Garden State Equal. v. Dow

• Decision Date: 27 September 2013
• Citation: 434 N.J.Super. 163,82 A.3d 336
• Parties: GARDEN STATE EQUALITY; Daniel Weiss; John Grant; Marsha Shapiro; Louise Walpin; Maureen Kilian; Cindy Meneghin; Sarah Kilian Meneghin; Eric Bradshaw; Tevonda Bradshaw; Teverico Bradshaw; Karen Nicholson McFadden; Marcye Nicholson McFadden; Kasey Nicholson McFadden; Maya Nicholson McFadden; Thomas Davidson; Keith Heimann; Marie Heimann Davidson; and Grace Heimann Davidson, Plaintiffs, v. Paula DOW, in her official capacity as Attorney General of New Jersey; Jennifer Velez, in her official capacity as Commissioner of the New Jersey Department of Human Services; and Mary E. O'Dowd, in her official capacity as Commissioner of the New Jersey Department of Health and Senior Services, Defendants.
• Court: New Jersey Superior Court

434 N.J.Super. 163

82 A.3d 336

GARDEN STATE EQUALITY; Daniel Weiss; John Grant; Marsha Shapiro; Louise Walpin; Maureen Kilian; Cindy Meneghin; Sarah Kilian Meneghin; Eric Bradshaw; Tevonda Bradshaw; Teverico Bradshaw; Karen Nicholson McFadden; Marcye Nicholson McFadden; Kasey Nicholson McFadden; Maya Nicholson McFadden; Thomas Davidson; Keith Heimann; Marie Heimann Davidson; and Grace Heimann Davidson, Plaintiffs,

v.Paula DOW, in her official capacity as Attorney General of New Jersey; Jennifer Velez, in her official capacity as Commissioner of the New Jersey Department of Human Services; and Mary E. O'Dowd, in her official capacity as Commissioner of the New Jersey Department of Health and Senior Services, Defendants.

Superior Court of New Jersey,

Law Division,

Mercer County.

Decided Sept. 27, 2013.

Held Unconstitutional

N.J.S.A. 37:1–28, 37:1–29, 37:1–30, 37:1–31, 37:1–32, 37:1–33, 37:1–34, 37:1–35, 37:1–36

Recognized as Unconstitutional

1 U.S.C.A. § 7

Lawrence S. Lustberg (Gibbons, P.C.), Newark, argued the cause for plaintiffs (Hayley J. Gorenberg (Lambda Legal) of the New York bar, admitted pro hac vice, on the brief).

Kevin R. Jesperson, Assistant Attorney General, argued the cause for defendants (John J. Hoffman, Acting Attorney General, attorney; Jean P. Reilly, Deputy Attorney General, on the brief).

Ronald K. Chen, Trenton, (Rutgers Constitutional Litigation Clinic Center for Law and Justice), for amici curiae (Edward Barocas (American Civil Liberties Union of New Jersey Foundation), of counsel and on the brief).

JACOBSON, A.J.S.C.

INTRODUCTION

Plaintiffs, a lesbian, gay, bisexual, and transgender (LGBT) rights organization called Garden State Equality, and six same-sex couples and their children, ask this court to enter summary judgment in their favor, by holding that the guarantees of equal protection contained in both the New Jersey and United States Constitutions require that civil marriage be extended to same-sex couples in New Jersey. Plaintiffs seek a ruling as a matter of constitutional law, not on the basis of a factual record, which is as of yet incomplete, but as a legal matter following the United States Supreme Court's decision in United States v. Windsor, ––– U.S. ––––, 133 S.Ct. 2675, 186 L.Ed.2d 808 (2013), which struck down the federal Defense of Marriage Act (DOMA), 1 U.S.C.A. § 7. Windsor held that the federal government must extend federal marital benefits to same-sex couples who are lawfully married in states that have granted same-sex couples the right to civil marriage. Since New Jersey offers same-sex couples civil unions and not marriage, plaintiffs claim that their status as civil union couples now deprives them of all the rights and benefits of marriage guaranteed to them under the New Jersey Constitution as interpreted by the New Jersey Supreme Court in Lewis v. Harris, 188 N.J. 415, 908 A.2d 196 (2006), and violates the federal Constitution as well. Defendants (“the State”) oppose the relief sought, essentially arguing that any deprivation caused to New Jersey civil union couples derives from the actions of the federal government and not from action by the State, which continues to provide equal marital rights and benefits to same sex couples though the Civil Union Act, N.J.S.A. 37:1–28 to–36. At the heart of the dispute is whether the rationale of Lewis requires extending civil marriage to same-sex couples in the wake of Windsor.

Whether there is a constitutional right to same-sex marriage is a debate that elicits strong responses from litigants, attorneys,and the public. The debate has also generated many close decisions by the courts—including the cases the parties rely upon heavily to make their arguments. Windsor was a 5–4 decision of the United States Supreme Court. While the New Jersey Supreme Court unanimously found that same-sex couples were entitled to all the rights and benefits of marriage in Lewis, the Justices split 4–3 as to whether same-sex couples had a fundamental right to marry under the State Constitution, with the majority finding no such fundamental right. Even the New Jersey Supreme Court's decision not to hear a motion in aid of litigant's rights in Lewis, following a report by the Civil Union Review Commission, led to a 3–3 vote of the Justices. The closeness of these decisions reflects the analytic difficulties faced by courts grappling with the sensitive legal and societal issues raised by these cases.

