New Jersey Judge Presents Pointed Questions in Tangled Marriage Equality Case's Oral Arguments

A New Jersey state court judge in Trenton today expressed skepticism towards state officials' claims in defense of New Jersey's decision to offer civil unions but not equal marriage rights to same-sex couples, particularly in light of the Supreme Court's recent decision invalidating a key section of the Defense of Marriage Act (DOMA).

In questions posed to lawyers from both sides, however, Judge Mary Jacobson showed hesitation to move too fast on a constitutional issue of such importance, asking for further briefing and telling lawyers not to expect a ruling until next month at the earliest.

"Federalism is messy," the judge said matter-of-factly early in the proceedings, succinctly summing up the complexities present in the legal challenge, known as Garden State Equality v. Dow and brought by Lambda Legal, an LGBT legal advocacy group.

At issue today was a motion for summary judgment -- essentially, a request for a decision to be rendered without a full trial -- filed by Lambda Legal. In that brief and during today's oral arguments, the legal group claimed that because married same-sex couples can now access federal benefits after the invalidation of DOMA's Section 3, New Jersey's decision to offer only civil unions (which do not provide federal benefits) to same-sex couples amounts to an unconstitutional violation of these couples' equal protection rights under both the state and federal constitutions.

In 2006 the New Jersey Supreme Court ruled in the case Lewis v. Harris that same-sex couples must be afforded the same rights and benefits as different-sex couples, although the court allowed the legislature to create a separate legal status providing such rights, which it did.

During today's proceedings, New Jersey Assistant Attorney General Kevin Jespersen trod a thin line, circling back several times to one fundamental question: Can a state court, relying on the New Jersey Constitution, take action against the state for a deprivation of rights and benefits by the federal government? Because the state court has no jurisdiction to order federal agencies to extend benefits to same-sex couples, Jespersen argued, and because New Jersey has done everything within its power to make civil unions and marriages legally equivalent, there is no action the court can take in response to Lambda Legal's constitutional claims.

At the same time, however, Jespersen -- echoing the state of New Jersey's larger argument -- told the court that New Jersey's civil unions should make same-sex couples eligible for federal benefits because of the Supreme Court's decision striking down DOMA in the case United States v. Windsor. In that case the high court ruled that the federal government could not withhold federal benefits from same-sex couples whom states (such as New York, the state at issue in the Windsorcase) had taken action to protect by offering them equal marriage rights.

By extension, Jespersen argued, the federal government should be required to defer to state law in determining which couples are considered married in order to determine eligibility for federal benefits, rather than only looking to whether couples are married or unmarried. Judge Jacobson pushed back on this argument, telling Jespersen that he was "asking the federal government to do something very complicated" -- that is, to look at each state's laws in determining how to disburse each and every federal marital benefits.

This argument was echoed by Lawrence Lustberg, the attorney arguing on behalf of the plaintiffs during today's proceedings, who at times combatively refuted New Jersey's arguments and urged the court not to overcomplicate its consideration of the case. The Windsor decision explicitly limited itself so that it did not include civil unions and domestic partnerships, Lustberg argued, quoting the decision's final line: "This opinion and its holding are confined to those lawful marriages."

Because of that holding, Lustberg told the court -- and in light of the fact that nearly all federal statutes pertaining to marriage benefits include language focusing on a couple's marital status, not on whether or not a couple is in a marriage-like partnership -- the plaintiffs in the Garden State Equality case would be unlikely to succeed in federal court if they attempted to force the federal government to extend marital benefits to couples in civil unions.

Instead, Lustberg said, the Supreme Court's decision striking down DOMA means that, as a matter of law, the only constitutional remedy to the unequal treatment of New Jersey's same-sex couples is for the state to extend equal marriage rights to such couples. "This is all caused by the state. It begins with the state, and it could end with the state," Lustberg told the court.

On the constitutional issues at the center of the case, although she presented both lawyers with pointed and extensive questioning regarding their positions, Judge Jacobson appeared inclined to side with Lambda Legal's argument, pointing out that she is bound by the New Jersey Supreme Court's decision in Lewis mandating that same-sex couples be treated equally to different-sex couples.

In plain language, Judge Jacobson told Jespersen that the recent decisions of several federal agencies not to consider couples in civil unions eligible for federal benefits pointed to the fact that those couples are not being treated equally, and she asked the attorney how the state Supreme Court could possibly find such treatment constitutional in light of the Lewis decision.

Yet at the same time, she expressed concern about moving too quickly on the issue. "I'm very concerned about whether this is the right time to bring this case," Judge Jacobson told Lustberg, "when I know the [New Jersey] Supreme Court wanted a factual record, and the facts in terms of what federal agencies are doing are in flux."

At the end of today's oral arguments, the judge invited attorneys for both sides to supplement their briefings to address the questions she had raised by Aug. 28. A decision in the case, she said, will not come until September at the earliest.

Based on her questioning today, it seems quite possible that Judge Jacobson may opt to proceed to a full trial -- rather than issuing a summary judgment -- in order to develop a full factual record for her eventual decision. In either event, its likely that any ruling will be appealed and could very well go to the state Supreme Court for a final determination.

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