Same-sex marriage in New Jersey

Statutory recognition of same-sex unions in New Jersey is limited to civil unions as of October 18, 2013, but same sex weddings shall temporarily become legal on October 21, 2013 under court order, pending a final ruling by the state Supreme Court. A bill to legalize same sex marriage was vetoed in 2012, but the legislature still has a chance to override the veto. In September 2013, a state trial court issued a ruling legalizing same sex marriage (in the case of Garden State Equality v. Dow), to take effect October 21, 2013. The state appealed this ruling and the state Supreme Court agreed to hear the appeal directly from the trial court, bypassing the lower court of appeals. The state also requested a stay of execution of the ruling, which the state Supreme Court denied on October 18. In the near future, there are two ways that same sex marriage could become permanently legal in New Jersey: the legislature could override the governor's veto of the same sex marriage bill, or the state Supreme Court could uphold the Superior Court's ruling.

New Jersey was one of the first states to implement a domestic partnerships scheme, after California, in 2003. Advocates of same sex unions sued to transcend domestic partnership in the case, Lewis v. Harris in 2006. The judges struck down the domestic partnership arrangement, and split four to three to allow the legislature to pass civil unions instead of allowing same-sex marriage. In December 2006, the New Jersey Legislature passed a bill providing for civil unions and recognizing other states' civil unions.

Reports by the New Jersey State Bar Association and local newspapers have found that civil unions are not widely recognized and fail to provide equal treatment. The Civil Union Review Commission created by the Civil Union Act has also found this, and recommends gender-neutral marriage laws as a remedy.

In late 2009, lame duck Governor Jon Corzine stated that he would sign a bill legalizing same-sex marriage if it came to his desk before he left office, while his newly elected Republican successor Chris Christie said that he would promote a constitutional amendment to ban same-sex marriage. However, the political situation at the time made such an amendment unlikely, and Gov. Christie now supports a public vote on same-sex marriage; while he is personally opposed to it, he has promised not to revisit the same-sex marriage issue if it is legalized by popular vote.

A same-sex marriage bill was introduced to the legislature but was defeated in the Senate on January 7, 2010. A similar bill passed both houses of the legislature in February 2012 but was vetoed by Christie. Under New Jersey law, the legislature has until the end of the session in which it passed the bill to override a governor's veto. Therefore, the legislature has until January 2014 to override the veto.

On September 27, 2013, Superior Court Judge Mary C. Jacobson ruled that the state must allow same-sex couples to marry, in light of the ruling by the U.S. Supreme Court in United States v. Windsor. Jacobson said that as of October 21, 2013, the state "shall permit" same-sex couples to marry. Governor Chris Christie's administration appealed Judge Jacobson's ruling and also requested a stay of its execution. The New Jersey Supreme Court accepted the appeal.

On October 18, 2013, the state Supreme Court rendered a provisional, unanimous (7-0 vote) order denying the stay, thereby temporarily authorizing same-sex marriage in the state, pending its hearing of the state's appeal in early 2014.

Domestic partnerships

The New Jersey Legislature enacted the Domestic Partnership Act, P.L.2003, c. 246, on January 12, 2004, which came into effect on July 10, 2004. The law made domestic partnerships available to all same-sex couples, as well as to different-sex couples aged 62 and older. The domestic partnership statute provides "limited healthcare, inheritance, property rights and other rights and obligations" but "[does] not approach the broad array of rights and obligations afforded to married couples." For example, as Lambda Legal states, the law "required health and pension benefits [only] for state employees—it was voluntary for other employers—and did not require family leave to care for an ill partner."

The domestic partnership statute remains in place even though New Jersey has since enacted a civil union statute. Couples in an existing domestic partnership are not required to enter a civil union. However, new domestic partnerships are available only to couples in which both partners are 62 and over, whether same-sex or different-sex.

Civil unions

Lewis v. Harris

Main article: Lewis v. Harris

On October 25, 2006, the Supreme Court of New Jersey unanimously ruled in Lewis v. Harris that the "unequal dispensation of rights and benefits to committed same-sex partners can no longer be tolerated under our State Constitution." With the Harris decision, same-sex couples were granted the same rights, benefits and responsibilities as heterosexual couples with respect to their relationships.

