Friday, September 27, 2013
In a 55 page opinion today in Garden State Equality v. Dow, Mercer County Superior Court Judge Mary Jacobson granted summary judgment to the plaintiffs finding that NJ's same-sex marriage ban violated the state constitution. The judge held that New Jersey's civil union scheme, considered an acceptable remedy for any violation of the state's equal protection clause by the NJ Supreme Court in Lewis v. Harris (2006), was no longer sufficient to satisfy state constitutional law given the United States Supreme Court's invalidation of DOMA last June in Windsor v. United States.
Judge Jacobson concluded:
Because plaintiffs, and all same-sex couplies in New jersey, cannot access many federal marital benefits as partners in civil unions, this court holds that New Jersey's denial of marriage to same-sex couples now violates Article 1, Paragraph 1 of the New Jersey Constitution as interpreted by the New Jersey Supreme Court in Lewis v. Harris.
This is an interesting - - - but totally predictable - - - use of Windsor to undermine the very rationales of the state's highest court's determination that civil unions would satisfy equality concerns.
The judge admits that the doctrinal landscape is murky, but also that it is rapidly changing. For this judge, effectuating the holding of the New Jersey Supreme Court in Lewis v. Harris that the state constitution required same-sex couples to be able to obtain all the same rights and benefits available to opposite sex couples compels the extension of marriage to same-sex couples.
In only a very few other states would similar reasoning be applicable: Illinois, Hawai'i, and Colorado have civil union laws but not same-sex marriage. Other states having civil unions also allow same-sex marriages or are "converting" civil unions to marriages.
As for New Jersey, odds are the state will appeal, although political considerations might weigh heavily.