The state of New Jersey has responded to a suit from same-sex couples challenging the state’s civil unions law, refusing to take responsibility for the inequalities inherent in it. In a response filed Friday by the state Attorney General’s office, New Jersey officials blamed the federal government for not recognizing civil unions post-Windsor, ignoring the fact that it is the separate-but-equal status afforded same-sex couples that is responsible for the inequity:
Civil union partners are legally entitled to federal spousal benefits. It is therefore rational for the State to refused to sacrifice its sovereign prerogative to define marriage when such sacrifice is unnecessary. […]
If the Obama Administration fails to extend federal marriage benefits to civil union partners, then the federal government, not the State, will have violated Plaintiffs’ equal protection rights. Plaintiffs cannot point to any judicial authority for holding the State responsible for the constitutional dereliction of another Sovereign over whom it has no control, with whom it has no nexus, and with whom it is not jointly acting. In the absence of any such precedent, it is rational for the State to continue to adhere to its presumptively valid definition of marriage. […]
Plaintiffs have an expedition and complete remedy for any failure of the federal administration to extend federal marriage benefits to civil union partners. Plaintiffs can file an emergent motion in federal court seeking a declaration that they are legally entitled to such benefits.
There is something ironic about New Jersey defending the idea that same-sex couples do not deserve access to the word “marriage” while insisting that the words “husband,” “wife,” “spouse,” “widow,” and “widower” still all apply in civil unions. If none of those other words require reservation for opposite-sex couples only, then there’s no valid explanation for why “marriage” couldn’t also apply to same-sex couples.
Moreover, New Jersey cannot force the federal government to recognize civil unions. While some federal departments may yet recognize civil unions, the Office of Personnel Management has already stipulated that it will not when dispensing benefits to federal employees. By deferring responsibility, New Jersey officials are essentially hoping the federal government will grant a stamp of approval for its “separate but equal” status, though they have taken no steps to achieve this themselves. This suggests they don’t actually care if the federal government recognizes civil unions. Couples can file suit in federal court if they they feel they need to, but New Jersey isn’t going to act on their behalf.
The response also ignores that a state-appointed commission actually found that the civil unions law “creates a second-class status” for same-sex couples. The need to expedite this case for same-sex couples isn’t just because the federal government is now recognizing same-sex marriage. There were already complications with employers, insurance agencies, and hospitals not recognizing civil unions like they did marriage; the federal government is just the latest addition to that list. Given the number of federal benefits attached to marriage, this addition makes the inequality of civil unions all that more obvious.
New Jersey’s Supreme Court ruled that however the state recognizes same-sex couples, it must be equal to how it recognizes opposite-sex couples. It’s readily apparent at both the state and federal levels that same-sex couples cannot meet that standard under the civil unions law. The federal government defers to the states to define marriage, so only New Jersey can fix the inequality. Lawmakers actually tried, but Gov. Chris Christie’s (R) veto of marriage equality continues to hold these couples’ rights hostage.
(HT: Kathleen Perrin.)