While the decision was widely reported as a 4-3 split, the differences between the Justices on the Court were on whether only the provision of civil marriage rights to same-sex couples would resolve the constitutional defect, or whether another change in statute would pass constitutional scrutiny. The Court avoided the question of what to call the legal status, leaving that to, as the majority stated, the "crucible of the democratic process."

The dissent, led by then-Chief Justice Deborah T. Poritz, chastised the junior members of the Court who said that anything other than marriage would provide equal rights: "What we name things matters, language matters...Labels set people apart surely as physical separation on a bus or in school facilities...By excluding same-sex couples from civil marriage, the State declares that it is legitimate to differentiate between their commitments and the commitments of heterosexual couples. Ultimately the message is that what same-sex couples have is not as important or as significant as real marriage, that such lesser relationships cannot have the name of marriage."

The court gave the state legislature six months to enact legislation providing for civil unions.

Civil Union Act

On December 14, 2006, the New Jersey Legislature passed a bill providing for civil unions which was signed into law by then-Governor Jon Corzine on December 21, 2006. The Civil Union Act came into effect on February 19, 2007.

Same-sex couples who enter into a civil union are provided almost all of the rights granted to married couples under New Jersey state law. However, under the provisions of the federal Defense of Marriage Act or DOMA, same-sex couples in civil unions and domestic partnerships do not have any right or entitlement to the 1,138 rights that a married couple has under federal law. Section 3 of DOMA, which prohibits federal recognition of same-sex marriages, was struck down by the Supreme Court in 2013.

The law provides for the creation of a Civil Unions Review Commission that will evaluate the law's effectiveness and any problems resulting therefrom, and will report every six months for three years following enactment to assess the impact of the law. The first meeting of the Civil Unions Review Commission took place on June 18, 2007. The Commission elected a chair, Frank Vespa-Papaleo, the current Director of the New Jersey Division of Civil Rights, and the Commission plans on meeting monthly as well as conducting periodic public meetings.

According to the new civil union law, when a same-sex couple receives a civil union, their domestic partnership is automatically terminated by the civil union. However, those couples who remain in domestic partnerships and elect to not enter into a civil union will be allowed to remain as domestic partners. New domestic partnerships can still be formed if both partners are 62 years of age or older.

Civil unions in practice

The New Jersey State Bar Association (NJSBA) took a formal position against the adoption of Civil Unions law, citing inherent and obvious problems and confusion the law has for the state's citizens and the legal representation. In addition, the NJSBA formally endorsed the marriage bill proposed by openly gay Assemblyman Reed Gusciora, saying that only marriage equality would meet the standard mandated by the Lewis decision.

During the first 90 days after the law went into effect, 852 same-sex couples entered civil-unions, according to the New Jersey Department of Health and Senior Services. During the same period, the LGBT civil rights organization Garden State Equality reported that it has received complaints from 102 couples denied benefits by employers or insurers. On May 22, 2007, the Star-Ledger reported that the New Jersey Division on Civil Rights has received at least 270 inquiries from couples in civil unions denied benefits by employers or insurers. As of June 18, 2007, only two complaints had been filed with the New Jersey Division of Civil Rights, it was reported at the first meeting of the Civil Unions Review Commission.

According to the LGBT civil rights organization Garden State Equality, by the end of July 2007, 211 of the 1,358 couples who had entered New Jersey civil unions since February 19 had "reported to Garden State Equality that their employers refused to recognize their civil unions." Among the companies flouting state law were shipping companies UPS, FedEx, and DHL, as well as a number of Fortune 500 companies.

A UPS spokesman claimed that language in its collective bargaining agreement with the Teamsters union prevented it from extending benefits to same-sex partners. On July 20, 2007, Gov. Jon Corzine sent a letter to UPS officials on behalf of a UPS driver and her partner, asking the company to comply with New Jersey law and extend spousal benefits such as health insurance to civil union partners. On July 30, a UPS spokesman said: "We have received clear guidance that, at least in New Jersey, the state truly views civil union partners as married. We've heard that loud and clear from state officials and we're happy to make this change." The company also noted that it already offers equal benefits to married same-sex couples in Massachusetts and would review its policies in Connecticut and Vermont.

