Some in New Jersey are preparing for the possibility that same-sex marriage will take effect on Monday, when a recent marriage equality decision from Judge Mary C. Jacobson is set to take effect. She rejected a request to stay her decision, and though the New Jersey Supreme Court has agreed to hear the case — skipping appellate consideration per Gov. Chris Christie’s (R) request — they have not yet issued a stay either. So, some New Jersey cities are going to begin issuing marriage licenses to same-sex couples Friday so that they can be validated Monday morning at 12:01 AM.
The state Health Department has ordered cities to wait until the Court provides guidance, but administrators in cities like Asbury Park and Jersey City say they want to be ready. Newark Mayor and Senator-Elect Cory Booker (D) also plans to start marrying same-sex couples just after midnight Monday morning, according to BuzzFeed.
It seems unlikely that the New Jersey Supreme Court would allow marriage equality to take effect before they have a chance to consider the case, unless of course they already believe it to be a foregone conclusion. They did rule unanimously in 2006 that the state’s ban on same-sex marriage was unconstitutional, but a majority of the justices believed that the legislature could decide whether to pass full marriage equality or civil unions to grant benefits to same-sex couples. Lawmakers chose civil unions, but since the U.S. Supreme Court overturned the federal Defense of Marriage Act, those civil unions quite blatantly deprive same-sex couples of federal benefits. Thus, the New Jersey Supreme Court’s decree that same-sex couples should have equal access to the benefits of marriage can now only be fulfilled by full marriage equality.
There is some precedent for same-sex couples being caught in such legal limbo in other states. In 2007, an Iowa district judge overturned the state’s ban on same-sex marriage, and one same-sex couple, Sean Fritz and Tim McQuillan, were able to find a judge to grant them a waiver of Iowa’s three-day waiting period and they legally married before the decision was stayed a day later. They remained the state’s only married same-sex couple until the Iowa Supreme Court upheld the decision in 2009. California similarly had to determine the legality of the roughly 18,000 same-sex marriages that had taken place in 2008 between when the California Supreme Court overturned the state’s ban and when Proposition 8 passed, reimposing a ban in the state constitution. Those marriages continued to be legal, though new couples could not marry.
Pennsylvania currently has 174 couples who were granted marriage licenses by a county official, even though state law bans same-sex marriage. It’s unclear whether those licenses are valid or whether those couples will be legally recognized by the state, a question the courts may have to resolve. Meanwhile, many same-sex couples are marrying throughout New Mexico, where the law does not address same-sex marriage one way or another. The federal government has said it will recognize those marriages as legal, but the New Mexico Supreme Court has not yet ruled on their validity.
The precedents suggest that if New Jersey same-sex couples begin marrying Monday, they may in fact be legally recognized, but the final answer to that question might remain in limbo until the Supreme Court rules.