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New Jersey State Judge Considers Marriage Equality Challenge

A New Jersey state court judge in Trenton today expressed skepticism towards state officials' claims in defense of New Jersey's decision to offer civil unions but not equal marriage rights to same-sex couples, particularly in light of the Supreme Court's recent decision invalidating the Defense of Marriage Act.

In questions posed to lawyers from both sides, however, Judge Mary Jacobson (pictured below) showed hesitation towards moving too fast on a constitutional issue of such importance, asking for further briefing and telling lawyers not to expect a ruling until next month at the earliest.

"Federalism is messy," the judge said matter-of-factly early on during the proceedings, succinctly summing up the complexities present in the legal challenge, known as Garden State Equality v. Dow and brought by Lambda Legal, an LGBT legal advocacy group.

At issue today was a motion for summary judgment--essentially, a request for a decision to be rendered without a full trial--filed by Lambda Legal.  In that brief and during today's oral arguments, the legal group claimed that because married same-sex couples can now access federal benefits after the invalidation of DOMA's Section 3, New Jersey's decision to offer only civil unions (which do not provide  federal benefits) to same-sex couples comprises an unconstitutional violation of these couples' equal protection rights under both the state and federal constitutions.

MaryIn 2006, the New Jersey Supreme Court ruled in a case known as Lewis v. Harris that same-sex couples must be afforded the same rights and benefits as different-sex couples, although the court allowed the legislature to create a separate legal status providing such rights, which it did.

During today's proceedings, New Jersey Assistant Attorney General Kevin Jespersen trod a thin line, circling back several times to one fundamental question: can a state court, relying on the New Jersey Constitution, take action against the state for a deprivation of rights and benefits by the federal government? Because the state court has no jurisdiction to order federal agencies to extend benefits to same-sex couples, Jespersen argued, and New Jersey has done everything within its power to make civil unions and marriages legally equivalent, there is no action the court can take in response to Lambda Legal's constitutional claims.

At the same time, however, Jespersen--echoing New Jersey's larger argument--told the court that New Jersey's civil unions should make same-sex couples eligible for federal benefits because of the Supreme Court's decision striking down DOMA in the case known as U.S. v. Windsor.  In that case, the high court ruled that the federal government could not withhold federal benefits from same-sex couples whom states (such as New York, the state at issue in the Windsor case) had taken action to protect by offering them equal marriage rights.

By extension, Jespersen argued, the federal government should be required to defer to state law in determining which couples are considered to be married in order to determine eligibility for federal benefits, rather then only looking to whether couple's are married or unmarried. Judge Jacobson pushed back on this argument, telling Jespersen he was "asking the federal government to do something very complicated"--that is, to look at each state's laws in determining how to disburse each and every federal marital benefit.

Continue reading AFTER THE JUMP...

This argument was echoed by Lawrence Lustberg, the attorney arguing on behalf of the plaintiffs during today's proceedings, who at times combatively refuted New Jersey's arguments and urged the court not to overcomplicate its consideration of the case.  The Windsor decision explicitly limited itself so that it did not include civil unions and domestic partnerships, Lustberg argued, quoting the decision's final line: "this opinion and its holding are confined to those lawful marriages."

Because of that holding, Lustberg told the court--and in light of the fact that nearly all federal statutes pertaining to marriage benefits include language focusing on a couple's marital status, not on whether or not a couple is in a marriage-like partnership--the plaintiffs in the Garden State Equality case would be unlikely to succeed in federal court if they attempted to force the federal government to extend marital benefits to couples in civil unions.

Instead, Lustberg said, the Supreme Court's decision striking down DOMA means that, as a matter of law, the only constitutional remedy to the unequal treatment of New Jersey's same-sex couples is for the state to extend equal marriage rights to such couples.  "This is all caused by the state, it begins with the state, and it could end with the state," Lustberg told the court.

6a00d8341c730253ef017ee9c3b891970d-800wiOn the constitutional issues at the center of the case, although she presented both lawyers with pointed and extensive questioning as to their positions, Judge Jacobson appeared inclined to side with Lambda Legal's argument, pointing out that she is bound by the New Jersey Supreme Court's decision in Lewis mandating that same-sex couples be treated equally to different-sex couples.

In plain language, Judge Jacobson told Jespersen that the recent decisions of several federal agencies not to consider couples in civil unions eligible for federal benefits pointed to the fact that they are not being treated equally, and asked the attorney how the state Supreme Court could possibly find such treatment constitutional in light of the Lewis decision.

Yet at the same time, she expressed concern for moving too quickly on the issue. "I'm very concerned about whether this is the right time to bring this case," Judge Jacobson told Lustberg, "when I know the [New Jersey] Supreme Court wanted a factual records, and the facts in terms of what federal agencies are doing are in flux."

At the end of today's oral arguments, the judge invited attorneys for both sides to supplement their briefings to address the questions she had raised by August 28. A decision in the case, she said, will not come until September at the earliest.

Based on her questioning today, it seems quite possible that Judge Jacobson may opt to proceed to a full trial--rather than issuing a summary judgment--in order to develop a full factual record for her eventual decision. In either event, its likely that any ruling will be appealed, and could very well go to the state Supreme Court for a final determination.

In addition to writing for Towleroad, Jacob Combs is also an editor at, where this report originally appeared.

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  1. Summary judgments are not granted lightly, and I was not at the hearing today ... BUT - it seems to me this case comes as close to earning a summary judgment as any I've seen.