Same-sex marriage

Beginning March 5, 2004, D. Kiki Tomek, deputy city clerk of Asbury Park, processed same-sex marriage licenses for several days. A deputy mayor married one couple on March 8 and then Tomek heeded a warning from the state attorney general to stop issuing such licenses.

The commission formed to review whether civil unions brought equality to same sex couples determined that civil unions have failed to provide equal treatment. On December 10, 2008, the Commission released its unanimous finding that marriage laws should be made gender neutral to ensure equal treatment of same-sex couples. Governor Corzine had indicated that he would sign a bill to allow same-sex marriage.

Legislation

On December 7, 2009, the New Jersey Senate Judiciary Committee approved a civil marriage equality bill by a vote of 7 to 6, after seven hours of testimony and debate. It was amended in committee to clarify that clergy would not be required to perform weddings for same-sex couples. On January 7, 2010, the New Jersey State Senate defeated the measure in a 20-14 vote.

On February 13, 2012, The State Senate passed a bill legalizing same-sex marriage by a vote of 24 to 16, and on February 16, the Assembly passed it by a vote of 42 to 33, with three Republicans and one Democrat not voting, and one Democratic seat temporarily vacant. In neither house was the bill passed by a veto-proof majority. Governor Christie vetoed the bill the next day and called for a constitutional amendment for same-sex marriage to be presented to the voters as a ballot referendum.

On February 21, 2013, state Democratic leaders announced plans to hold a vote to override the governor's 2012 veto. The legislation needs 3 additional votes in the Senate and 12 in the House. Democratic legislative leaders exchanged charges with Christie in July. Senate President Stephen Sweeney said the Governor was intimidating some Republicans who supported same-sex marriage and State Senator Barbara Buono, the Democratic candidate for governor, said Christie the "one man in New Jersey ... that stands in the way of marriage equality". Christie said in response: "If you want to change the core of a 2,000-year-old institution, the way to do that is to put it in front of the voters in the state of New Jersey and let them vote." Several legislators who did not vote on the bill or voted against have indicated they would support a veto override.

Garden State Equality v. Dow

Preliminary hearings

On July 26, 2010, the New Jersey Supreme Court declined a request on the part of the plaintiffs in Lewis v. Harris that it review whether the legislature had complied with the court's order in that case. It said it wanted the challenge to begin in a lower court where a trial record could be developed. Lewis, 202 N.J. 340 (2010). On June 29, 2011, Lambda Legal filed suit in the Law Division of Superior Court in Mercer County on behalf Garden State Equality, seven same-sex couples, and several of their children, arguing that New Jersey's civil unions do not provide the same rights as marriage as required by the court's decision in Lewis, 188 N.J. 415; 908 A.2d 196 (2006). The named defendant is Paula Dow, the (now former) Attorney General of New Jersey.

Superior Court Judge Linda Feinberg, ruling on motions in this new case, captioned as Garden State Equality v. Dow, initially dismissed the plaintiffs' claim that their federal equal protection rights were violated when they were denied marriage licenses, but later reinstated it for consideration by the trial court. On July 3, 2013, the plaintiffs filed a motion for summary judgment, arguing that the U.S. Supreme Court's June 26 decision in United States v. Windsor means that civil unions are not equivalent to marriage because same-sex couples in civil unions do not have access to the same federal benefits available to married couples. A hearing on the summary judgment motion was held on August 15, 2013.

Trial court ruling

On September 27, 2013, New Jersey Superior Court Judge Mary Jacobson, granting summary judgement to the plaintiffs, ruled that the state must allow same-sex couples to marry. Unless a higher court rules otherwise, or grants a stay, the effective date of Judge Jacobson's order legalizing same-sex marriage in New Jersey is October 21, 2013.

