By Joseph Ax
TRENTON, N.J., Aug 15 (Reuters) – New Jersey must
immediately allow same-sex marriages now that the U.S. Supreme
Court has invalidated the federal law defining marriage as
between a man and a woman, lawyers for gay-marriage advocates
argued before a state judge on Thursday.
The arguments come in the first case to test whether the
Supreme Court’s decision to overturn the Defense of Marriage Act
forces states to reconsider laws that restrict gay marriage, a
dispute that could play out in courthouses across the country.
Judge Mary Jacobson, hearing the arguments in Mercer County
Superior Court in Trenton, said she would not rule until
September at the earliest.
Lawyers representing Governor Chris Christie, who vetoed
same-sex marriage legislation last year, told Jacobson that the
litigation is premature because the full effect of the Supreme
Court’s decision is not yet known.
Following the Supreme Court’s June 26 ruling in U.S. v
Windsor, advocates of same-sex marriage filed court papers in a
dozen states, arguing that the legal landscape had changed and
that certain state laws prohibiting gay marriage could no longer
withstand scrutiny.
In a 5-4 ruling, Supreme Court found that DOMA violated the
Constitution’s guarantee of equal protection under the law by
denying gay married couples tax breaks and other federal
benefits available to married heterosexuals.
Thursday’s hearing was the latest skirmish in a legal battle
that began in New Jersey more than a decade ago.
In 2006, New Jersey’s Supreme Court ruled that same-sex
couples were entitled to the same rights as heterosexual married
couples. That decision led the state legislature to pass a civil
unions law meant to grant same-sex couples equal rights.
Lawyers for Garden State Equality, a gay rights advocacy
group, told the judge on Thursday that the Supreme Court’s
decision applied only to marriages, not to civil unions.
As a result, they argued, the state’s prohibition of
same-sex marriage results in unequal treatment, in violation of
the state Supreme Court’s 2006 ruling, since those couples will
not access to federal benefits available to married heterosexual
couples.
“Federal benefits depend on marriage,” said Garden State
Equality attorney Lawrence Lustberg. “After Windsor, that is
true whether the couples are of the same sex or different. That
is what Windsor changed.”
Kevin Jespersen of the New Jersey Attorney General’s office
said the burden is on federal agencies to respect the state’s
civil union law and confer the same benefits to same-sex
couples. If that is not happening, the plaintiffs’ quarrel is
with the federal government, not New Jersey, he said.
“The New Jersey constitution cannot create a state remedy
for the federal government acting under federal law,” Jespersen
said.
But Lustberg said that argument is misplaced.
“This case is about state action,” he said. “It is the
state, not the federal government, that is the source of the
problem here.”
The government also questioned whether the request for an
immediate ruling was premature, given that federal agencies are
still determining how to apply the DOMA decision to benefits.
“When you step into a very fast-moving stream, the footing
is very uncertain,” Jespersen said.
Lustberg, in response, cited several federal departments
that have already said they will honor same-sex marriages, but
not civil unions, when evaluating eligibility for benefits.
While the legal dispute continues, gay marriage advocates
are pursuing a legislative remedy, pressing state lawmakers to
override Christie’s veto of the bill that would have legalized
gay marriage.
(Editing by Barbara Goldberg and Steve Orlosky)
