August 5, 2013
Last week, the state defendants seeking to uphold New Jersey’s civil unions law threw a bit of a curveball in a state court case known as Garden State Equality v. Dow, arguing that the state’s marriage equality ban is constitutional because New Jerseyans in civil unions are entitled to federal marriage benefits after the repeal of the Defense of Marriage Act.
A bit of brief history: last month, 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 the basis for invalidating New Jersey’s civil unions system. In 2006, the New Jersey Supreme Court said in a case called Lewis v. Harris that same-sex couples in the state were entitled to all the state law benefits of marriage, but not necessarily the name of the institution, leading the legislature to approve marriage-like civil unions for same-sex couples.
The Garden State Equality case challenges New Jersey’s current marriage laws, and in its early July brief, Lambda Legal essentially argued that the Supreme Court’s invalidation of DOMA changed everything, rendering the state’s marriage equality ban blatantly unconstitutional because civil union couples are barred from accessing federal benefits that married couples can. As the brief puts it:
[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.
In their opposing brief from last week, the state defendants–Attorney General Paula Dow, Department of Human Services Comissioners Jennifer Velez and Department of Health and Senior Services Commissioner Mary E. O’Dowd–urge the court to dismiss Lambda Legal’s summary judgment motion, basing it substantially on their novel legal argument that New Jersey’s civil unions should allow same-sex couples to access federal marriage benefits.
The defendants’ argument relies overwhelmingly on the Supreme Court ruling invalidating DOMA: as the brief puts it, “[t]he language, reasoning, and holding of Windsor mandate that same-sex couples in civil unions receive all of the same federal benefits as married couples.” The brief presents several arugments in favor of this claim. “First,” it notes, “Windsor uses the terms ‘same-sex marriage’ and ‘civil union’ as functional equivalents.” Second, the defendants argue that Windsor‘s commitment to recognizing domestic relations as “a virtually exclusive province of the states” means that the federal government should defer to New Jersey law, which states that spouses in marriages and spouses in civil unions are legally identical.
Perhaps most importantly, the brief claims that “any federal policy or directive or interpretation of Windsor that denies benefits to civil union partners violates the due process and equal protection provisions of the United States Constitution as well as New Jersey’s sovereignty rights.” It continues:
Windsor requires two conclusions: 1) the federal government may not treat unequally same-sex partners whom New Jersey has declared must be treated equally, and 2) the federal government may not treat constitutionally deny benefits to same-sex couples to whom New Jersey has extended ‘all of the same benefits, protections and responsibilities under law’ as are granted married couples.”
In addition to these arguments, the defendants’ brief claims that Lambda Legal’s motion is ‘not ripe,’ to use the legal term, since some federal agencies have not yet announced their policies towards extending benefits to couples in civil unions. “[T]he position of the various federal agencies is in flux and non-uniform, and the federal government has yet to apply any policy in a concrete and cognizable setting. For all of these reasons, Plaintiffs’ constitutional challenge is not ripe.”
As a backup, the state officials’ brief makes two final arguments against Lambda Legal’s motion. In the first, it says that the motion asks the New Jersey court to remedy an issue of federal benefits, something that is outside its jurisdiction. In the second, the brief argues (in a bit of a tautology) that New Jersey’s limitation of the name of ‘marriage’ for different-sex couples only satisfies the rational basis equal protection test because spouses in civil unions are “legally entitled to federal spousal benefits.”
In essence, New Jersey’s new brief sets up a bit of a constitutional showdown in the Garden State Equality challenge. If the state court were to adopt the defendants’ legal rationale, it could in theory uphold New Jersey’s marriage equality ban, but in doing so it would be making a huge statement about same-sex couples’ right to access federal marriage benefits, something that is much more in the jurisdiction of a federal court. On the other hand, a rejection of that argument would likely lead to the conclusion that the New Jersey Constitution requires the state to offer marriage equality to same-sex couples.
Either ruling would be a major development. Perhaps the oral arguments for the case, scheduled for next Thursday in Trenton, will bring some clarity to the issue.
You can read the state defendants’ full briefing, courtesy of Scribd, below. (H/t Kathleen)