In her ruling, Judge Jacobson states "Since Windsor, the clear trend has been for [Federal] agencies to limit the extension of benefits to only those same-sex couples in legally recognized marriages." She points out that many of these agencies, including the IRS, CMS, and DOL, that are extending benefits to same-sex couples in a marriage, do not recognize New Jersey civil unions for benefits purposes. She points out that the proper issue before the court is whether the New Jersey civil union scheme is unconstitutional because "of the manner it is applied and incorporated by the Federal government." She goes on to reason that this disparate treatment of civil unions versus marriage raises an equal protection claim under both state and Federal constitutions, but only if a state action led to this situation. Because New Jersey enacted a civil union statute that created a "parallel" structure to marriage (the state action) and the N.J. Supreme Court deferred to the Legislature on the actual label "as long as the classifications do not discriminate arbitrarily among persons similarly situated," the situation ended up changing post-Windsor. This change leads to Judge Jacobson's determination that "the parallel legal structures created by the New Jersey Legislature therefore no longer provide same sex couples with equal access to the rights and benefits enjoyed by married heterosexual couples, violating the mandate of Lewis and the New Jersey Constitution's equal protection guarantee."

Appeal and application for stay

Governor Chris Christie immediately stated that his administration will appeal the ruling, and the Acting Attorney General, by letter to the state Supreme Court, requests any appeal to be fast-tracked or taken directly to the high court. On September 30, 2013, a notice of appeal by the defendants was lodged with the Superior Court of New Jersey, Appellate Division, and docketed as A-0521-13. This notice lists possible issues that the state will raise on appeal, and includes: that Garden State Equity et. al. (respondents) have not established beyond a reasonable doubt that N.J.'s civil union law runs afoul of the Constitution; that the trial court has not exercised maximum caution in granting summary judgement in a far-reaching case in violation of precedent; that under Windsor, civil union spouses are indeed entitled to federal marriage benefits; and that the respondents' equal protection claims fail because the state has a rational basis for enforcing existing civil union law.

On October 1, 2013, Judge Jacobson issued a scheduling order pertaining to an application for a stay by the state. The order gives the state until the end of the day October 1 to file its application, with the plaintiffs' reply to be filed on October 4, and the state to optionally file a reply on October 7. The state waived oral arguments on the application. The state followed this up by timely filing a Notice of Motion to Stay the judge's order pending appeal, along with a brief in support of its motion. The state's brief lists among the following reasons for granting a stay: that the state will suffer irreparable injury if same-sex marriage is allowed, that Garden State Equity et. al.'s (plaintiff's) claim raises unsettled questions of Constitutional law, that the state has a reasonable probability of success in its appeal. The state's motion does not list any particular injury that N.J. will suffer if it enacts same-sex marriage, only citing an in-chambers opinion of Chief Justice Roberts when the U.S. Supreme Court was deciding Maryland v. King, 133 S.Ct. 1: "Any time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury." However, it is unclear if N.J. will be prevented from effectuating its civil union statute if Judge Jacobson's order is allowed to stand, as civil unions in New Jersey are equivalent to marriage in everything except name.

On October 4, as directed by the judge's scheduling order, the plaintiffs filed a Brief in Opposition to the state's motion to stay same-sex marriage until after appeals are heard. The plaintiffs' brief lists among the following reasons for denying a stay: First, that the state makes an argument, unsupported by New Jersey law, that irreparable harm flows automatically from any injunction issued against a state (this is in reply to the quote taken from Justice Roberts that appears in the state's brief; quoted above.) Second, that this case does not present a question of unsettled law like the state contends. Law concerning same-sex marriage in New Jersey was made crystal-clear by the state supreme court in Lewis v. Harris. Third, the plaintiffs contend that the state is likely to fail in its claims. Finally, plaintiffs argue that public interest requires a stay to be denied; stating "an issue of public importance does not per se require a stay. Moreover, to allow the [s]tate to violate the [p]laintiffs' constitutional rights can never be in the public interest."

In an order dated October 10, Judge Jacobson denied the state defendants' motion for a stay. She reasoned that the irreparable harm argument that the state makes with its reliance on King is "largely abstract...which pales in comparison to the concrete harm caused to the [p]laintiffs," who suffer from the denial of many federal benefits, and a massive litigation burden to challenge federal acceptance of New Jersey–specific civil unions in regards to these benefits.

