New Jersey Supreme Court To Hear Same-Sex Marriage Case In January

The issue of same-sex marriage is likely to be resolved in New Jersey by early next year.


The New Jersey Supreme Court has agreed to hear an expedited appeal in the Garden State Equality case, which resulted last month in a state trial court judge ruling that New Jersey must recognize same-sex marriages:

WASHINGTON — The New Jersey Supreme Court will decide in coming months whether same-sex couples can marry in the state, with arguments in the case to take place in early January 2014.

In a Friday order, the court accepted the “direct certification” of the appeal, including taking over consideration of whether to put on hold the trial-court decision that would allow same-sex couples to begin marrying on October 21.

Following Judge Mary Jacobson’s September ruling that New Jersey’s civil unions law did not give same-sex couples in the state all of the benefits of marriage because the couples are not eligible for federal benefits linked to state marriage licenses, Gov. Chris Christie’s administration asked the state Supreme Court to hear the appeal directly, rather than the case first going to the court of appeals. Christie’s lawyers also asked Jacobson to put her ruling on hold, called a stay, while the appeal effort was ongoing.

On Thursday, Jacobson ruled that she would not grant a stay in the case during the appeal, which the Christie administration immediately appealed.

The state Supreme Court in Friday’s order both accepted the direct certification of the appeal and took over consideration of the stay request before the appeals court. The stay matter, per an earlier timeline set by the appeals court and adopted by the state Supreme Court, is expected to be resolved before the October 21 deadline set by Jacobson.

As I’ve noted in the past, in 2006 the New Jersey Supreme Court had ruled that denying the legal benefits of marriage to same-sex couples violated New Jersey’s Constitution, but left it to the Legislature to determine whether equality should be accomplished via legalizing same-sex marriage, or via civil unions that provided all of the legal benefits of marriage. The Legislature then passed a law legalizing civil unions. After the U.S, Supreme Court’s decision in United States v. Windsor, though, Garden State Equality filed a lawsuit in state court arguing that civil unions were no longer adequate to provide the equality that the State Supreme Court’s decision requires because civil unions. whether gay or straight, are not entitled to the benefits available to married couples under Federal Law. Judge Jacobson largely accept the Plaintiff’s arguments in her ruling. How the state Supreme Court will rule is unclear, but if they maintain the logic of their original decision it seems inevitable that they would rule to affirm her ruling.

Dale Carpenter comments:

In any event, my expectation is that gay marriage will be legal in New Jersey within six months.  The only question is whether that will occur by judicial decision or because supporters manage to get enough votes in the state legislature to override Governor Christie’s veto of a gay marriage bill.  The court’s speedy consideration of the issue is probably a good sign for Garden State Equality’s litigation, but may somewhat reduce the likelihood of legislative action.

There are two problems with the veto override option. First of all, if the legislature is going to do this, they have to do so before the end of the current session in December. If they fail to act, then the bill dies and they’d have to start all over again. More importantly, though, overriding the veto would require the Democrats to get two-thirds of the votes in both chambers and it seems unlikely they’re going to be able to do that in time. In the State Senate, they are three votes short of the necessary 2/3’s, and would need the support of at least three Republican State Senators to get to the needed number. In the Assembly, the task seems to be even harder. On its original run through that body, six Democratic Assemblymen voted against the bill. In order to get to the 2/3 that they need, Democrats would need to convince all six of those Democrats to change their vote and convince six Republicans who had voted against the bill to go along with them. Given that this vote would likely be occurring in a lame duck session after a massive Chris Christie victory, it seems unlikely that state-level Republicans are going to be willing cross the leader of their own party right after a massive victory.

There is a third option, of  course. Christie has said repeatedly that although he opposes the idea of same-sex marriage being imposed via judicial or legislative fiat, he would back a referendum that puts the matter before the people of the Garden State. Democrats and same-sex marriage advocates have resisted this option, even though polling makes it clear that support for legalizing same-sex marriage is over 60%. Indeed, if the matter were on the ballot it’s likely that it would pass overwhelmingly even while Christie is overwhelmingly reelected. Since that didn’t happen, the earliest the matter could be on the docket is November 2014. More likely than not, the Supreme Court will have ruled by then, though, and if things go as expected a referendum will be superfluous and New Jersey will become the 14th state to recognize same-sex marriage at some point within, as Carpenter notes, the next six months..

FILED UNDER: Gender Issues, Law and the Courts, US Politics, , , , ,
Doug Mataconis
About Doug Mataconis
Doug Mataconis held 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 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.


  1. rudderpedals says:

    Is the trial court’s refusal to enjoin the issue before trial the issue on appeal?

  2. rudderpedals says:

    /s/to enjoin the issue/to enjoin issuing marriage licenses/

  3. @rudderpedals:

    Yes, the Court has ordered briefing on the stay issue to be concluded by Friday. They well need to decide on that issue shortly thereafter since the current Trial Court Order states that marriages must commence beginning October 21st.

  4. rudderpedals says:

    @Doug Mataconis: Thank you

  5. Tyrell says:

    Just the other week Judge Kennedy said that too many cases are coming to courts that should be worked out. This has become the “litigation nation” . Many of these issues can be worked out if people put their heads together and come up with solutions that everyone can live with, even though they may not be completely happy. Form a committee that represents all sides and views of an issue, stay at it with the give and take, wheeling and dealing, sliding and shuffling, moving and maneuvering, faking and taking, bluffing and stuffing, until a deal is reached. This is done in business all of the time.
    Now it is head to court at the first instance of disagreement or dissatisfaction. If that was the thinking in the1940’s, Eisenhower would have to go to the Supreme Court to get approval for the D Day invasion.
    “Any society that relies on nine unelected judges to resolve the most serious issues of the day is not a functioning democracy,” Judge Kennedy.

  6. rudderpedals says:

    @Tyrell: If that was the thinking in the1940′s, Eisenhower would have to go to the Supreme Court to get approval for the D Day invasion.

    The Court would have been a lot easier to convince than the British who burned blood and treasure farting around the edges in the Med, much to Eisenhower’s chagrin.

  7. Grumpy Realist says:

    @Tyrell: This is a pretty stupid comment. The major difference between a privately negotiated agreement and a ruling of law is that the law applies to ALL similar cases down the road.

    When it comes to civil rights issues, no, we don’t let them reside in the area governed by private law. For obvious reasons.

    Tell me, do you understand anything about law at all? We’re a country that lives by this little thing called Common Law. You might want to learn about it some day.

  8. bill says:

    @Grumpy Realist: civil rights has nothing to do with same sex marriage- homosexuals are not some “minority”. and this is essentially a money play by a group who already has more disposable income than heterosexuals on average.
    but if we disagree with same sex marriage it’s because we’re “homophobes” and “haters”!