New Jersey Trial Judge Rules State Must Recognize Same-Sex Marriage

An historic same-sex marriage ruling out of New Jersey.


A state trial judge in New Jersey has ruled, based in large part on a 2006 decision from the New Jersey Supreme Court and the United States Supreme Court’s recent ruling in United States v. Windsor, that the Garden State must recognize same-sex marriage statewide:

A New Jersey judge ruled on Friday that the state must allow same-sex couples to marry, saying that not doing so deprives them of rights that were guaranteed by the United States Supreme Court in June.

It is the first time a court has struck down a state’s refusal to legalize same-sex marriage as a direct result of the Supreme Court ruling, and with lawsuits pending in other states, it could presage other successful challenges across the country.

The decision was a rebuff to Gov. Chris Christie, a Republican who vetoed a bill passed by the Legislature last year that would have allowed same-sex couples to marry. His office said it would appeal to the state’s highest court. And he is likely to seek a stay preventing same-sex marriages from beginning on Oct. 21, as the judge ordered.

New Jersey was particularly ripe for a challenge after the Supreme Court ruling, because of a previous ruling by the state’s highest court in 2006. In that decision, in the case Lewis v. Harris, the New Jersey Supreme Court ruled unanimously that same-sex couples were entitled to all of the rights and benefits of marriage. But the court stopped short of saying they had a fundamental right to marry, and in an unusual step instructed the Legislature to define how to confer equal protection.

“The ineligibility of same-sex couples for federal benefits is currently harming same-sex couples in New Jersey in a wide range of contexts,” Judge Mary C. Jacobson of State Superior Court in Mercer County wrote on Friday. “Same-sex couples must be allowed to marry in order to obtain equal protection of the law under the New Jersey Constitution.”

Legislators had responded to the 2006 court ruling by passing a bill to allow civil unions, but same-sex couples sued again, arguing that civil unions denied them many benefits, particularly in health care decisions and financial matters.

The United States Supreme Court’s ruling in June striking down the federal Defense of Marriage Act meant that the federal government must provide the same benefits to gay married couples as it does to heterosexual married couples. Justice Anthony M. Kennedy noted in his opinion that the ruling was “confined” to legal marriages, and several federal agencies have since said that partners in civil unions would not be extended benefits, including those having to do with immigration, tax status and health care. Thirteen states and the District of Columbia allow gay couples to marry.

The same-sex couples in New Jersey pressed for a fast judgment after the Supreme Court’s decision. Judge Jacobson agreed with the plaintiffs that the federal decision demanded a change in New Jersey, to abide by the state’s earlier ruling recognizing equal protection for gay couples.

“Under these circumstances, the current inequality visited upon same-sex civil union couples offends the New Jersey Constitution, creates an incomplete set of rights that Lewis sought to prevent, and is not compatible with ‘a reasonable conception of basic human dignity,’ ” she wrote, quoting from the earlier State Supreme Court decision.

While the decision is limited to New Jersey, gay rights advocates said that it would help fuel the argument that marriage is a fundamental right for gay couples.

“Other states may not have a Lewis decision that says that not giving same-sex couples an equal footing violates the Constitution, but I think that argument is available, and a vibrant argument to make,” said Hayley Gorenberg of Lambda Legal, who argued the New Jersey case on behalf of Garden State Equality and six gay and lesbian couples and their children.

The federal decision, she said, “made the freedom to marry even more urgent than before because the state stood between these families and a host of federal protections, benefits, rights and responsibilities.” She hailed Judge Jacobson’s ruling as “thrilling.”

Over at The Volokh Conspiracy,Will Baude is a bit skeptical about the logic of the Court’s ruling:

Both sides of the litigation agree that same-sex couples are entitled to access all of the same benefits as united heterosexual couples. That’s a consequence of the New Jersey Supreme Court’s interpretation of the state constitution in Lewis v. Harris. From 2006-2013, that obligation was satisfied by civil unions, which have the exact same effect under state law as marriage does.

At the same time, it is now evident that at the federal level, same-sex couples in civil unions are not receiving the same benefits as married same-sex couples. (This was a little less clear at the time New Jersey wrote its main brief, but the most recent agency actions pretty uniformly favor marriages over civil unions.)

