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Marriage Equality at Hand in New Jersey

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It's time for gay marriage advocates to declare victory in New Jersey. Today the New Jersey Supreme Court refused to stay the issuance of marriage licenses to same-sex couples while it weighs whether the state can continue to offer civil unions rather than full marriage equality. The court's decision means that marriages can start this coming Monday, Oct. 21. Although the case on the merits won't be decided until early next year, the court made abundantly clear that it's going to find that the state can no longer deny marriage licenses to same-sex couples. Expect other states with similar laws to follow, and quickly.

Some quick background on the situation in New Jersey: In 2006 the state Supreme Court held that denying same-sex couples the benefits of marriage was an unconstitutional denial of their right to equal protection under the law, but it left the remedy to the legislature. So the lawmakers decided to follow the lead of a few other states, permitting gay and lesbian couples to form civil unions with all the benefits of marriage, but not marriage itself.

This worked, sort of, as long as even married same-sex couples were denied federal benefits under the Defense of Marriage Act (DOMA). But once the U.S. Supreme Court threw out a key section of that law this past summer, the distinction between civil unions and marriages became stark: A number of federal agencies, notably including the Internal Revenue Service, have made clear that benefits will extend only to same-sex couples who are married, not to those in civil unions.

Lawyers for Gov. Chris Christie have argued that the state isn't acting to deny these couples equality but that it's federal "bureaucrats" who are doing so by refusing to see civil unions as the equivalent of marriage. But this argument didn't convince the New Jersey justices. In their unanimous opinion today, they plain didn't care that the state legislature hadn't acted to deny benefits; it's enough that the practical effect of the civil union law today is to deny the "full equality" that the court required back in 2006. It's noteworthy that the only two justices still on the court from 2006 (Albin and LaVecchia) joined the majority opinion then but now find that civil unions aren't sufficient.

Why does the refusal to grant the stay mean that victory on the merits is inevitable? There are two reasons. First, courts will generally stay a decision under appeal if the outcome is doubtful. That's been especially true in these gay marriage cases, because courts don't want to allow marriages to go forward only to be cast into doubt if the court ultimately decides against the couples seeking licenses. In the challenge to Proposition 8 (the California law that took away the right of same-sex couples to marry in that state), a stay was in effect during the entire pendency of the litigation; not until after the plaintiffs finally won at the Supreme Court were the licenses finally issued.

Second, the New Jersey court used language in its decision that would cause even the most stouthearted of equality opponents to despair. In noting that the plaintiffs have a very strong chance of success on the merits (which, again, explains why the court isn't staying the lower court's decision), Chief Justice Rabner stated, "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."

At this point it seems that there's only one way to stop the New Jersey Supreme Court from issuing a final ruling in favor of the couples' equality: The New Jersey legislature might beat them to it. They have until the end of the year to gin up the votes needed to override Gov. Christie's veto of a marriage equality law passed last year.

What's going on in New Jersey can also be expected to fuel the conversion of civil unions to honest-to-gosh marriages in other states too. Similar suits are moving forward in Illinois and Hawaii, two other civil union states. As in New Jersey, the most interesting question now seems to be whether marriage equality will be achieved through legislation (there's a good chance in both states) or through the courts. But this much is clear: It's no longer possible to argue for the equality of the civil union.