Gay marriage can begin in New Jersey, for now, state's top court rules

The New Jersey Supreme Court on Friday opened the way for the first time for gay and lesbian couples in the state to get married starting next Monday, Oct. 21.

With a stroke of the judicial pen, New Jersey joined 13 other states and the District of Columbia in allowing same-sex couples to marry.

The 7-to-0 ruling is only preliminary, with the court set to hear arguments on the merits of the case in early January. But the sharp tone of Friday’s 20-page opinion leaves little doubt that the justices are likely to uphold an earlier judge’s ruling that the New Jersey constitution requires that the state permit same-sex couples to marry.

“We find that the compelling public interest in this case is to avoid violations of the constitutional guarantee of equal treatment for same-sex couples,” the court said. “The state argues that we should give the democratic process a chance to play out rather than act now. When courts face questions that have far-reaching social implications, there is a benefit to letting the political process and public discussion proceed first,” the court noted.

But the justices added: “When a party presents a clear case of ongoing unequal treatment, and asks the court to vindicate constitutionally-protected rights, a court may not sidestep its obligations to rule for an indefinite amount of time.”

“Under those circumstances, courts do not have the option to defer,” they said.

The issue was not whether same-sex couples have a constitutional right to marry. That will be decided after January’s argument session. The issue on Friday was simply whether same-sex couples could begin getting married before the court hears the appeal.

Nonetheless, gay rights activists were quick to praise the court’s actions as historic and important.

“Next Monday will be a historic day for New Jersey,” said Udi Ofer, executive director of the ACLU-NJ.

“The Supreme Court has recognized what we all know – that marriage equality is the only path forward for New Jersey,” he said. “Civil unions prevent loving and committed same-sex couples from being treated equally. They never have been and never will be equal to marriage.”

Evan Wolfson, founder and president of Freedom to Marry, said the decision is another step not only toward equal rights for gay and lesbian couples but also toward full acceptance in American society.

“Every day, every wedding, every protection made available will show that families are helped and no one is hurt when gay couples share in the freedom to marry,” Mr. Wolfson said in a statement.

The high court case stems from a challenge to New Jersey’s civil union law. That law provides that gay couples must be afforded all the rights and privileges of opposite-sex married couples, although without the label of marriage.

In 2011, six same-sex couples and a gay rights group, Garden State Equality, filed suit challenging the civil union law. They argued that it fails to provide equal treatment.

The case moved into high gear last summer after the US Supreme Court struck down a portion of the federal Defense of Marriage Act. That law had barred same-sex married couples from receiving 1,200 federal benefits available to heterosexual couples.

In striking down the law, the US Supreme Court said that it is up to the states to define who is married and that the federal government cannot deny equal benefits to same-sex couples who are lawfully married in their home states.

Lawyers in the New Jersey case applied that holding with an interesting twist. The US Supreme Court case involved married same-sex couples, but not those in civil unions. Federal agencies have continued to deny federal benefits to civil union couples.

Nonetheless, lawyers for the same-sex couples argued that because the New Jersey constitution requires that civil union spouses be treated equally with opposite-sex couples, the constitution requires that they be able to receive the same federal benefits.

The lawyers argued that the state must make good on the demands of the New Jersey constitution. To do so they would have to allow same-sex couples to marry.

Last month, Superior Court Judge Mary Jacobson agreed, finding that the state constitution required that result. She did not stop there. She ordered the state to permit same-sex marriages – beginning Oct. 21.

The state appealed the decision directly to the state Supreme Court. Acting Attorney General John Hoffman also asked the court to postpone the Oct. 21 deadline. He had argued that because the underlying issues in the case are complex and unsettled, the court should wait to decide the pending case before allowing same-sex marriages to take place in New Jersey.

“When novel constitutional issues with highly significant policy considerations, far-reaching implications, and countervailing principles are involved, a court should make every effort to facilitate meaningful appellate review,” he wrote in his brief. 

The New Jersey justices brushed aside Mr. Hoffman’s points. “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,” their decision said.

Hoffman had also argued that once the court allowed same-sex marriages, nothing could undo them. In rejecting that argument, the justices noted that the California Supreme Court had acted to nullify some 4,000 marriages that had been performed in that state without proper legal authorization.

The New Jersey high court concluded that same-sex couples are guaranteed equal treatment and that the constitutional requirement is not being met. The justices said the consequences could be severe. “If a civil-union partner passes away while a stay is in place, his or her surviving partner and any children will forever be denied federal marital protections,” they wrote.

The fight for same-sex marriage isn’t just in the courts in New Jersey. The state legislature passed a same-sex marriage bill in 2012, but Gov. Chris Christie (R) vetoed it.

Gay rights activists are working to assemble enough votes to override the veto by a Jan. 14 deadline.

The state Supreme Court case, Garden State Equality v. Dow, is set for argument on Jan. 6 or 7.