New Jersey Judge: Same-Sex Couples Have The Right To Marry

A New Jersey judge ruled Friday that same-sex couples have a constitutional right to marry under the state constitution, ordering marriage equality will take effect on October 21, 2013 — assuming the decision is not stayed. The decision does not overturn the civil unions law, but asserts that same-sex couples must also have the right to marriage, including all the federal benefits now associated with it post-Defense of Marriage Act:

The ineligibility of same-sex couples for federal benefits is currently harming same-sex couples in New Jersey in a wide range of contexts: civil union partners who are federal employees living in New Jersey are ineligible for marital rights with regard to the federal pension system, all civil union partners who are employees working for businesses to which the Family and Medical Leave Act applies may not rely on its statutory protections for spouses, and civil union couples may not access the federal tax benefits that married couples enjoy.

And if the trend of federal agencies deeming civil union partners ineligible for benefits continues, plaintiffs will suffer even more, while their opposite-sex New Jersey counterparts continue to receive federal marital benefits for no reason other than the label placed upon their relationships by the State. This unequal treatment requires that New Jersey extend civil marriage to same-sex couples to satisfy the equal protection guarantees of the New Jersey Constitution as interpreted by the New Jersey Supreme Court in Lewis. Same-sex couples must be allowed to marry in order to obtain equal protection of the law under the New Jersey Constitution.

Judge Mary C. Jacobson countered the state’s claims that it wasn’t responsible for the federal government choosing not to recognize civil unions for federal marriage benefits. In fact, she specifically held the state accountable for creating a separate-but-equal status for same-sex couples:


The reality of the deprivations faced by plaintiffs is that the State has indeed played a role in plaintiffs’ alleged constitutional harms. By statutorily creating two distinct labels — marriage for opposite-sex couples and civil unions for same-sex couples — New Jersey civil union partners are excluded from certain federal benefits that legally married same-sex couples are able to enjoy.

Consequently, it is not the federal government acting alone that deprives plaintiffs of federal marriage benefits — it is the federal government incorporating a state domestic relations structure to make its determinations, and it is that state structure that plaintiffs challenge in this motion. That structure may not have been illegal at the time it was created — indeed, the parallel marriage/civil union statutory scheme was specifically sanctioned in advance by Lewis — but it was certainly an “action” of the State.

New Jersey would become the 14th state to recognize same-sex marriage. The decision follows a New Jersey Supreme Court decision that required same-sex couples to have access to all the same benefits of opposite-sex couples, except the word marriage. The state legislature chose instead to extend civil unions, but the federal benefits that have been offered since the U.S. Supreme Court overturned DOMA have not applied to civil unions, which are not accounted for in federal statutes.

The decision is expected to be appealed, first to an intermediate court, and then to the state Supreme Court.