    I hope the judge is cognizant of how absurd it is, in this post-DOMA world, to delay local Jersey marriage equality any more than is absolutely necessary. If this is going to be appealed to its Supreme Court, let's get on with it pronto. I hope Judge Jacobson agrees with me!

    Posted by: Zlick | Aug 15, 2013 5:07:06 PM

  2. I cannot figure out why they need more of a record. The State Supreme court already ruled we had to be equal, and now we clearly are not. Not to mention, we are also not equal to Gay people in most of our surrounding States, as they can get married and we cannot.

    Also, both the house and senate passed a marriage equality bill, and it would be law today if not for ONE MAN!! Why couldn't the court use the research that has already been done? Not only by our house and senate, but by the State of CA? NJ cannot be that different from CA. How could they possibly rule that civil unions are fine after what happened in CA.

    This all makes my head spin. I wish someone sane would step in and put an end to this madness. If only they could see what this does to us gay folk. Big Sigh.

    Posted by: acoolerclimate | Aug 15, 2013 5:12:46 PM

  3. Another thing. How can she say now is not the time to bring this? Sounds like she's talking through Christie. I'll bet he's already told her to keep this going until he runs for President. Ugh.

    In the meantime, all this waiting and putting together a record just means that people have to put their lives on hold while all these people are jerking us around. Ridiculous! Does this judge read this blog? Please?

    Posted by: acoolerclimate | Aug 15, 2013 5:16:06 PM

  4. Translation: She knows what she should do, but dang, it could come back at her!

    Posted by: Ken | Aug 15, 2013 6:01:24 PM

  5. Everything I read is not good news regarding the timeline of marriage equality in NJ, at least. Looks like this could be a slow process and looks likely to head to a full trial. Just what the Christie administration wanted. To stall marriage equality in New Jersey.

    Posted by: Francis | Aug 15, 2013 6:46:22 PM

  6. i hear these worries with "moving too fast" very often. it's exasperating. anyone can see that these decision makers are moving at a snail's pace. justice delayed is justice denied.

    Posted by: jed | Aug 15, 2013 6:57:27 PM

  7. "New Jersey has done everything within its power to make civil unions and marriages legally equivalent"

    So what? It's not the state's obligation to make civil unions and marriages equivalent. It's their obligation to afford all couples the equal protection of the law. If separate isn't equal, it isn't equal. These Republicans want to wish upon a pink unicorn that separate is equal, and now they're whining to the judge that the court, the federal government, and everyone else should be compelled to humor their delusions.

    Posted by: JJ | Aug 15, 2013 7:56:14 PM

  8. Separate but equal is not equal .. and on another note, we have yet one more state flag featuring a same sex couple .. lol!

    Posted by: Fox | Aug 15, 2013 8:14:32 PM

  9. When the NJ Legislature refused to even consider civil unions my partner and I sold our home in NJ in 2004, moved to Massachusetts and got married. I "the time's not right" in NJ, I suggest you take you businesses, your tax dollars and yourselves to a state that keeps the right time.

    Posted by: Fr. Bill | Aug 15, 2013 8:32:22 PM

  10. I think many of you are way too critical of the Judge. What she is saying is that with all the Federal Agencies revising their rules and regulations now that DOMA is gone it would be hard to create a factional record for the Supreme Court in NJ. What we all need to realize is: Win or Lose this is going to be appealed. So if everything is in Flux...everything in the record could be garbage by the time it reaches the Supreme Court.

    Imho it seems she is on our side, she just wants whatever ruling she makes to actually stick and not get tossed out 30 seconds later.

    If she rules it is unequal due to the Federal Government not recognizing Civil Unions and it is then decided later the Federal Government would recognize Civil Unions it could lead to her ruling being reversed since NJ Civil Unions would no longer be "unequal" in terms of benefits. It is a mess and could lead to a much longer and more drawn out legal battle down the road if things are rushed too quickly.

    Posted by: Joseph | Aug 16, 2013 1:05:18 AM

  11. One thing I notice missing from this case -- and a number of others -- is something that was a key factor in the Massachusetts Supreme Court's decision way back when: the word "marriage" itself carries a social and cultural weight that no other term does. So anything else by definition denotes an inferior status.

    Posted by: Hunter | Aug 16, 2013 10:19:43 AM

  12. To the extent that the Federal Government is implementing the President's directive (OK, strong suggestion) that the Federal government determine marital status by the state of celebration rather than the state of residence, the issue is moot. New Jerseyans are welcome to cross the Hudson River and get married. If need be, they could probably still form civil partnerships in New Jersey to secure the rights that the state alone confers.

    In this case, there is a PATH to equal protection.

    Posted by: Rich | Aug 16, 2013 2:54:42 PM

  13. We need to demand equality. Civil unions are NOT equal. We LGBT DESERVE marriage and pay into a tax system in our nation while being treated as second class citizens.

    Posted by: USC Trojans Fan | Aug 17, 2013 9:17:51 AM

  14. There was a ruling some time ago, to which N.J. responded by offering civil unions and saying they're essentially the same thing as marriage. Of course, it was not; separate is not equal.

    However, with DOMA gone, the case that they're not the same is much clearer! Civil Unions do not entitle one to federal marital benefits, and affect couples even if they never set foot outside of New Jersey.

    Posted by: Anonymous | Aug 17, 2013 2:13:39 PM

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