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.
On 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 EqualityOnTrial.com, where this report originally appeared.