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Same-sex marriage (SSM) in New Jersey via the state courts

2011-NOV to JUL: "Garden State Equality v. Dow"
lawsuit proceeds in Superior Court. Recap.

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Earlier information about this case

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In this web site:
"SSM" refers to same-sex marriage;
LGBT refers to lesbians, gays, bisexuals, and transsexuals

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2011-NOV-04: State Superior Court rules that the case can proceed:

  • Back in 2006, the state Supreme Court ruled that same-sex couples must have access to the same rights and privileges as are routinely given to married opposite-sex couples. In response, the legislature later created a system of civil unions which theoretically give same-sex registered couples the same state protections and benefits routinely given to opposite-sex married couples. Same-sex couples in civil unions were ineligible at the time for any of the 1,138 federal benefits and protections. Even if they were permitted to marry by the state, they would remain ineligible because of the federal Defense of Marriage Act (DOMA).

As of 2013, New Jersey and six other states provide civil unions for same-sex couples, but no access to marriage . Although civil unions sound workable in theory, they have proven to be inadequate in practice:

  • Some same-sex partners have been unable to make emergency decisions for their spouses in hospitals, or even to visit them.

  • Their employers often refuse to extend health benefits to their spouses.

  • One of the plaintiffs, Danny Weiss, 46, of Asbury Park NJ, said that staff in an New York hospital emergency room would not recognize his civil union with his partner, John Grant. In 2010. Grant was hit by a car and nearly died. Weiss said:

    "We are one of those victims of this failed experiment. We’re doing this because I don’t want any other couple to have to go through this."

The case "Garden State Equality v. Dow" is based on the claim that the state's civil unions have failed to give same-sex couples the same rights as opposite-sex married couples. The case was argued on the basis of equality clauses in the state Constitution and also on the 14th Amendment of the Federal Constitution.

On 2011-NOV-04, Superior Court Assignment Judge Linda Feinberg ruled that the same-sex couple plaintiffs do not have a fundamental right to marry under state law. However, they can proceed with their case in an attempt to prove that the state's civil union law does not give them state benefits equal to those enjoyed by opposite-sex married couples.

She rejected the testimony of Assistant Attorney General Robert Lougy who sought to have the case dismissed.  He had argued that the civil union system was working well. If some same-sex couples had personal problems with hospitals and employers, they could simply claim that the latter were violating the law. He argued:

"If there are violations of the statute, that doesn’t render the statute unconstitutional, your honor."

Judge Feinberg ruled:

"I don’t think that the court can remain silent and take no action if ... the result is that those benefits are not equal in the protections."

She dismissed the claim that the civil unions violated the federal Constitution's guarantees of due process and equal protection. However, she allowed the couples to continue the case on the basis of their claim that the civil unions are unconstitutional under the state constitution because the rights they deliver are unequal to those that married couples receive.

Steven Goldstein, chairman of Garden State Equality, described the ruling as:

"... a sweet moment ... It is time for the state of New Jersey to end the evil experiment of civil unions that is failing same-sex couples."

John Tomicki, president of the New Jersey Coalition to Preserve and Protect Marriage -- a group whose main function is to deny marriage to same-sex couples -- criticized Garden State Equality because they have gone from the court system to the legislature and back to the courts without any successes. Tomicki suggested that the best solution would be a referendum in which the voters could decide whether the state constitution should be amended to allow same-sex marriage. 1,2,3

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2012-FEB-21: Superior Court Judge reinstates validity of argument:

Superior Court Assignment Judge Linda Feinberg formally ruled that the plaintiffs can argue in court that denying same-sex couples access to marriage by only allowing them to enter into civil unions violates both the New Jersey constitution and the U.S. Constitution. This argument had previously been dismissed.

Jon Davidson, legal director at Lambda Legal -- a group promoting marriage equality -- said:

"We are pleased that the New Jersey Superior Court will allow us to show how civil unions fail to provide to same-sex couples the equality promised by both the New Jersey Constitution and the 14th Amendment of the U.S. Constitution."

