Outside the Beltway

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.

Doug Mataconis · Saturday, October 12, 2013 · 8 comments

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..