July 8, 2013
Last week, Lambda Legal filed a motion for summary judgment in a two-year-old marriage equality case in New Jersey state court, specifically citing the Supreme Court’s recent decision that the Defense of Marriage Act is unconstitutional as a basis for invalidating New Jersey’s civil unions system.
Lambda’s brief is significant and noteworthy, not only because it could well lead to another state providing equal marriage rights to same-sex couples but also because it establishes a framework for future court battles in other states across the U.S.
The history of New Jersey’s push for marriage equality
First, some background on the legal recognition provided to same-sex couples in New Jersey. In a 2006 decision, the New Jersey Supreme Court ruled in a case called Lewis v. Harris that the unequal legal treatment of same-sex couples in the state violated the New Jersey Constitution’s equal protection guarantee and required the state legislature to either extend marriage rights to same-sex couples or create a separate but equivalent legal institution. The New Jersey Legislature then enacted the Civil Union Act, which provided same-sex couples “all the rights and benefits that married heterosexual couples enjoy.”
At the same time, the legislature also established a Civil Union Review Commission (CURC) to determine whether the Civil Union Act satisfied the Lewis decision; in 2008, the CURC issued its final report, which urged the legislature, based on “the overwhelming evidence presented to the Commission,” to amend state law such that same-sex couples would be able to obtain full marriage equality. In 2009, a marriage equality bill was voted down in the state Senate, and the Lewis plaintiffs went back to court seeking a new legal decision in the light of the CURC’s report.
The New Jersey Supreme Court, in a 3-3 decision, turned down the request in 2010, but allowed the plaintiffs to file a new lawsuit, called Garden State Equality v. Dow, in 2011–the very lawsuit to which the new Lambda Legal brief pertains. In 2012, the New Jersey legislature approved a marriage equality bill, which Republican Gov. Chris Christie vetoed, expressing a desire for a popular referendum on equal marriage rights in the state. Democrats in the legislature have committed to overriding Christie’s veto during the current legislature: they have until the end of the current session in January 2014 to assemble 2/3 votes in both chambers.
New Jersey’s civil unions law in a post-DOMA environment
At the core of Lambda Legal’s brief is a relatively simple argument: the Supreme Court’s invalidation of DOMA changed everything, and whether or not New Jersey’s civil unions were unconstitutional before DOMA was history, they certainly aren’t constitutional now. To understand Lambda Legal’s strategy in the Garden State Equality case, one need look only at the New Jersey Supreme Court’s opinion in Lewis:
[T]he unequal dispensation of rights and benefits to committed same-sex partners can no longer be tolerated under our State Constitution…. [D]enying rights and benefits to committed same-sex couples that are statutorily given to their heterosexual counterparts violates the equal protection guarantee of Article I, Paragraph 1.
Before the Windsor decision, same-sex couples in states with marriage equality (for instance, New York) and in civil unions in states like New Jersey were treated the same by the federal government: namely, their marriages were ignored. Although the CURC held that New Jersey’s civil unions did not grant full equality even under state law the way that equal marriage rights would, there was a case to be made–pre-DOMA–that civil unions in New Jersey weren’t all that different from marriage equality in New York. As Lambda Legal writes, that is no longer true:
[A]fter Windsor, there simply can be no question but that same-sex couples in New Jersey are denied the equal benefits expressly guaranteed by Lewis, thus inflicting precisely the indignity which the New Jersey Supreme Court, in that opinion, abhorred.
Lambda Legal is referring here, of course, to the federal benefits which the U.S. government is now in the process of extending to married same-sex couples in the wake of the DOMA decision. In other words, civil unions in New Jersey now prohibit same-sex couples from accessing federal benefits–since the federal government does not recognize couples in civil unions as eligible for such benefits–which these couples could obtain with New Jersey marriage licenses. From the brief:
In the wake of Windsor, these labels are inarguably, and as a matter of law, far more than mere words. New Jersey’s exclusion of same-sex couples from lawful marriage deprives these couples … of numerous federal protections, benefits, and responsibilities…. The resulting violation of Lewis’ mandate that “committed same-sex couples must be afforded on equal terms the same rights and benefits enjoyed by married opposite-sex couples,” … is patent.