Justice Albin's opinion in Lewis focused on detangling the concept of entitlement to the rights and benefits of marriage from the right to the label of marriage, and limited the decision to the holding that same-sex couples are entitled to all of the rights and benefits of marriage regardless of what the New Jersey Legislature decided to call the same-sex union. See Lewis, supra, 188 N.J. at 451, 908 A.2d 196. The dissenters in Lewis, however, would have granted same-sex couples the right to marry in addition to providing the rights and benefits of marriage. Now this court must decide whether the label of marriage can no longer be withheld from same-sex couples—a label that has taken on new significance in light of the Windsor decision. While the Court in Lewis focused on equality of rights and thus did not address “the transformation of the traditional definition of marriage,” that definition is now squarely before this court. Lewis, supra, 188 N.J. at 451, 908 A.2d 196.

As noted in Lewis, rather than presume the correct legal structure to implement its decision, the Court deferred to the New Jersey Legislature to determine whether to amend the marriage statute to include same-sex couples or to create a separate statutory structure to afford same-sex couples all the rights and benefits of marriage. Id. at 457–58, 908 A.2d 196. The Legislature chose to create a parallel legal structure and to call the relationship a civil union. The ways in which same-sex unions have been implemented throughout the country have been varied. In some states, same-sex marriage was enacted through legislative action. See 79 Del. Laws 19 (2013); 2013 Minn. Laws 74; 2009 N.H. Laws 60 (codified in scattered sections of ch. 457 of N.H.Rev.Stat. Ann.); N.Y. Dom. Rel. Law § 10–a (Consol.2011); 2013 R.I. Pub. Laws 4; 2009 Vt. Acts & Resolves 3. In other states, courts interpreted their constitutions to require same-sex marriage. See In re Marriage Cases, 43 Cal.4th 757, 76 Cal.Rptr.3d 683, 183 P.3d 384 (2008)¹ ; Kerrigan v. Comm'r of Pub. Health, 289 Conn. 135, 957 A.2d 407 (2008); Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009); Goodridge v. Dep't of Pub. Health, 440 Mass. 309, 798 N.E.2d 941 (2003). Recently, same-sex marriage was approved by popular vote in three states. See Erik Eckholm, In Maine and Maryland, Victories at the Ballot Box for Same–Sex Marriage,N.Y. Times, Nov. 7, 2012, at P14; Gay Marriage Approved by Wash. Voters,Washington Post, Nov. 9, 2012, at A12. And, in addition to New Jersey, two other states currently grant same-sex couples civil unions that provide all or substantially all of the benefits of marriage. See Colo.Rev.Stat. § 14–15–102 to– 119 (2013); 750 Il. Comp. Stat. 75/1 to 75/90 (2013). Many of the states that now have same-sex marriage previously provided for civil unions. The landscape in 2013 is markedly different from the one that existed just seven years ago when Lewis was decided.

Many cases involving the right to same-sex marriage have raised thorny procedural issues, particularly as to standing and justiciability. See Hollingsworth, supra, ––– U.S. at ––––, 133 S.Ct. at 2668, 186 L.Ed.2d at 785 (holding that proposition backers did not have standing to defend California's anti-same-sex marriage referendum); Windsor, supra, ––– U.S. at ––––, 133 S.Ct. at 2688, 186 L.Ed.2d at 822 (holding that the Bipartisan Legal Advocacy Group had standing to defend DOMA). This case is no exception—the court must be sure that the case is justiciable and properly before the court before it can rule on the merits of plaintiffs' motion. In addition to justiciability concerns, the Windsor Court also addressed difficult issues of federalism. Here too, threads of federalism are woven throughout this motion, where plaintiffs are asking a state court to find that a state statutory structure is now illegal under the state constitution as a result of actions taken at the federal level.

The court is also faced with some rather complicated state action concerns. Plaintiffs argue that there is clear state action, maintaining that the State created a label distinct from marriage, and that this label is the cause of significant deprivations to plaintiffs. The State, on the other hand, asserts that the only action it was required to take under Lewis was to enact a statute extending the full panoply of rights and benefits of civil marriage to same-sex partners in an area—domestic relations—where the state has primacy and discretion to decide what rights to make available and what label to give to those rights. The State argues that the Civil Union Act met the mandate of Lewis and fulfills the State's obligations under the equal protection guarantees of the New Jersey and federal Constitutions. In regard to the state action arguments in particular, many of the issues that arise in this case are not only complex, but also unique. As a result, there is a dearth of helpful precedent to guide the court in making its decision. It is into this tangled thicket that this court must venture to resolve the issues raised by plaintiffs' motion.

PROCEDURAL HISTORY

This matter comes before the court by way of a motion for summary judgment filed by plaintiffs, Garden State Equality and six same-sex couples and their children, against defendants, the Attorney General of New Jersey, the Commissioner of the New Jersey Department of Human Services, and the Commissioner of the New Jersey Department of Health and Senior Services. ² Defendants are responsible for implementing,...