Same sex marriage remains a hot news item these days with the passage into law of the right to marry, most recently in Washington and in other states.  Within the past week or so, the New Jersey lawmakers passed a bill permitting same sex marriage, only for it to be swiftly vetoed, as promised, by Governor Christie who is proposing putting the issue to the voters.  The counter argument to that which is most often cited is that an issue of civil rights should not be put the voters.

On a parallel path is the pending law suit by Garden State Equality challenging the civil union statute as being discriminatory. The four court complaint Counts asserted, as follows:  Count I –  a denial of equal protection under Article I, Paragraph 1 of the New Jersey Constitution; Count 2 –  a denial of the fundamental right to marry under Article I, Paragraph 1 of the New Jersey Constitution; Count 3 – a denial of equal protection under the Fourteenth Amendment to the United States Constitution, in violation of 42 U.S.C. § 1983; and Count 4 – a denial of substantive due process under the Fourteenth Amendment of the United States Constitution in violation of 42 U.S.C. §

After motion practice, Counts 2, 3 and 4 were dismissed by Judge Feinberg.  However, a motion for reconsideration of the dismissal of Count 3 was filed.  That motion was decided yesterday.

In a very well reasoned opinion, Judge Feinberg reconsidered her order and reinstated Count 3.  As a result, same-sex couples will be allowed proceed with the case asserting that New Jersey is denying them equal protection of law under the federal constitution by limiting them to civil unions rather than marriage.  In the ultimate trial, same sex couples will have the opportunity to demonstrate that the Civil Union statute has failed to afford same-sex couples the same rights and responsibilities as heterosexual married couples.  Stay tuned for the next round in this fascinating litigation.

Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric practices in Fox Rothschild’s Roseland, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or