New Jersey Supreme Court Denies Stay Request, Same Sex Marriages To Begin Monday

And New Jersey makes 14.

law-gavel-lights

Last month a trial court judge in New Jersey declared that New Jersey’s law that limited gay men and women to civil unions was invalid under the state’s constitution and previous State Supreme Court precedent in light of the U.S. Supreme Court’s ruling in United States v. Windsor. In short, the court had found that the fact that civil unions do not receive the same recognition under Federal Law that marriages do means that the civil union “solution” that the state legislature had come up with in response to a 2006 State Supreme Court ruling was no longer sufficient. Her ruling mandated that same-sex marriages would begin statewide on October 21st. Subsequently, the case was accepted for an expedited appeal by New Jersey’s Supreme Court, skipping what would ordinarily be an intermediate level of appeal. The Court also took jurisdiction over the state’s request for a stay of the trial court’s order pending resolution of the appeal. This afternoon, the Supreme Court of New Jersey denied the request for a stay and ordered that same-sex marriages could begin statewide beginning on Monday:

Same-sex marriages can begin Monday in New Jersey on a provisional basis, the state Supreme Court ruled today.

The court will not make a final ruling on same-sex marriage rights until next year. But in the meantime, it upheld an order by a trial judge allowing civil marriages for gay couples to start Monday.

“The public interest does not favor a stay,” the Supreme Court ruled in a 7-0 decision by Chief Justice Stuart Rabner today. “State officials shall therefore permit same-sex couples, who are otherwise eligible, to enter into civil marriage beginning on October 21, 2013.”

Although the Supreme Court could change its stance later, for now, the decision is a victory for thousands of gay couples in New Jersey, who will be able to marry in-state for the first time starting next week.

And it’s a setback for Gov. Chris Christie, an opponent of same-sex marriage who says only “one man and one woman” should be able to wed.

The Republican governor is challenging a lower-court ruling that legalized gay marriage in New Jersey last month, and had asked the Supreme Court to postpone the first same-sex weddings until he was finished appealing.

The fact that the Court refused to grant the stay isn’t necessarily an indication of how they’ll rule ultimately on the appeal, of course. In essence, all the Court is really saying here is that the state has not met its burden under the relevant precedents to show why a stay of the previous ruling is required. However, given the fact that we’re talking about a trial court’s interpretation of  one of the Court’s own previous rulings, the fact that a stay was not granted is arguably, very significant and could be an indication of how this case will ultimately end up being decided.

One of the standards that the Court was required to consider in  connection with the stay application is whether the party seeking the stay has a stay that “rests on settled law and has a reasonable probability of succeeding on the merits.” What the court has to say with regard to this is particularly instructive in that it essentially rejects each of the arguments that the state has made in favor of the stay and concludes that it has “not shown a reasonable probability or likelihood of success on the merits.” Presumably, if the Court believed that there was even the slightest chance at this point in the proceedings that the state could succeed, they would grant the stay if for no other reason than to avoid creating a situation where same-sex marriage is legal in New Jersey for three or four months, only to be halted by a ruling from them that overturned the trial court’s ruling. Today’s opinion seems to suggest that this outcome would be rather unlikely, although I will again caution that it’s entirely possible the Court could find a reason that the lower court ruling should be overturned.

All of that is for another day, though. What this means is that, starting on Monday, New Jersey will be, at least for the time being, the 14th state to recognize same-sex marriage. Newark Mayor, and Senator-Elect, Cory Booker has already announced that he’ll be there conducting what are likely to be the first same-sex marriages in the state:

Before Senator-elect Cory Booker comes to Washington, he plans to start the ball rolling on marriage equality in New Jersey by marrying several same-sex couples at 12:01 a.m. Monday, Oct. 21, BuzzFeed has learned.

Multiple advocates in New Jersey confirmed that the Newark mayor who just won election to the Senate on Wednesday plans to conduct weddings in the first floor rotunda of Newark City Hall after the clock strikes midnight.

The only remaining question is whether the New Jersey Supreme Court will issue an order before then putting marriage equality on hold while it considers an appeal of the trial-court decision that led to Booker’s plans.

According to information provided to BuzzFeed, wedding plans are moving forward at this time, with at least 10 couples and their families expected to attend the early Monday morning event.

The wedding planning is going into effect in Newark and other cities around New Jersey late this week as a result of Judge Mary Jacobson’s decision on Sept. 27 requiring that the state allow same-sex couples equal marriage rights. In her ruling, she stated that “[s]ame-sex couples must be allowed to marry in order to obtain equal protection of the law under the New Jersey Constitution.”

In order “[t]o allow the State adequate time to prepare to effectuate this ruling or to pursue appellate remedies,” she wrote, “the court directs that it take effect on October 21, 2013.”

