On Friday, September 27, 2013, the Hon. Mary Jacobson, sitting in Mercer County, declared the New Jersey Civil Union law unconstitutional in the case of Garden State Equality v. Dow.  The basis of the decision stems from the United States Supreme Court’s decision is United States v. Windsor, which invalidated article 3 of the Defense of Marriage Act and required federal benefits be provided to people that have entered into valid same sex marriages.  Post Windsor, it became clear that federal benefits would be granted to those in a “marriage” but not a “civil union.”  As such, New Jersey residents in a civil union no longer (if they ever did) have the same rights and benefits that opposite sex couples had which were guaranteed by the New Jersey Supreme Court in Lewis v. Harris.

Judge Jacobson’s conclusion wonderfully summarizes her decision, way better than I could have.  It is as follows:

Plaintiffs’ motion for summary judgment is granted. Under the New Jersey Supreme Court’s opinion in Lewis v. Harris, 188 N.J. 415 (2006), same-sex couples are entitled to the same rights and benefits as opposite-sex couples. The Lewis  Court held that the New Jersey Constitution required the State to either grant same-sex couples the right to marry or create a parallel statutory structure that allows those couples to obtain all the same rights and benefits that are available to opposite-sex married couples. The New Jersey Legislature chose the latter option when it adopted the Civil Union Act. Since the United States Supreme Court decision in

United States v. Windsor,      U.S. , 133 S. Ct. 2675, 186 L. Ed. 2d 808 (2013), invalidated the
Defense of Marriage Act, several federal agencies have acted to extend marital benefits to same-sex married couples. However, the majority of those agencies have not extended eligibility for those benefits to civil union couples. As a result, New Jersey same-sex couples in civil unions are

no longer entitled to all of the same rights and benefits as opposite-sex married couples. Whereas before Windsor same-sex couples in New Jersey would have been denied federal benefits regardless of what their relationship was called, these couples are now denied benefits solely as a result of the label placed upon them by the State.

The ineligibility of same-sex couples for federal benefits is currently harming same-sex couples in New Jersey in a wide range of contexts: civil union partners who are federal employees living in New Jersey are ineligible for marital rights with regard to the federal pension system, all civil union partners who are employees working for businesses to which the Family and Medical Leave Act applies may not rely on its statutory protections for spouses, and civil union couples may not access the federal tax benefits that married couples enjoy. And if the trend of federal agencies deeming civil union partners ineligible for benefits continues, plaintiffs will suffer even more, while their opposite-sex New Jersey counterparts continue to receive federal marital benefits for no reason other than the label placed upon their relationships by the State. This unequal treatment requires that New Jersey extend civil marriage to same-sex couples to satisfy the equal protection guarantees of the New Jersey Constitution as interpreted by the New Jersey Supreme Court in Lewis. Same-sex couples must be allowed to marry in order to obtain equal protection of the law under the New Jersey Constitution.

Along with the decision, the Judge entered an Order directing that the ruling go into effect on October 21, 2013.  The judge noted that this ws to give the State “… adequate time to prepare to effectuate this ruling or
to pursue appellate remedies….”

Given the magnitude of the decision and other things going on in the politcal landscape, most people expect an appeal.  If so, the question is whether the matter will bypass the Appellate Division and go directly to the Supremen Court.


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 is resident in Fox Rothschild’s Roseland and Morristown, New Jersey offices, though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.