Pay Attention to New Jersey

The next battle over recognition of "same sex" marriage may be bubbling over in New Jersey, where on September 27, 2013 Judge Mary Jacobson in Mercer County Superior Court (Trenton, NJ) issued a ruling that required New Jersey to permit same sex couples to marry. Judge Jacobson noted that New Jersey allows for civil unions, but that certain federal benefits like pensions and family leave are not provided under those civil unions. Using the rationale of the Supreme Court's decision in United States v. Windsor, Judge Jacobson set forth that:

"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... Same-sex couples must be allowed to marry in order to obtain equal protection under the New Jersey Constitution,"

The decision in Garden State Equality v. Dow (L-001729-11) is under appeal by the New Jersey Attorney General John Hoffman at the direction of Governor Chris Christie. AG Hoffman has said that he will ask Judge Jacobson to put her order on hold, and if she refuses, he will petition the State Supreme Court to act swiftly to stay the order.

Why is this decision possibly significant? Because it's likely headed to the State Supreme Court and then possibly to the United States Supreme Court. The issue is whether or not State's that recognize civil unions violate the 5th Amendment if they do not allow "same sex" civil union couples to enjoy all of the benefits afforded to married opposite sex couples. My guess, based upon the Court's decision in Windsor, is that Supreme Court would say that if you permit civil unions, you must provide the exact same rights to civil union couples as to opposite sex married couples -- making civil unions and marriage exactly equal (what a novel concept).

My feeling is that the label civil union itself is problematic and that if civil unions receive the same benefits (state and federal) as marriage than you should call them both the same thing. If something were equal you wouldn't need a different name for it. Currently New Jersey, Illinois, Hawaii and Colorado recognize civil unions but not marriage - my feeling is that the domino that is New Jersey may very well drop those four states in the "same sex/opposite sex" marriage equality department bringing the total number of states which permit all consenting adults to enter into a marital relationship regardless of sexual orientation to seventeen (17) states and the District of Columbia and New Mexico looks like it's about to fall as well (See: Greigo v. Oliver).

I'm not going to argue politics in this spot, but it is very clear to me that the movement is towards marriage equality (as well it should be) throughout the country, which in turn creates new situations for divorce attorneys to deal with. As someone who has handled same sex couple divorces in Massachusetts a number of times I can attest that divorce, regardless of sexual orientation is never easy and is as emotional and difficult for same sex couples as it is for opposite sex couples.

UPDATE (12:43 PM): Pennsylvania doesn't want you to forget about their involvement in this discussion. Federal Judge Jones III has fast tracked the challenge to Pennsylvania's ban on same sex marriage implementing an expedited briefing schedule.This is the case where Gov. Corbett defended the law saying it wasn't discriminatory because ANY woman was free to marry ANY man.