Judge Says Gay Marriage Must Come to New Jersey
New Jersey must allow same-sex couples to get married, a judge ordered Friday.
“The ineligibility of same-sex couples for federal benefits is currently harming same-sex couples in New Jersey in a wide range of contexts,” Judge Mary C. Jacobson said in the opinion. “Same-sex couples must be allowed to marry in order to obtain equal protection of the law under the New Jersey Constitution.”
The judge based her reasoning on last summer’s U.S. Supreme Court ruling that invalidated part of the discriminatory Defense of Marriage Act, which had banned the federal government from recognizing same-sex marriage.
If the order stands up to appeal, New Jersey will become the fourteenth state with marriage equality. The state made an attempt last year as well, passing a law through the legislature granting LGBT marriage, but it was vetoed by Governor Chris Christie. In response to last week’s judicial ruling Christie has requested that the state Supreme Court take up the case, and he has also asked for a judicial stay so licenses don’t start getting signed on Oct. 21 as per Jacobson’s order.
LGBT couples in New Jersey seem poised to gain full marriage recognition soon one way or another, whether the judges’ order stands up, or the legislature overrides Christie’s veto, or through popular referendum as the governor has suggested, but at a minimum they have another two weeks to wait.
Divorce v. Dissolution
New Jersey already allows civil unions, thanks to a 2006 state Supreme Court ruling that LGBT couples must get all the same marriage benefits as straight couples. However, now that DOMA is out of the picture, civil unions become insufficient because they don’t allow access to over 1,000 federal marriage benefits like the ability to file joint tax returns.
“Under these circumstances, the current inequality visited upon same-sex civil union couples offends the New Jersey Constitution, creates an incomplete set of rights that Lewis [the 2006 ruling] sought to prevent, and is not compatible with ‘a reasonable conception of basic human dignity,’” Jacobson wrote.
“What they attempted to do in New Jersey in creating that separate but equal designation fails now because it’s not equal,” explains Jodi A. Argentino, an attorney with New Jersey family law firm Argentino and Jacobs. “The problem is, anyone not within that marriage label doesn’t get the same federal rights and responsibilities. The name is what gives the designation any power federally.”
Aside from granting the dignity of not segregating the legal designation of partnership based on the sex of the spouses, and the acquisition of federal benefits, true marriage equality would clear up a tricky divorce question as well. Currently LGBT couples in New Jersey can be granted a dissolution of civil unions, but not divorce. It’s still unclear whether spouses who were married in another state but reside in New Jersey and who seek a dissolution are actually legally separated without going through an actual divorce.
If Jacobson’s order stands up, it’s a moot point. “People going out of state and getting married as residents of New Jersey has become a bigger issue we have to deal with. There’s a gap as to what you have dissolved,” says Argentino. “I think we’re all just hoping that marriage equality passes and it goes away.”