(…)

Officials in Newark and a handful of other jurisdictions — including Asbury Park, Jersey City and Red Bank — have determined that Jacobson’s ruling, absent a stay, means that same-sex couples are allowed to marry beginning Oct. 21 and, as such, they are beginning to accept applications for marriage licenses prior to that date.

Asbury Park administrator Terence Reidy, for example, told the Star Ledger on Thursday that Asbury Park would issue applications on Friday.

The various jurisdictions’ plans are slated to go forward despite an email from a state health department official, reported by the Star Ledger as having been sent to municipal officials, stating that licenses are not to be issued “until you hear from this office that we have the authority to do so.”

Reidy, however, told the Star Ledger, “Absent a legally binding order not to issue these applications, it is our understanding of the law, that we have the right and obligation to begin issuing applications tomorrow. Please be clear, this is not a act of civil disobedience, but rather our interpretation of what the law permits at this time.”

In its order this afternoon, the Supreme Court of New Jersey specifically directs state officials to allow same-sex couples to marry beginning on Monday, so the doubts that were referred to in this article are pretty much moot at this point. Starting early Monday morning, same-sex marriage is the law of the land in the Garden State, and something tells me that isn’t going to change after the Court issues its final ruling in this case.

Here’s the opinion:

Garden State Equality et al. v. Dow et al Supreme Court Opinion on Stay Motion by dmataconis

FILED UNDER: Gender Issues, Law and the Courts, US Politics,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. michael reynolds says:

    Thanks for that, Doug. It’s very useful to have a lawyer interpret the language sometimes.

    You know who else is grateful? Chris Christie. He can spend the next year not being asked about gay marriage in NJ.

  2. grumpy realist says:

    Expect Maggie Gallagher to have a snit-fit in 3…2…1…

    And another sorrowful editorial by Rod Dreher about how this shows how anti-Christian the U.S. is, whereas if we all believed in Christianity it would be all kittens and roses. Or something.

  3. C. Clavin says:

    Another state shuffles into modernity…and our citizens are freer than they were yesterday.
    Happy Friday.

  4. C. Clavin says:
  5. grumpy realist says:

    @C. Clavin: Well, we always knew the Tea Party had absolutely no understanding about economics. Now it seems their leaders are deficient on law as well.

  6. Gromitt Gunn says:

    I sincerely hope that this is a sign that the future ruling of the NJ Supreme Court will be in favor of marriage equality in NJ. It would be incredibly cruel to take over the stay and allow marriages to go forward starting Monday, only to rule against those same marriages in early 2014.

  7. grumpy realist says:

    P.S. And when I say “don’t know anything about law” I mean completely, mind-boggingly, totally clueless.

    Maybe the next thing they can do is bring a class-action suit against baldness.

  8. David in KC says:

    While it is possible the New Jersey Supreme Court could overturn the trial court’s decision, I’d pretty much bet the farm that they are going to affirm based on the ruling on the stay. It also lines up with their previous decision requiring the legislature to come up with a plan giving the same rights to same sex couples as opposite sex couples. The lifting of DOMA pretty much makes anything but marriage less than equal.

    I could be wrong, anyone willing to make a wager?

  9. Phillip says:

    @grumpy realist:

    completely, mind-boggingly, totally clueless

    Might I suggest “pathologically delusional?”

  10. stonetools says:

    Might point out again that it is the New Jersey Democrats that have pushed for marriage equality, along with help from liberal , “activist” judges, and it is Doug’s favorite Republican-Chris Christie-that has vetoed a Democrat-led bill making same sex marriage legal in New Jersey ( He also appealed the trial court’s ruling). Unsurprisingly , Doug doesn’t mention Christie’s opposition in the article.
    This is why, especially on this issue, ANY Democrat is better than the so called best Republican. (Macauliffe haters take note here).

  11. jd says:

    @stonetools: “ANY Democrat is better than the so called best Republican.”

    It’s in the freakin’ Democratic platform: “At the core of the Democratic Party is the principle that no one should face discrimination on the basis of race, ethnicity, national origin, language, religion, gender, sexual orientation, gender identity, or disability status.”

    There IS no other party.

  12. bill says:

    @jd: dude, take something for that- this is judicial activism/pandering. “gender identity”? wtf, you got a dick or you don’t – deal with it. and does “disability” mean “laziness” too? here’s a clue, if you can walk, you don’t need a special parking spot….
    due to the lameness of california my company just completely dropped a bi-language employment application, if you can’t fill it out- you can’t work there. it actually sucks, but it’s all about liability in the end. businesses will not lose to any of this bs, backlash will mount though. be careful what you wish for.

  13. James Pearce says:

    @bill:

    this is judicial activism/pandering.

    Nah, this is just making sure that certain principles like “equality before the law” isn’t just a bumper sticker but an actual, you know, principle.

    What you’re asking for is pandering.

