-3 vote, stopped short of declaring gay couples constitutionally entitled to marry. The court gave the Legislature the choice of amending the marriage laws or adopting a scheme that would give same-sex couples equivalent rights. The Legislature responded with the Civil Union Act.
Lustberg took a lead role in cases that followed Lewis, such as Quarto v. Adams, 395 N.J. Super. 502 (2007), where the Superior Court Appellate Division ruled that same-sex couples didn’t have the right to file joint tax returns until the Civil Union Act took effect.
Lustberg also argued the plaintiff’s case in Hammond v. Hammond, where Mercer County Superior Court Judge Mary Jacobson ruled that principles of comity with Canadian law required the court to recognize a gay couple’s right to divorce.
Lustberg, in concert with Lambda and Garden State Equality, renewed the push for marriage rights after the state’s Civil Union Commission issued a February 2008 report finding that the Civil Union Act amounted to second-class treatment of gay couples because of difficulties with insurance, benefits and day-to-day issues such as hospital visitation privileges.
They returned to the Supreme Court, claiming that Lewis was not being upheld, but the court said a new suit must be filed in Superior Court. That was Garden State Equality v. Dow, filed in 2011, which claimed violation of equal protection rights under the state and federal constitutions.
Discovery trudged forward for about a year and a half before the U.S. Supreme Court’s critical ruling in U.S. v. Windsor, 133 S. Ct. 2675, on June 26. The 5-4 majority dispatched a DOMA provision defining marriage as between one man and one woman, and ruled that federal benefits must be afforded to same-sex couples in states that allow them to marry. Government agencies began decreeing that the decision did not apply to couples in civil unions.
Before Windsor, the Garden State Equality plaintiffs had asserted the denial-of-benefits issue, but it didn’t have the same weight.
“We had raised it, but…we were really not in a good position,” Lustberg says. “Because DOMA existed…we couldn’t say that our same-sex couples, who had civil unions, were being treated any differently than same-sex couples who could marry in terms of federal benefits, because until DOMA was invalidated, that wasn’t the case.”
“And then Windsor comes along,” Lustberg says. “It’s a gaping chasm. It’s not a window, it’s not a door—it’s everything.”
Lewis stood for the notion that marriage is “just a word,” he adds. “Well, after Windsor, it’s no longer just a word—it’s a status that is the gatekeeper for 1,138 separate federal benefits.”
From there, the battle plan was simple, at least in theory: Lewis mandated equal rights, and Windsor effectively differentiated marriages from civil unions, so couples relegated to civil unions weren’t enjoying the same benefits as those allowed to marry.
“Once Windsor was decided, the argument in this case…was hard to make in the sense that it was a lot of work, but it was really—from a theoretical or intellectual perspective—not much more complicated than one plus one equals two,” Lustberg says.
Lustberg saw the need to move quickly with a summary judgment motion, diverting attention and resources from the ongoing trial preparation.
He initiated a conference call with the judge—again Jacobson in Mercer County—and by July 3, just a week after the Windsor ruling, the plaintiffs’ brief was filed.
“My view at the time was—and it’s something that I stuck to even when people had their reservations about it—that we needed to move really quickly, because people were being denied benefits right then,” Lustberg says.
“The key tactical decision that we made was not to brief this at a leisurely pace,” which “enabled us to make the point with our feet as opposed to just saying it, that people’s lives were being affected day to day,” he adds.
Jacobson gave the state a month to respond, heard arguments on Aug. 15, and on Sept. 27 issued a 76-page opinion granting the plaintiffs’ motion.
The New Jersey Supreme Court agreed to a direct review of the decision and on Oct. 18 refused to stay it. Gov. Chris Christie dropped his appeal on Oct. 21, and the first same-sex marriages took place soon after.
Since then, same-sex marriage proponents have been struggling on the legislative front over a bill that would codify Garden State Equality. The bill has been derailed by disagreement over a provision that allows clergy to refuse to perform the marriage rite on religious grounds.
The sponsors of the measure, which was to have been voted on Dec. 18 by the Senate Judiciary Committee, say the exemption does no more than reflect existing First Amendment law. But detractors worry that the exemption opens the door for wider ones that could be used to undermine marriage equality.
