As noted briefly in last Friday’s post that contained a video interview of me discussing the status of same sex marriage in New Jersey that is on LXBN TV, the Supreme Court denied the State’s motion for a stay of Judge Jacobson’s Order that required same sex marriages to take place starting today.

As noted in today’s New York Daily News, Mayor Corey Booker presided over 7 same sex marriage ceremonies some time after midnight.

Getting back to the Supreme Court’s decision, it is not all of the time that you get a lengthy opinion from an appellate court with a decision on a motion.  Very often, you just get an order saying that a motion is granted or denied.  Here, the court, Chief Justice Rabner authored a 20 page opinion that was joined by all of the other justices and the two Appellate Division judges that are temporarily assigned to the Supreme Court.  Though the standards for a stay are different than the standards to consider at the time of the ultimate resolution of the case, there were parts of the opinion which maybe, just maybe, will be a precursor of the ultimate decision. Some of them are as follows.

Cutting right to the heart of the issue at the beginning of the decision, Justice Rabner said:

The State has advanced a number of arguments, but none of them overcome this reality: same-sex couples who cannot marry are not treated equally under the law today. The harm to them is real, not abstract or speculative.

In addressing the State’s claim of irreparable harm, the Court noted:

The State argues that it will suffer irreparable harm in a number of ways if Judge Jacobson’s order is not stayed. First, it claims “an injury to its sovereign interests whenever one of its democratically enacted laws is declared unconstitutional.” The abstract harm the State alleges begs the ultimate question:  if a law is unconstitutional, how is the State harmed by not being able to enforce it?  (Emphasis added).

The Court pointed to California’s steps to nullify same sex marriages after the fact  in response to the claim that once it grants marriages licenses, it would be impossible to undo them letter.  The court concluded, “The State has presented no explanation for how it is tangibly or actually harmed by allowing same-sex couples to marry.”

The next part of the stay analysis is to determine whether the legal claim is settled.  Here, the Court noted:

Crowe standard and argues that plaintiffs’ interpretation of Windsor and its challenge to the Civil Union Act present unsettled questions of constitutional law. As Judge Jacobson correctly observed, the Crowe standard requires the moving party — in this case, the State — to show “that its legal right is settled.” See ibid. Regardless, the State maintains that the premise underlying Windsor means that civil-union partners are entitled to federal benefits. That interpretation of Windsor has not been followed by the United States Department of Justice or any number of federal agencies. The Supreme Court in Windsor, supra, declared that its “opinion and its holding are confined to . . . lawful [same-sex] marriages.” 570 U.S. at , 133 S. Ct. at 2696, 186 L. Ed. 2d at 830 (emphases added). In the wake of that decision, federal agencies have directed that various benefits be made available to same-sex married couples, but not to civil-union partners. That, in turn, deprives partners in a civil union of the rights and benefits they would receive as married couples. The State’s thoughtful position about what federal law should provide cannot substitute for federal action; nor can the State’s views bind the federal government. …. Because State law offers same-sex couples civil
unions but not the option of marriage, same-sex couples in New Jersey are now being deprived of the full rights and benefits the State Constitution guarantees.   (Emphasis added).

In further addressing the State’s argument that it would succeed on the merits, Chief Justice Rabner stated, “The State’s statutory scheme effectively denies committed same-sex partners in New Jersey the ability to receive federal benefits now afforded to married partners. The trial court therefore correctly found cognizable action by the State.”

The next factor to consider is a balancing of the hardships analysis.  The Court noted that the state noted “abstract harms” while the plaintiffs would suffer real harm including, but not limited to, the denial of federal benefits to them and their children, the inability to ” claim leave under the Family and Medical Leave Act if a partner becomes sick or is injured”; the inability to get health benefits as a “spouse” of a federal employee; the inability to get certain Medicare benefits; the inability to file joint federal income tax returns; the inability to be considered a spouse for immigration purposes; the inability toparticipate in a Survivor Benefit Plan as a spouse of an active or retired member of the military (or for that matter any federal employee).  In conclusion, the court noted that. ”  The balance of hardships does not support the motion for a stay.”

Turning to the public interest because the case presents an issue of significant public importance, the Chief Justice noted, “… we can find no public interest in depriving a group of New Jersey residents of their constitutional right to equal protection while the appeals process unfolds.”  The court further stated, “We find that the compelling public interest in this case is to avoid violations of the constitutional guarantee of equal treatment for same-sex couples.”

In rejecting the state’s argument that the democratic process should play out, the Court held, “But when a party presents a clear case of ongoing unequal treatment, and asks the court to vindicate constitutionally protected rights, a court may not sidestep its obligation to rule for an indefinite amount of time. Under those circumstances, courts do not have the option to defer.”

As a result of this decision, as noted  in the Star Ledger this weekend, there was discussion again of the attempt by the Legislature to override Governor Christie’s veto of same sex marriage.  If enough votes are obtained for an override, this could make the pending litigation moot.

Stay tuned as this issue is developing quickly and in a fascinating way.


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