Recognition of out-of-state relationships

New Jersey recognizes some same-sex relationships contracted out of state as either equivalent to and having the same legal force as New Jersey civil unions, where they "provide substantially all the rights and benefits of marriage", or as equivalent and having the same legal force as New Jersey domestic partnerships, where they "provide some but not all of the rights and obligations of marriage".

Economic impact of extending marriage to same-sex couples

A UCLA study estimates the potential economic impact of same-sex marriage on the State of New Jersey and concludes that the gain would be substantial. If New Jersey were to give same-sex couples the right to marry, that is marriage itself and not civil unions, the State would likely experience a surge in spending on weddings by same-sex couples who currently live in New Jersey, as well as an increase in wedding and tourist spending by same-sex couples from other states. The analysis outlined in detail in the report predicts that sales by New Jersey’s wedding and tourism-related businesses would rise by $102.5 million in each of the first three years when marriage for same-sex couples is legal. As a result, the State’s gross receipt tax revenues would rise by $7.2 million per year, and 1,400 new jobs would be created in relevant industries.

Public opinion

Same-sex marriage in New Jersey

Polling Firm	Month	Link	Favor	Oppose
Quinnipiac	July 2013	[1]	60	31
Rutgers-Eagleton	June 2013	[2]	59	30
Quinnipiac	March 2013	[3]	64	30
Public Policy Polling	November 2012	[4]	53	36
Quinnipiac	February 2012	[5]	57	37
Rutgers-Eagleton	February 2012	[6]	54	35
Quinnipiac	January 2012	[7]	52	42
Rutgers-Eagleton	October 2011	[8]	52	39
Rutgers-Eagleton	August 2011	[9]	52	32
Public Policy Polling	July 2011	[10]	47	42
Quinnipiac	November 2009	[11]	46	49
Rutgers–Eagleton	November 2009	[12]	50	42
Quinnipiac	April 2009	[13]	49	43
Zogby International	August 2008	[14]	50	42
Zogby International	August 2007	[15]	48.1	44.6
Rasmussen Reports	July 2006	[16]	42	54
Rutgers-Eagleton	June 2006	PDF	49	44
Zogby International	February 2006	[17]	56	39
Zogby International	April 2005	HTML	54.5	40.1
Rutgers-Eagleton	September 2003	PDF	43	50
Zogby International	July 2003	[18]	55	41

Not all polling questions are the same. The 2009 Rutgers poll that found more support asks if voters will accept a decision by the legislature to legalize same-sex marriage, while the 2006 Rasmussen Reports survey that found more opposed asks whether voters personally define marriage as a union of a man and a woman or between a union of two people. A Zogby International poll conducted in April 2005 asked about same-sex couples married outside of the state. 57.5% felt the marriages should be recognized, 37.2% thought the State shouldn't recognize them, and 5.3% weren't sure. New Jerseyans supported civil unions in 2006 before the passage of the Civil Unions Act, with 66% in favor and 29% opposed.

A July 2011 Public Policy Polling survey found that 81% of New Jersey voters supported legal recognition of same-sex couples, with 41% supporting same-sex marriage and 40% supporting civil unions, while only 17% opposed all legal recognition and 2% were not sure.

New Jersey trends mirrored national trends, in that women, young people, Latinos, people with a college education, and people who know gay men and lesbians were more supportive of same-sex marriage than men. The elderly, blacks, people without a college education, and those who do not know any gay men or lesbians were most opposed. However, same-sex marriage was not seen as an "important issue" by the latter groups, and the Eagleton Institute found that they were not likely to be source of opposition to the bill if it passed. In New Jersey, a majority of Democrats support same-sex marriage, a majority of Republicans are opposed, and a majority of Independents favor same-sex marriage.

See also

• LGBT rights in New Jersey

External links

• Garden State Equality's "Practical Guide to Civil Unions"
• Text of New Jersey Civil Unions Bill (long PDF document)
• Frequently Asked Questions, links to pages on requirements for domestic partnerships, civil unions, and marriages, New Jersey Department of Health and Senior Services, March 20, 2007
• Lambda Legal FAQ
• "NJ Ag Issues Opinion on Marriage Recognition," February 16, 2007
• Garden State Equality