Legislation will come in due time, and same-sex marriage rights are not in any jeopardy in the meantime, Lustberg says, adding that religious institutions have a constitutional right to refuse to perform same-sex marriages.
Hayley Gorenberg, Lambda Legal’s deputy legal director and lead counsel in the case, says the summary judgment motion was something of a calculated risk because trial preparation was in high gear at the time, including expert discovery.
“Windsor was certainly a turning point, but Larry has been involved in the marriage equality work…from the very beginning,” she says. “He’s been top-notch throughout. …He’s a very good strategic thinker.”
Making Pro Bono a Career
Lustberg’s involvement with Lewis, Garden State Equality and other marriage-equality cases was natural given that he’s left his mark on numerous watershed cases.
That’s due in large part to his role in the John J. Gibbons fellowship. The program, and the firm itself, bears the name of the retired chief judge of the U.S. Court of Appeals for the Third Circuit.
Lustberg, who earned his undergraduate and law degrees from Harvard University, met Gibbons while clerking for U.S. District Judge Lee Sarokin in the early 1980s, when Sarokin occasionally sat by designation in the Third Circuit.
In 1985, Lustberg began a five-year stint as an assistant federal public defender in New Jersey and thought he would continue on that career track.
In 1990, Gibbons—who had left the bench and become special counsel to the firm, then Crummy, Del Deo, Dolan, Griffinger & Vecchione—encouraged Lustberg to apply for the new fellowship. That September, Lustberg was hired and became the first Gibbons fellow.
It didn’t take long for Lustberg to persuade firm leadership to appoint him director of the program—and to launch a white-collar criminal defense practice, which he also chairs.
Lustberg calls it a dream job. The program, which staffs full-time associates, takes on critical civil rights matters, such as death penalty cases, often in tandem with nonprofit groups.
The firm directs considerable resources to the public-interest litigation, and the marriage-equality cases were a prime example. In the 12 years since Lustberg was brought on in Lewis, 37 Gibbons attorneys have logged 5,487.2 pro bono hours—services valued at $1.74 million, according to Lustberg. That includes the 852.4 hours contributed by him.
Garden State Equality was not the only high-profile case handled by Lustberg in 2013.
Representing an amicus, he argued for the state Supreme Court’s February ruling in DYFS v. A.L., 213 N.J. 1. The court said parental rights shouldn’t be terminated, in the case of a mother who used cocaine during pregnancy, without evidence of harm to the child.
In In re Kendall, 712 F.3d 814 (3d Cir. 2013), Lustberg represented several local chapters of the American Civil Liberties Union in arguing that judges are protected by the First Amendment when they deliver opinions.
In April, a Third Circuit panel agreed and struck criminal contempt charges against Virgin Islands Superior Court Judge Leon Kendall, who had criticized the Supreme Court of the Virgin Islands in a written opinion.
Lustberg argued on behalf of the Association of Criminal Defense Lawyers of New Jersey as amicus in State v. Scoles, 214 N.J. 236. In its June decision, the Supreme Court laid out a process for defense lawyers to review evidence against clients charged with child pornography-related offenses.
Lustberg also handles some business litigation. He helped void a New Jersey statute providing incentives for power plant construction. The 2011 Long Term Capacity Pilot Project Act is preempted by federal law, U.S. District Judge Peter Sheridan held in an October ruling, PPL EnergyPlus v. Hanna.
Lustberg serves as assisting counsel to former prosecutor and defense attorney Paul Bergrin, who was convicted by a federal jury in March of witness murder, racketeering and other crimes and was sentenced to life in prison in September. Lustberg is briefing appellate issues.
In 2013 and throughout his career, Lustberg has had his share of victories. But the Gibbons program’s mission to take on cutting-edge cases puts him in a unique position—actively seeking out causes where there’s a very good chance of losing.
It’s all in the name of moving the law forward, Lustberg says.
“We cite Marbury v. Madison and mean it,” he says. “What we do is, we train people to become the world’s best public interest lawyers.”■