[Editor's Note: This post was written on October 18th, but posted on October 19th. Every time I say "Today" it refers to the date of writing rather than publication.]
Today the New Jersey Supreme Court handed down an opinion denying a stay in a case called Garden State Equality v. Dow. This is the first major state high court decision to come down following the US Supreme Court’s Windsor decision. Not to toot my own horn, but for months I had been telling anyone who would listen exactly how Garden State Equality would be decided and that marriage equality was inevitable. Even though the case is technically ongoing, today’s decision proves me right.
To understand Garden State Equality, one must first go back to 2006 and a New Jersey Supreme Court case called Lewis v. Harris, the first time the Court considered marriage equality. Lewis was both a landmark and a disappointment. It was a disappointment because the Court, in a 4-3 split, held that although the New Jersey State Constitution required that same-sex couples be treated equal to heterosexual couples, it was the Legislature’s discretion to determine whether that meant marriages or civil unions. The Legislature opted for the latter. Yet Lewis was also a landmark because for the first time every Justice on a state high court agreed that same-sex couples deserved equal treatment. The “dissenters” would have gone further than the majority and mandated full marriage equality.
Lewis, for its flaws, laid the groundwork for future victory. Civil unions are okay so long as couples are treated equally, but if that were not the case, then the state had to offer marriage. Almost immediately after Lewis was handed down, LGBT rights groups operating in New Jersey (Garden State Equality, Lambda Legal, etc.) started gathering evidence to prove that civil unions were not equal. Simultaneously, LGBT organizations lobbied the Legislature to enact a real marriage equality law–first unsuccessfully in the waning days of the Corzine regime and then successfully during this current term, but vetoed by the Governor Chris Christie. This meant that there were two options left for LGBT rights groups: (1) get enough votes to overturn Christie’s veto (currently ongoing); or (2) convince the New Jersey Supreme Court that civil unions are inherently unequal (or to quote Justice Ruth Bader Ginsburg, “Skim-Milk Marriage“). Both of those paths however, would take a lot of time and effort, and neither was guaranteed.
And then came Windsor.
In the near future, I hope to write two posts about the recent gains of the gay rights movement. The first is about the almost unrealistic nationwide and worldwide progress made in the past year. The second is specifically about United States v. Windsor, a case that I would argue is not only the most important case in the history of the American LGBT rights movement, but also the most important American civil rights case since Brown v. Board of Education. The implications of Windsor have only begun to be felt, but its impact has already been tremendous. The decision in New Jersey today (and others that will follow in state and federal courts over the next couple of years) is solely because of Windsor. It is not a stretch to say that Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, Elena Kagan, and above all Anthony Kennedy are five of the six people most directly responsible for today’s victory.
The sixth person most directly responsible is Barack Obama. When Windsor was handed down, Obama ordered all federal agencies to fully comply. Every same-sex married couple is now treated equally in terms of federal benefits so long as the marriage is valid, i.e., recognized by the state where the marriage took place. Social security, Medicare, immigration, military and veterans benefits, family medical leave, federal estate tax, joint filing, health insurance for spouses of federal employees–the list of federal benefits goes on and on.
President Obama also made a tremendous and specific impact in New Jersey because he instructed that federal benefits applied only to married couples, not those partnered in civil unions. Those of us who understood what he was doing rejoiced. Effectively, he told the courts that in terms of marriage he would not allow or accept “separate but equal.”* Marriage is marriage and nothing else is adequate for federal purposes.**
When Garden State Equality came before Judge Mary Jacobson in the New Jersey Superior Court this summer, the legal team for the plaintiffs filed a motion for summary judgment. Basically, this means that (in a civil trial) one party in the case believes the law and the facts are so overwhelmingly on his/her/their side as to render a trial completely unnecessary. In Garden State Equality, the plaintiffs argued that the lack of federal benefits to partners in civil unions meant that they would be treated patently unequal and only by offering full marriage equality could New Jersey correct the harm. Although everyone files motions for summary judgment, granting them, especially in such major cases, is a rarity. It is practically an invitation for an appellate court to overturn to overturn a trial court, something trial court judges hate. (Also, judges tend to believe that everyone has a right to argue their day in court.)
Garden State Equality is as close to a perfect case as you can get for granting a motion for summary judgment. Because of the Lewis demand for equality, the Windsor requirement that the federal government recognize married same-sex couples,*** and the Obama Administration’s refusal to treat marriages and civil unions equally, it was unthinkable that this case could result in anything other than a win for the plaintiffs. On September 27, 2013, Judge Jacobson granted the motion for summary judgment and held that New Jersey had to offer marriage equality as of October 21. The Christie Administration asked for a stay in judgment–asked the court to put the decision on hold until the case worked its way through the appellate courts. Judge Jacobson refused. Rather than appeal to the next level, the Christie Administration went straight to the top and appealed directly to the State Supreme Court who agreed to hear the case in January. The Christie Administration also asked the Court for an emergency stay in judgement. It was not so unusual–or unreasonable–a request. (For example, in the Prop 8 case, the Court of Appeals put a stay on the trial court’s decision to strike down the law so that it could be litigated up to the US Supreme Court.)
Today the State Supreme Court came down with a ruling, and it was a doozy. The Court denied the Christie Administration’s request for a stay, which means that same-sex marriages start at 12:01 a.m on October 21 (and there will be City Halls open at 12:01 a.m.) Frankly, I was a bit surprised; granting a stay is almost routine–again, especially in such a major case with such big implications. What is more amazing though is that the judicial opinion written by Chief Justice Stuart Rabner, and joined in full by the entire Court, was a decision on the merits of the case, which is almost never done when deciding whether to grant a stay. Moreover, the Court all but said how it was planning to rule in January: “[T]he State has not shown a reasonable probability that it will succeed on the merits.” In other words, although the case is not officially over, it’s over.
Everyone knows that the case is over. Even Chris Christie, rather than fume and rage, has simply said that he disagrees with the decision but has ordered state officials to comply. The outcome was inevitable. Windsor made it so, and sooner rather than later all states will have marriage equality.
[Postscript: On Monday October 21, Governor Christie advised the State to withdraw its appeal. It is theoretically possible but doubtful that a third-party will be allowed to intervene. Therefore, most likely there will not be an oral argument in January, and undoubtedly marriage equality is now the law of New Jersey from here on out. ]
* This was not a surprising position from the President. During the Windsor/Prop 8 arguments, the Justice Department urged the Supreme Court to rule that civil union states must adopt marriage–the so-called “Eight State Solution” (which will dwindle to six as of Monday). Allegedly, the President was involved in crafting the Eight-State Solution.
** There was an argument put forward that civil unions are a form a marriage and the federal government should recognize them as such. It’s a rational argument legally but deeply problematic in real world application. Among those problems is, who would defend civil unions before a court? A Democrat-led state government won’t do it because they favor marriage equality (the same is true for the vast majority of same-sex couples), and a Republican-led state government won’t do it because that would be a defense of the rights of gays and lesbians. Although the Christie Administration did argue this position before the New Jersey courts, those courts cannot force the federal government to comply with New Jersey law. Had the Christie Administration sued the federal government in federal court to demand recognition of civil unions, then I am certain the state case would have been put on hold until the federal case was decided. It’s a moot point now for New Jersey, but I suspect other courts looking at civil union claims will see that New Jersey’s Supreme Court made the distinction and will subsequently follow.
*** In Windsor, the Supreme Court did not address civil unions because that was not part of the case. Nevertheless, reading between the lines of the majority opinion, one gets the sense that the majority, if faced with the question, would not find civil unions equal to marriage.