New Jersey Supreme Court

Advocates for same-sex marriage in New Jersey are heading back to court on Wednesday in an effort to invalidate New Jersey’s discriminatory heterosexuals-only marriage law.

New Jersey doesn’t allow same-sex couples to marry, but rather shunts them into civil unions.  A civil unions law was passed by the New Jersey legislature in 2006 in response to the New Jersey Supreme Court’s ruling in the Lewis v. Harris case, which said:

With this State’s legislative and judicial commitment to eradicating sexual orientation discrimination as our backdrop, we now hold that denying 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. To comply with this constitutional mandate, the Legislature must either amend the marriage statutes to include same-sex couples or create a parallel statutory structure, which will provide for, on equal terms, the rights and benefits enjoyed and burdens and obligations borne by married couples. We will not presume that a separate statutory scheme, which uses a title other than marriage, contravenes equal protection principles, so long as the rights and benefits of civil marriage are made equally available to same-sex couples. [emphasis added]

The court was clearly mandating that if same-sex couples were forced into a separate marriage-like institution, that institution had to provide them with the same rights and benefits that heterosexual couples receive from civil marriage.

The US Supreme Court’s invalidation of section 3 of the Defense of Marriage Act (DOMA) last week made the NJ Supreme Court’s equality mandate impossible to fulfill for New Jersey’s same-sex couples in civil unions.  This is because the federal government only recognizes marriages, not civil unions.  With the DOMA decision, married same-sex couples may now access the more than 1,100 federal benefits and protections that DOMA previously denied them.  Couples in civil unions may access nothing.

“The demise of DOMA Section 3 means that New Jersey’s marriage discrimination is all that bars same-sex couples and their families from the full range of federal rights, benefits, and protections. With this new legal landscape, New Jersey’s same-sex couples and their children need swift action,” said Hayley Gorenberg, Lambda Legal Deputy Legal Director, in a press release. “In Lambda Legal’s original New Jersey marriage case, Lewis v. Harris, the New Jersey Supreme Court ruled in 2006 that it is unconstitutional to give same-sex couples lesser rights than different-sex couples. In 2013, after the defeat of DOMA, there is nothing left to debate – couples in civil unions are not being treated equally under the law.”

On Wednesday Lambda Legal plans to file a motion for summary judgment in the case Garden State Equality, et al. v. Dow, et al. which was already asking the New Jersey Supreme Court “to intercede and order marriage to secure compliance with its original mandate of equality for the Lewis v. Harris plaintiffs alleging that civil unions were failing to provide legal equality even before the DOMA decision”.

Oral arguments will be held on August 15, the Washington Post reports.

With the exception of New Jersey, every northeastern state that had civil unions has since adopted marriage equality laws.  These include Maine, New Hampshire, Vermont, Connecticut, Rhode Island, Delaware and Maryland as well as the District of Columbia.

Related: States With Civil Unions Are Depriving Gay Couples Of Federal Marriage Benefits

Cross-posted at Blue Mass Group.

Pam Spaulding

Pam Spaulding