Jesse Bachir is a second year law student at Durham Law School. He blogs at Queer Human Rights.
On October 21st at 12:01am EST, dozens of couples across New Jersey prepared to exchange vows as equal marriage finally came to New Jersey. Later that same day, it was announced that New Jersey Governor Chris Christie would drop his appeal against equal marriage to the New Jersey Supreme Court after a motion for a stay of execution of the lower court’s decision was denied. Following this, the Christie administration announced it would institute equal marriage as being the law New Jersey.
Civil Unions in New Jersey
This victory in New Jersey comes after more than a seven years of fighting for equal marriage rights. Back in 2006, the Supreme Court of New Jersey decided in Lewis v. Harris that, under the New Jersey State Constitution, same-sex couples were entitled to all the same legal rights and benefits as opposite-sex married couples. However, the Supreme Court left it up to the legislature as to whether or not to grant marriage or a similar union granting to same legal rights and benefits to same-sex couples. The legislature chose the latter and created civil unions.
It is likely that the reason the Supreme Court left this discretion to the legislature is the Defence Of Marriage Act, which was still in force back in 2006. Under DOMA, up until it was overturned by the Supreme Court decision in US v. Windsor earlier this year, marriage was defined as being between a man and a woman, and so federal marriage rights were reserved for those in opposite sex marriages. This meant that, regardless of whether or not New Jersey gave same-sex couples marriage or a supposedly identical institution, such as civil unions, they would not receive any federal benefits or federal recognition of their union. As such, the New Jersey Supreme Court thought it wise to defer to the legislature – helping also to avoid any potential public backlash against the Court.
Civil unions were subsequently enacted in the state – but all was not well. As Brown v. Board of Education told us, separate is unequal. Civil unions did not provide all the same rights and benefits as marriage – some national insurance providers, for example, only recognized formal marriage as allowing spousal coverage; partners could not see their loved ones in the hospital; pension benefits were not passed on to same-sex partners; the list goes on and on.
Challenging Civil Unions
Lambda Legal, on behalf of Garden State Equality and seven same-sex couples, filed a lawsuit in a New Jersey Superior Court in June 2011, Garden State Equality v. Dow, challenging the State’s implementation of civil unions rather than equal marriage. The law suit claimed that civil unions did not, in fact, grant the same rights and privileges as marriages and therefore did not comply with the Supreme Court’s ruling in Lewis.
While Garden State Equality v. Dow was still pending, both Chambers of the State Legislature passed a bill legalizing same-sex marriage in February of 2012. Unfortunately, however, the bill was vetoed by Governor Chris Christie. It was later announced that the Legislature would attempt to override Christie’s veto by obtaining a two-thirds majority vote in both Chambers.
The big breaking point came once DOMA was overturned in June 2013 by the United States Supreme Court in Windsor, opening up Federal marriage benefits to all couples. Immediately following the US Supreme Court’s ruling in Windsor, Lambda legal filed for summary judgment claiming that civil unions do not allow same-sex couples access to Federal marriage benefits and this violated the ruling in Lewis.
Shortly thereafter, on the momentum of the numerous wins across the United States for equal marriage in other states, and the strike down of DOMA, a coalition of human rights organizations (Human Rights Campaign, Garden State Equality, Freedom to Marry and the American Civil Liberties Union just to name a few) joined together to launch New Jersey United for Marriage. The aim of the campaign was, through citizen involvement and mobilisation, to put political pressure on the New Jersey legislature to vote to override Governor Christie’s veto of equal marriage.
Denying the stay of execution
On September 27th 2013, Superior Court Judge Mary Jacobson granted summary judgment stating that civil unions were unconstitutional because they violated Lewis in not allowing same-sex couples access to Federal marriage benefits. In her ruling, she stated that equal marriages were to begin in New Jersey starting on October 21st. The Christie Administration immediately applied for appeal to the New Jersey Supreme Court, as well as requesting a stay of execution until oral arguments could be heard by the NJ Supreme Court in January. The stay of execution was denied by Judge Mary Jacobson, the decision to stay was therefore also appealed by the Administration to the Supreme Court.
The New Jersey Supreme Court issued its ruling on the application for a stay of execution on October 18th, stating that the Administration’s arguments were considered and the Court found them unlikely to succeed based on, inter alia, the Lewis jurisprudence. Therefore the stay was denied and marriage were scheduled to commence the following Monday.
On that Monday, October 21st, after marriages had already started commencing and after realizing that the Court had essentially rejected the arguments of the Administration’s opposition to equal marriage, Christie announced that he had dropped the appeal to the Supreme Court and would fully implement equal marriage in the State. Faced with wide pressure, Christie finally surrendered to equality.