"Having both a state and federal equal protection claim will only make our case stronger. We look forward to presenting a complete record of the discrimination that New Jersey's same-sex couples and their children face because of their relegation to civil unions rather than marriage." 4,5

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2013-JUL-03: Garden State Equality files court request asking for immediate legalization of SSMs:

About a week after the U.S. Supreme Court's ruling in Windsor v. United States, Garden State Equality (GSE) -- a coalition of marriage equality groups in New Jersey -- filed a request with the Mercer County Superior Court for a summary judgment on behalf of the seven same-sex couples who are plaintiffs in the Garden State Equality v. Dow case, and also on behalf of some of their children. GSE noted that:

"Married same-sex couples in states that respect their marriages are eligible for the complete, vast array of [1,138] federal rights, benefits and obligations. New Jersey denies these numerous federal benefits to same-sex couples."

Seven years earlier, during 2006-OCT, New Jersey's Supreme Court noted that the state constitution requires New Jersey to guarantee all of its  citizens equal protection of the laws, regardless of sex. They ruled that same-sex couples were entitled to receive all of the privileges of marriage.

A hearing was scheduled to handle the request for a summary judgment on AUG-15. 5,6

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2013-SEP-27: Recap of marriage equality in New Jersey to date:

  • In 2006, the New Jersey Supreme Court ruled in Lewis v. Harris that the state Constitution requires that same-sex couples, and their children, be given the same rights, privileges, and protections as married opposite-sex couples.

  • The Legislature created a system of civil unions that, in theory, gave registered couples the same state rights, privileges, and protections as opposite-sex married couples. In practice, like all other "separate but equal" arrangements, it has proven to be separate but unequal.

  • In 2013-JUN, the U.S. Supreme Court repealed the key section of the federal Defense of Marriage Act, (DOMA) in a case called Wilson v. United States. The ruling gave married same-sex couples and their children throughout the U.S. access to 1,138 federal programs on a par with opposite-sex married couples. However, these same programs are inaccessible to same-sex couples in civil unions, which has been the only option open to same-sex couples in New Jersey.

  • Same-sex couples in New Jersey can only receive the few hundred state rights, privileges and protections. If they were allowed to marry, they would have access to 1,138 federal benefits -- on a par with married opposite-sex couples.

  • Therefore, it would seem that the only ruling that a New Jersey state court could logically make is that the state constitution requires that same-sex couples be able to marry. Judge Mary C. Jacobson of the State Superior Court in Mercer County made that ruling in a case called Garden State Equality v. Dow case which was launched by seven same-sex couples on behalf of themselves and their children.

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This topic continues in the next essay

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. MaryAnn Spoto, "N.J. judge OKs suit seeking gay marriages over civil unions," The Star-Ledger, 2011-NOV-05, at: http://www.nj.com/
  2. Joe Wolverton, II, "N.J. Court Allows Homosexual Marriage Suit to Proceed," New American, 2011-NOV-09, at: http://thenewamerican.com/
  3. "Gay Marriage Lawsuit Moving Forward In New Jersey," WCBS, 2011-NOV-04, at: http://newyork.cbslocal.com/
  4. Geoff Mulvihill, "Part of gay marriage suit is reinstated," Associated Press, 2012-FEB-22, at: http://articles.philly.com/
  5. Carlos Santoscoy, "New Jersey Judge Reinstates Federal Claim In Gay Marriage Suit," On Top magazine, 2012-FEB-22, at: http://www.ontopmag.com/
  6. Joseph Patrick McCormick, "US: Supporters call on judge to immediately legalise equal marriage following Supreme Court ruling." Pink News, 2013-JUL-03, at: http://www.pinknews.co.uk/

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Site navigation: Home > Homosexuality > Same-sex marriage > SSM Menu > New Jersey > here

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Copyright © 2011 to 2013 by Ontario Consultants on Religious Tolerance
Originally posted: 2012-JAN-09
Latest update: 2013-SEP-29
Author: B.A. Robinson

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