So this is clearly a problem. The question is what to do about it. The plaintiffs want the state to let them get married. If same-sex couples can get married, they can get federal benefits. The state, by contrast, wants to blame the problem on the federal government. If the agencies would just recognize civil unions, the problem would go away.

This is actually a pretty interesting severability problem. If a constitutional problem arises because of the intersection of two different legal rules, how does a court decide which one to invalidate?

In this case, for example, you might say:

– The court should invalidate the state law; after all, one of the claims is brought under the state constitution, and under the Supremacy Clause, the state constitution can only be enforced against state law, not against federal law.

On the other hand, you might instead say:

– The court should invalidate the federal agency rulings. First of all, you can do that without reaching any constitutional questions, because there’s a plausible argument that purely as a matter of statutory interpretation, civil unions count as marriages and spouses under federal law. (I’ve briefly described this argument here.) Second of all, even if you have to reach a constitutional issue in this case, there’s a federal constitutional claim too, so you can invalidate the federal rulings instead.

Of course the Plaintiff’s in this case weren’t asking the Court to invalidate the Federal Agency rulings that Civil Unions weren’t entitled to equal treatment with marriages when it comes to the provision of benefits under Federal Law. Additionally, from what I’ve been able to determine, it doesn’t appear that the state was making this argument in their pleadings with the Court either, at least not very forcefully. That, combined with the fact that the case was being heard in a New Jersey trial court rather than Federal Court for what seem to be pretty obvious reasons of legal strategy, made it more likely that the Court would focus more on the state law issue raised (marriage) than on the Federal law issue (whether the distinction between civil unions and marriage under Federal Law is justifiable), Had this matter been brought in a Federal Court, the legal case likely would have evolved much differently. Again, this is why I suggest that the choice to bring the case in state court was more than just a coincidence, the Plaintiffs in this case are looking, ultimately, for a ruling from the State Supreme Court that says that, in light of Windsor, their 2006 ruling that gays and lesbians must receive the same benefits as straight married couples now means that that New Jersey must recognize same-sex marriage. This would be a significant change from 2006 when the Court essentially left the issue of how to resolve the inequality, a move that led the legislature to adopt civil unions in response.

Given that it’s an election year in New Jersey, and that the Governor of the state is an often mentioned potential candidate for President in 2016, the ruling immediately led to a discussion of the political consequences:

The ruling heightens the political drama for Mr. Christie, who is up for re-election in November, and is considered a leading candidate for his party’s nomination for president in 2016.

His Democratic opponent, State Senator Barbara Buono, called the ruling “a stark reminder that Governor Christie stands on the wrong side of history.”

“The courts have spoken and the people have spoken,” Ms. Buono added. “It is time for Chris Christie to stop blocking equal rights for all New Jerseyans.”

But the court ruling might not work against him in a presidential campaign as he courts conservative voters in key primary states. He frequently rails against the New Jersey Supreme Court as too liberal, and has tried to fill it with judges who would rule more conservatively on issues like affordable housing and school financing.

If the appellate court rules against him on same-sex marriage, and even opponents believe there is a strong chance it will, Mr. Christie could simply campaign against activist judges. He could even ask the appellate court to push the case immediately to the State Supreme Court for quick resolution.

When Mr. Christie vetoed the same-sex marriage bill, he urged lawmakers to put the issue before voters. The Democratic-led Legislature declined, saying that questions of civil rights should not be subject to a referendum.

The governor’s office, in a statement on Friday, signaled that he intended to make the Legislature, if not the courts, his boogeyman. “Since the Legislature refused to allow the people to decide expeditiously, we will let the Supreme Court make this constitutional determination,” the statement said.

In other words, the Administration is going to appeal this decision and continue to defend existing state law — which, again, allows civil unions for gays and lesbians and give them the same rights under state law as married couples — until the Supreme Court of New Jersey has had a chance to rule on the matter. Given that it is an interpretation of that court’s landmark decision that is at issue here, this seems entirely appropriate to me. Politically, meanwhile, it’s doubtful that Christie’s decision to pursue an appeal is going to hurt him in the upcoming Governor’s election and, as far as 2016 goes, it may actually help him with a GOP base that has been skeptical about him.

