Alan Schorr’s Employment Case of The Week ending October 18, 2013

Garden State Equality v. Dow, __ N.J. __ , M-208 N.J. Supreme Court, October 18, 2013

Thanks to this momentous Supreme Court decision, same sex couples will be able to marry in New Jersey as of today, Monday, October 21, 2013. One NELA-NJ member summed up the case succinctly: “Woo-Hoo!!” In this unanimous decision, the Supreme Court refused to stay a lower court ruling permitting same sex marriages to begin October 21, 2013, clearing the way for the first same sex marriages in the history of New Jersey.

The court battle for gay marriage began with the New Jersey Supreme Court opinion in Lewis v. Harris, 188 N.J. 415 (2006). In that decision, the Supreme Court stopped short of ordering same sex marriage, but demanded that same sex couple be afforded equal rights. The Supreme Court ruled that (1) same-sex marriage is not a fundamental right entitled to protection under the liberty guarantee of the New Jersey Constitution; (2) committed same-sex couples must be afforded the same rights and benefits enjoyed by married opposite-sex couples; and (3) the Legislature would be required to, within 180 days, either amend the marriage statutes or enact a statutory structure affording same-sex couples the same rights and benefits enjoyed by married opposite-sex couples.

The Legislature passed the Civil Union Act in December 2006, which went into effect February 2007. Governor Corzine said that he would sign a same sex marriage bill during the lame duck session of 2009, but the Senate was unable to pass it. In February 2012, both houses passed a same-sex marriage bill, but Governor Christie vetoed. In the meantime, every other state in the Northeast, except for Pennsylvania, had sanctioned same sex marriages.

The big legal break came from the United State Supreme Court in U.S. v. Windsor, 133 S.Ct. 2675 (2013). In that case, a woman married under the law of New York State was forced to pay inheritance tax because of the Federal Defense of Marriage Act (“DOMA”), which defined “marriage” as only between a man and a woman. The majority opinion (Kennedy) held that restricting U.S. federal interpretation of “marriage” and “spouse” to apply only to heterosexual unions, by Section 3 of the Defense of Marriage Act (DOMA), is unconstitutional under the Due Process Clause of the Fifth Amendment.

That set the stage for this case. While Lewis v. Harris directed that same sex couples must be afforded equal rights, the Civil Union Act clearly did not accomplish that. After U.S. v. Windsor, the Federal government was required to recognize persons married under State law, but they did not have to recognize persons in a Civil Union as being married. Garden State Equality brought suit on behalf of a group of same sex couples and their children, alleging that the New Jersey Civil Union Act did not accomplish what was required by Lewis v. Harris because couples in a civil union did not gain the Federal rights afforded to married couples and their children.

On July 3, 2013, Judge Mary Jacobson in Mercer County granted summary judgment in favor of the plaintiffs and ordered New Jersey to permit same sex marriages no later than October 21, 2013. The Christie administration appealed directly to the Supreme Court seeking a stay of Judge Jacobson’s order. The Supreme Court agreed to hear the request for stay on an expedited basis. On October 18, 2013, the Supreme Court, in a loud and unanimous voice, rejected Christie’s request for a stay and ordered that same sex marriages must be permitted to go forward even though the Supreme Court had not yet made a final decision.

The Supreme Court, in denying the stay, clearly signaled that there is no way that the State will ultimately prevail in this lawsuit. The Court denied injunctive relief holding that the State did not demonstrate a likelihood of success on the merits, could not demonstrate irreparable harm to the State, since the marriages could later be rescinded, like what happened in California, and finally, that the harm befalling New Jersey same sex couples greatly outweighed any harm to the State.

So what does all of this have to do with employment law? Everything. Among the injustices cited by the Supreme Court, partners in a civil union cannot claim leave under the Family and Medical Leave Act if a partner becomes sick or injured; they cannot get health benefits as a “spouse” of a federal employee; and they cannot get certain Medicare benefits, including services in a skilled Nursing facility for a spouse. The Court also noted that this not only detrimentally affects the same sex couples, but their children as well.

So Court-approved marriages began at 12:01 a.m. on October 21. Within hours, facing the certainty of Court defeat and the Legislative override of his veto, Governor Christie withdrew his appeal, which means that same-sex marriage is and will remain legal in New Jersey.

The fight for equal rights for homosexuals is far from over. Title VII, the federal law prohibiting discrimination on the basis of race or gender, provides no protection against discrimination on the basis of sexual orientation. Millions of homosexuals in other states still struggle as second class citizens. But this is certainly a time to celebrate in New Jersey. Let the wedding bells ring. Woo Hoo!!

Plaintiffs’/Respondents’ Counsel: Lawrence S. Lustberg, Benjamin Yaster, and Hayley J. Gorenberg.

Defendant’s/Appellant’s counsel: Jean P. Reilly, John J. Hoffman, Kevin R. Jesperson, and Robert T. Lougy.

Superior Court Judge: Mary C. Jacobson, J.S.C.

Supreme Court Justices (unanimous): Chief Justice Rabner (on the opinion), Justices Albin, Patterson, Hoens, LaVecchia, and Judges Rodriguez and Cuff (temporarily assigned).