Today at 11:30 AM, Garden State Equality is hosting a rally at the statehouse. Following that rally, GSE, the ACLU of New Jersey, and Lambda Legal will hold a press conference at which they will discuss their response to yesterday’s landmark U.S. Supreme Court Decision striking down section 3 of the Defense of Marriage Act. Here’s what to expect—or at least, what I would expect.
This much is certain: Gay rights organizations in New Jersey are bringing the fight for marriage equality in New Jersey to the courts. Lambda Legal, who represent the plaintiffs in both the Lewis v. Harris and Garden State Equality v. Dow cases, is promising “swift legal action” to enforce the 2006 New Jersey Supreme Court decision of Lewis v. Harris. And yesterday, in response to the Windsor decision, Steven Goldstein, founder and past director of Garden State Equality, posted this on Facebook:
MESSAGE TO NEW JERSEY: Right now, calm down about a referendum, override and new legislation. In light of today’s U.S. Supreme Court decisions, let the brilliant lawyers we brought on board do their thing.
Of the legal options available, the marriage equality legal team will most likely ask the Supreme Court of New Jersey directly to enforce the Lewis decision and strike down the civil union laws as unconstitutional.
The Lewis decision held that same-sex couples in New Jersey must be afforded the same rights and benefits as married opposite-sex couples, though not necessarily marriage itself. In 2010, the Lewis plaintiffs filed a motion in the New Jersey Supreme Court seeking to have civil unions replaced with marriage equality, arguing that civil unions had failed to keep Lewis‘s promise of equality.The Supreme Court denied the motion by a 4-3 vote, the majority holding that it could not decide the matter “without the development of an appropriate trial-like record.” In response to that ruling, the legal team filed a new lawsuit in Superior Court, Garden State Equality v. Dow, to establish such a factual record. That lawsuit is still pending in the trial court.
The Supreme Court’s decision striking down Section 3 of the Defense of Marriage Act in Windsor arguably makes a detailed factual record unnecessary. As Garden State Equality’s Troy Stevenson explains, “the [DOMA and Prop 8] decisions do not extend marriage equality to New Jersey, and New Jersey’s couples in civil unions will continue to be shut out of federal marriage rights.” If civil unions were “separate but equal” before Windsor, they sure aren’t now. And you don’t need a pile of deposition transcripts and expert reports to figure that out.
So the logical step seems to be for the Lewis plaintiffs to file a new Motion in Aid of Litigants Rights in the Supreme Court, making just this argument. Although the legal team could also seek temporary relief from the lower court in Garden State Equality, the relief they would get—an injunction against the state of New Jersey and its officers ordering them to recognize or perform marriages between same-sex couples—would not necessarily bring federal benefits with it, at least not right away. The state may appeal the preliminary injunction to the Appellate Division and ultimately the Supreme Court, and appeals take time. And the federal government—which has no obligation to obey an injunction issued against state officers—may wish to wait and see how the state’s highest court acts before recognizing New Jersey civil unions as marriages.
Filing a motion in the Supreme Court, by contrast, gives the plaintiffs a chance at a New Jersey Supreme Court decision striking down the civil union law in the shortest amount of time.
But even a motion in the Supreme Court is no sure thing. While the legal argument is compelling, the court may be uncomfortable striking down the civil union law based the recent U.S. Supreme Court decision before the legislature has had a chance to react to the decision. And while the decision raises the stakes (in the form of over 1,100 federal benefits) for couples seeking marriage equality in New Jersey, the court may not share the plaintiffs’ sense of urgency. So I would not be surprised if, in addition to announcing new legal action, the principals at today’s press conference also redouble efforts to persuade fence-sitting legislators to override Governor Christie’s veto.
Governor Christie, unfortunately, shows no sign of reconsidering his “conditional veto” of the marriage equality legislation; rather, he reaffirmed his support for a ballot initiative on the issue. So for a bill to pass, it must receive two-thirds majority in both houses. This means it will require substantial Republican support in addition to nearly all Democrats. Hazel Gluck—a former Republican Assemblywoman and lobbyist who will speak at today’s press conference—could play an important role in securing that support.
What you won’t hear today is support for a referendum on marriage equality. Advocacy groups will focus their efforts, at least for now, on the courts and the legislature. In any event, to make this year’s ballot, a referendum must secure approval of three-fifths of each house by August 5.