Here’s the Court’s opinion:

Garden State Equality et al v. Dow et al by dmataconis

FILED UNDER: 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


  1. Gromitt Gunn says:

    It will be interesting to see how it works out. I thought that this lawsuit was one of the most logical results of the DOMA decision as soon as it was announced, given the 2006 ruling and the fact that civil unions are no longer equivalent to marriage for NJ residents.

  2. Matt Bernius says:

    I suspect that Christie could not be happier about this.

    First, as pointed out, it gives him multiple Red Meat issues to campaign on.

    Secondly, given his “Liberal” Republican tendencies* and his aspirations for higher office, I think he’d love to find a way to get Gay Marriage passed in his state without ever having to touch the issue. That’s why, for example, the one article notes that:

    When Mr. Christie vetoed the same-sex marriage bill, he urged lawmakers to put the issue before voters.

    A ballot referendum or court decision takes the entire thing out of his hands. Legislation on the other hand, will always force him to veto in order to maintain his current party cred. And a veto override would make him look weak.

    * – this is assuming that Christie’s gay marriage veto had more to do with political expediency than personal views. It’s entirely possible that he is personally opposed to the idea. However, based on my limited experience of the man, that doesn’t feel like it is probably the case.

  3. @Matt Bernius:

    The other factor to keep in mind is that the Democrats do not presently have the votes to override Christie’s veto. On the initial vote in the legislature there were several Democratic defectors who voted “No” on the SSM bill. To override, they’d need to get those votes back AND get (if I remember the count right) about a half dozen Republicans to vote to override as well. That’s probably why it’s not going to happen.

    And you can take Christie’s statements on SSM for what they are. He’s said he’s personally opposed, but that he would support putting a referendum on the ballot (too late to do that for 2013, obviously) and would abide by the people’s decision. Based on all the recent polling in NJ, such a referendum would pass overwhelmingly. Given that, I have to think that there’s also some politics at play in the refusal of the Democrats in control of the legislature to go forward on the referendum idea

    I agree with you, though, that this is playing out in a manner that will probably end up causing minimal political damage to Christie. In the end, I think the NJ Supreme Court will uphold this decision, mostly because the partisan balance on the court has not really changed since 2006.That could happen as early as some time in 2014.

  4. @Matt Bernius:

    Looks like I already ran the numbers on an override in a previous post:

    There’s just one problem facing Democrats, and it’s the fact that they presently don’t have the votes on their own to override a veto. They’re three votes short in the State Senate and at least six votes short in the General Assembly. In the Assembly, six of Democratic members voted against the bill so they would need to pick up twelve votes there to override the veto, including all six of the Democrats who originally voted against the bill. In other words, overriding the veto isn’t going to be easy at all.

  5. Matt Bernius says:

    @Doug Mataconis:
    Doug, I agree that a veto would be highly unlikely. My only point is that any veto override is a defeat for the executive branch. That’s all.

    If Christie’s truly opposed to the prospect, the court path provides the best way for him to lose the battle while winning the war. I have a hard time seeing how he takes any damage from it at all. After all, the general Republican line for years has been that the courts are out of control. There’s little the executive can do to change that. Instead of damage, my bet is that Christie actually benefits from this path (the point of my comment) — as there are no real downsides for him.

    Also, I agree that the choice to not take it to a ballot referendum was a political issue. The answer could be as simple as that path wouldn’t allow a party to take credit for the legislation. That said, as a philosophical issue, I’m personally opposed to most ballot referendums (in particular on civil rights related issues) as I think they tend to set a dangerous precedent and lead to not-so-well-thought-out policies becoming law.

  6. @Matt Bernius:

    I don’t like the idea of ballot referenda deciding issues like this either, and I don’t really have much of a problem with the Courts doing so (see e.g., Loving v. Virginia). At the same time, though, as someone who supports marriage equality, I’m also interested in the quickest path to get to an acceptable result. Just last November three states used ballot initiatives to legalize SSM and one (Minnesota) used it to reject a ballot measure that would’ve enshrined an SSM ban in the state Constitution. In the end, that was good news. In most states that presently ban SSM, ballot initiatives would be a long, slogging process and Court action is probably the best course of action. In others, like New Jersey, a referenda might be the quickest and easiest way to get to the desired end state. In some sense, it doesn’t matter how you get to the right result as long as you get there.