    You’re asking that we pander to your ignorance and prejudices. No doubt you will continue to vote for folks who are more than happy to indulge you, but you should not expect to prevail in the end.

  14. David in KC says:

    @bill: as to your comment about if you can walk you don’t need a special spot, you are full of it. I have MS, I can still walk, but there are days where I can’t walk too far. So you can take that comment and put it where the sun doesn’t shine. Maybe you can actually think about what others go through before you opine on something that you have no actual experience with.

  15. Argon says:

    @grumpy realist:

    And another sorrowful editorial by Rod Dreher…

    Rod doth protest too much, methinks. Maybe he fears for himself. He certainly displays a prurient interest in discussing the gay.

  16. mattbernius says:

    @michael reynolds:

    You know who else is grateful? Chris Christie. He can spend the next year not being asked about gay marriage in NJ.

    *THIS* on multiple counts. In fact it’s just about the best thing that could happen to Christie because:

    a. It gives him a Republican red meat topic to campaign with/against (Judicial Activism).

    b. He avoids having to decide whether or not to veto SSM again. Given the party shifts on this topic, there was no *safe* option for him.

    c. He avoids the (very unlikely) possibility that if he did veto it, said veto would have been overridden. Again, HIGHLY HIGHLY unlikely, but better to have it off the table all together.

  17. bill says:

    @James Pearce: sounds like some people are more equal than others to me- and they get some sort of benefit for it, that’s not equality.

    @David in KC: i used to date a chick w/ ms- sure she had rough days but mainly she was as fit and mobile as anyone. and that parking pass was a sham.
    seeing someone that has the nerve to park in a hc space and then walk from their car/truck is beyond shameful.

  18. James Pearce says:

    @mattbernius:

    gives him a Republican red meat topic to campaign with/against

    I’m not sure how much he would want to dwell on same sex marriage. No doubt his documented opposition will lure supporters, but “Vote for me; I couldn’t stop gay marriage” doesn’t really seem like a theme he’d want to go with.

    Christie strikes me as a guy with bigger things on his plate.*

    * Not a fat joke. Well, not entirely. Also a nod to his ability to separate the things that are important from those that are not. Putting up a futile fight against gay marriage? Not that important.

  19. James Pearce says:

    @bill:

    sounds like some people are more equal than others to me- and they get some sort of benefit for it, that’s not equality.

    Front row parking? Big deal.

    I don’t get mad when I see them being used by an apparently* able-bodied person. I get mad when I see them sitting empty as I circle around for another go.

    But I don’t get too mad. Because it’s just a parking space.

    * I say “apparently” because, truth is, you never know….

  20. David in KC says:

    @bill:glad to hear her MS was not so bad at the time, and for the most part mine is manageable. But, there are times when if I didn’t have the blue card, I wouldn’t be able to get from the parking garage to the office and have enough energy to function. MS is a wonderful disease, it treats everyone a little different. And I’m thinking the used to date is probably for the best for her. Support goes a long way in dealing with it and you apparently just don’t have the knack.

  21. mattbernius says:

    @James Pearce:
    Oh, I don’t think he’d fight “Gay Marriage” — I think however, he can talk about this as an example of Judicial Action making an end run around the Legislature and the Will of the People. In doing so he can hold onto his already express populist suggestion that this should have been a ballot referendum put to the people of the entire state.

    It’s the activism part, not the gay marriage part, that’s helpful for him going forward.

  22. bill says:

    @David in KC: nothing personal dude, you may very well be one of the few that actually deserves a spot, i don’t get mad either- i ride a bike and park wherever i want anyway….unless it’s snowing ! best of luck with your future and hopefully you live long and as pain free as possible; seriously. look forward to busting chops in here for a long time!

    @James Pearce: when there’s 20 spots up front and 0 use, there’s something wrong somewhere. and then there’s the braille on drive through atm’s…..really?! i have a friend who’s legally blind, she could never reach across the seat and hit those numbers!

  23. anjin-san says:

    @ bill

    seeing someone that has the nerve to park in a hc space and then walk from their car/truck is beyond shameful.

    My father in law was exposed to agent orange during one of his two tours in Viet Nam. As a result, he has a number of serious health issues that have left him disabled. And yes he can walk – slowly.

    This man earned his disability tag, and perhaps some simple gratitude from people who never put their butts on the line. In other words, kiss my ass.

  24. James Pearce says:

    @mattbernius:

    It’s the activism part, not the gay marriage part, that’s helpful for him going forward.

    You may be right. I’m not so sure “judicial activism” still has the same truck nowadays that it did in days past, especially with our current government in place.

    It’s always been a bit of a joke argument, amounting to little more than “I disapprove of that ruling,” but I don’t think that’s why it’s gone out of favor. It’s gone out of favor because with Democrats controlling the White House and the Senate, many on the right believe that some “judicial activism” is just what the doctor ordered.