Clearing the way for same-sex couples to get married in New Jersey next week, the state supreme court on Friday refused to delay a judge’s order that will open marriage and all of its benefits to those couples.  The unanimous opinion denying a plea by state officials for postponement is here.

Licenses will be available on Monday, making New Jersey the fourteenth state, along with the District of Columbia, to allow such marriages — provided the new order is only a prelude to a formal equality ruling.   The state court said it will continue in January to review the issue, but its opinion Friday concluded that the state so far “has not shown a reasonable possibility” that it ultimately will succeed.

New Jersey Governor Chris Christie issued this statement through his press secretary, Michael Drewniak: “The Supreme Court has made its determination.  While the governor firmly believes that this determination should be made by all the people of the state of New Jersey, he has instructed the Department of Health to cooperate with all municipalities in effectuating the order of the Superior Court under the applicable law.”

The practical as well as the legal effect of the state court ruling was to leave intact a decision last month by Superior Court Judge Mary Jacobson of Trenton, ordering officials to start granting marriage licenses this coming Monday.  Her ruling was based on state constitutional law — as bolstered by the U.S. Supreme Court’s June decision in United States v. Windsor – and thus can only be reviewed in higher state courts.

Judge Jacobson’s decision was not a ruling that the New Jersey state constitution guarantees same-sex couples an explicit right to marry, but that a state guarantee that they are entitled to all of the benefits of marriage cannot exclude the civil legal option of marriage itself.  She relied upon the Supreme Court’s Windsor decision as laying the foundation for a right to marry, in order to enjoy the full benefits of the marital status.

The judge also had relied upon a 2006 decision by the state supreme court, declaring that the state constitution guarantees same-sex couples all of the benefits of marriage, except marriage itself.  The state legislature reacted to that by guaranteeing equal benefits, but only for same-sex couples who join in “civil unions,” short of marriage.

On Friday, the state supreme court applied the same logic as Judge Jacobson in refusing to delay her ruling while the justices review it, speaking through an opinion written by Chief Justice Stuart Rabner and signed by the other six sitting and temporarily assigned members.

At the heart of the dispute, the opinion said, “are certain core facts and principles.” It then cited its 2006 decision in Lewis v. Harris as guaranteeing equality to same-sex couples, noted that federal agencies in the wake of the Windsor decision had extended marital benefits to already-married same-sex couples but not those in civil unions, concluded that as a result couples in civil unions do not enjoy full equality, and declared that “the state constitution’s guarantee of equal protection is therefore not being met.”

It said that it was denying the state’s stay request “largely for the reasons stated” by Judge Jacobson when she denied a stay earlier this month of her September 27 decision.

The Chief Justice wrote: “The state has advanced a number of arguments, but none of them overcome this reality: same-sex couples who cannot marry are not treated equally under the law today.  The harm to them is real, not abstract or speculative.”

In evaluating where “the public interest” stood on the issue, the opinion said: “Like Judge Jacobson, we can find no public interest in depriving a group of New Jersey residents of their constitutional right to equal protection while the appeals process unfolds.”

While refusing to disturb Judge Jacobson’s order to start the issuance of marriage licenses to same-sex couples on Monday, the state Supreme Court noted that it would proceed to review the state’s appeal of her ruling at a sitting in January.

Presumably, that will give state officials a chance to offer additional arguments to try to get the Jacobson ruling overturned.  On the other side of the case is an advocacy organization, Garden State Equality, and six same-sex couples.  The couples and the advocacy group began a legal challenge to the denial of marriage two years ago.

Posted in Cases in the Pipeline, Featured, Same-Sex Marriage

Recommended Citation: Lyle Denniston, Same-sex marriage reaches New Jersey, SCOTUSblog (Oct. 18, 2013, 4:01 PM), http://www.scotusblog.com/2013/10/gay-marriage-reaches-new-jersey/