  7. James Pearce says:

    @Doug Mataconis:

    In some sense, it doesn’t matter how you get to the right result as long as you get there.

    Hear hear!

  8. Matt Bernius says:

    @Doug Mataconis:

    At the same time, though, as someone who supports marriage equality, I’m also interested in the quickest path to get to an acceptable result.

    Agreed with everything you wrote, and in particular this passage. It’s always a give and take between practical expediency and philosophical purity. And when you already have a given right, it’s easy to give too much attention to “philosophical purity.”

    As a side note, in discussing the latter, I tend to rank things as follows:
    1. Amending Federal Constitution
    2. Amending State Constitution
    3. Federal Legislation or State Legislation
    4. Supreme Court Decision
    5. State Ballot Referendum
    6. State Court Decision

    I don’t have issues with court decisions, but *when possible* I think legislative action is always preferable. And if a direct public vote is involved, I think the Constitutional Amendment process is always far superior to the ballot referendum process — if for no other reason than it’s more difficult to navigate. In this sense I’m very much a conservative in terms of my thought process.

  9. Ron Beasley says:

    While I support same sex marriage I think it’s much better if it’s approved at the ballot box rather than an edict from a judge.

  10. Ben says:

    @James Pearce:

    While there’s something to be said for expedience, I find the idea that civil rights should be allowed to be put to a popular vote to be a terrifying proposition, and one that could set up some monstrous outcomes in some states.

  11. @Ron Beasley:

    Why as to this specific issue? Would you have felt the same way in the 1960s about interracial marriage?

  12. Matt Bernius says:


    While there’s something to be said for expedience, I find the idea that civil rights should be allowed to be put to a popular vote to be a terrifying proposition, and one that could set up some monstrous outcomes in some states.

    Not *could*, it already has — including in California, arguably one of the most progressive states in the nation. A well timed referrendum can completely screw over the larger movement and require a lot of work to overcome (see Prop 8).

    Everyone loves referendums when they go the way a side wants. Everyone hates them when the go against them.

  13. James Pearce says:


    I find the idea that civil rights should be allowed to be put to a popular vote to be a terrifying proposition

    I do too.

    What I’m high-fiving here is the the idea that the “right result” is more important than the process.

  14. Laurence Bachmann says:

    @Ron Beasley: I couldn’t disagree more. The Constitution affords me all of the rights of heterosexuals because I am an American. Not because a majority approves of affording me those rights

    Further, if my rights are subject to approval, who else needs an okay from a majority? I agree that legislative approval is helpful in convincing skeptics but that is all. The reason we have courts–state and federal–is precisely to make rulings like this.

    If our treatment of immigrants, American Indians and minorities teaches us anything it is that politicians will gladly sacrifice a minority rights for expedience sake. Presumably, judges are a line of defense against political indifference or public antipathy.

  15. Matt Bernius says:

    @Laurence Bachmann:

    I agree that legislative approval is helpful in convincing skeptics but that is all. The reason we have courts–state and federal–is precisely to make rulings like this.

    While I agree in principle, it should be noted that often Judges are counted among the skeptics whose decisions are influenced by legislation.

    There’s evidence to suggest that, for example, that Justices on the Supreme Court routinely drag their feet when it comes to hearing wide ranging issues until there’s been significant legislative, court, and other cultural actions on a given topic.

    While the courts are a critical remedy, they don’t exist in a bubble. Ultimately that’s why any significant change in legal social norms typically happens through challenges and actions in multiple venues.

  16. grumpy realist says:

    @Ron Beasley: The problem with allowing civil rights via ballot box rather than legislation/court decisions is shown in the whole Loving vs. Virginia decision. It wasn’t until over a decade after that decision that approval of interracial marriage was over 50%.

    Plus there’s always the fact that you’re at the whim of the majority. If the populace decides to change its mind and suddenly take away some of your rights, what do you do?