After New Jersey, five other possible targets
It’s worth looking at Lambda Legal’s brief in a few ways to grasp its true significance. First, in terms of New Jersey, the Garden State Equality suit looks quite likely to succeed, especially in light of the argument laid out in the new brief. To a large extent, this is because of the Lewis decision: anchoring the argument for a state-based marriage equality suit in the very language of a state’s Supreme Court ruling essentially mandating equal rights for same-sex couples is a very strong position. Lambda Legal’s challenge could well prevail at the New Jersey Supreme Court–perhaps even before a successful veto override could take place in the legislature.
More importantly, the Garden State Equality challenge could prove to be a model for similar litigation in Hawaii, Illinois, Colorado, Oregon and Nevada, the five other states that offer civil unions or domestic partnerships but not marriage equality. Remember, even before Proposition 8, the court case that brought marriage equality to California was based almost entirely on a challenge to the state’s decision to offer identical legal protections to couples with different terminology based on those couples’ sexual orientation. The New Jersey case has a leg up on the California challenge, then, because it can point to actual, discrete rights which civil unions do not provide but equal marriage rights would.
The legislatures of Hawaii and Illinois have both already–and unsuccessfully–considered marriage equality bills this year, and could possibly return to the issue before the end of the current legislative sessions. LGBT advocates in Oregon are currently laying the groundwork for a ballot initiative next year that would write marriage equality into the state constitution. Given that Colorado approved a civil unions bill only this year, marriage equality legislation looks further off in that state. A legal challenge like the Garden State Equality-type argument could prove a more fruitful path forward for LGBT advocates in Colorado, as well as Nevada and Hawaii, out of which federal marriage equality challenges are currently pending before the Ninth Circuit.
Just as significantly, the arguments made in Lambda Legal’s brief could essentially prophesy the end to civil unions and domestic partnerships in general. With Section 3 of DOMA invalidated, such legal novelties are even more manifestly unjust than they were before: a separate but purportedly equal legal status that serves merely to perpetuate same-sex couples’ unions as less than and bars them from attaining all the rights of marriage.
The 50-State Solution
Because it has the eminently persuasive argument of the Lewis decision to rely on, Lambda Legal’s new brief stops short of the argument that anything less than nationwide marriage equality violates same-sex couples’ constitutional rights. But the brief does hint at this argument by relying on Justice Anthony Kennedy’s decision in the DOMA case:
As the Supreme Court reiterated in Windsor, “[t]he Constitution’s guarantee of equality ‘must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot’ justify disparate treatment of that group….” But such disparate treatment is, of course, at the core of what New Jersey has done here, by refusing to allow same-sex couples to marry for one reason and one reason only: because they are same-sex couples, and not different-sex.
Without even mentioning the words ‘civil unions,’ the brief lays out the rationale that could be used in any non-marriage equality state by replacing ‘New Jersey’ with something like ‘Ohio’ or ‘Mississippi. If it is unconstitutional to withhold equal marriage rights from same-sex couples simply because they are same-sex couples, it doesn’t make much difference if a state offers civil unions or domestic partnerships instead.
In my multi-part series on the timing of the DOMA and Prop 8 cases at the Supreme Court, I predicted that the invalidation of DOMA would lead to marriage equality litigation across the country in states like New Jersey (and, at that point, California) with civil unions or domestic partnership laws. As I expressed then, it’s worth taking a moment to reflect on just how meaningful the death of DOMA’s Section 3 is. To use Justice Ruth Bader Ginsburg droll but brilliant words from oral arguments this March, the end of DOMA meant the end of ‘skim-milk marriages’ that offered only state benefits but not federal ones.
Allowing same-sex couples to access the federal benefits that they justly deserve only makes it more constitutionally inadmissible to bar couples from marrying in the first place. To use a smart phrase from the Lambda Legal brief, the end of DOMA means that state-conferred marriage licenses are now the “exclusive gateway” for couples to receive federal benefits, regardless of their sexual orientation. To extend (or perhaps muddle) the metaphor, civil unions lead only to half-baked equality. Lambda Legal’s Garden State Equality brief is just the beginning of the end for marriage equality bans in New Jersey–and across the country.
This post was updated at 3:10 p.m. Eastern to include the following change: Oregon and Nevada both have domestic partnership laws, and thus could be ripe targets for a Garden State Equality-type challenge like the states which offer civil unions.