“There is no ‘public interest’ in depriving a class of New Jersey residents their constitutional rights while appellate review is pursued,” wrote Judge Mary C. Jacobson of State Superior Court in Mercer County, who also wrote the decision last month that ordered the state to allow same-sex marriages. “On the contrary, granting a stay would simply allow the State to continue to violate the equal protection rights of New Jersey same-sex couples, which can hardly be considered a public interest.”
The state immediately requested that the appellate division grant a stay. It had already asked the New Jersey Supreme Court to hear the appeal on an expedited basis; the court has not said yet whether it will do so.
Judge Jacobson said in her opinion that the state had not demonstrated that its appeal was likely to be successful. And she denied the state’s argument that New Jersey would suffer “irreparable harm” if marriages began happening, ruling instead that the people harmed would be the same-sex couples who would have to wait even longer to gain access to the federal benefits that the United States Supreme Court guaranteed them in a decision in June.
Judge Jacobson noted that “until some indeterminate time when appeals have been resolved,” same-sex couples would remain ineligible for federal tax and retirement benefits and for spousal coverage under Medicare. And if one member of the couple was a noncitizen, the other would not be able to sponsor him or her for residency, forcing them to live apart.
Lawrence S. Lustberg, who argued the case before Judge Jacobson on behalf of Garden State Equality and six gay and lesbian couples and their children, praised the ruling.
“We’re very pleased with not just the ruling, but the opinion, which makes clear how our clients are being harmed by not being able to marry, and compares that with the lack of harm that’s experienced by the state if they can marry,” he said. “The harms to our clients are real. The harm to the state is theoretical.”
The couples had asked the court to hear their case on an expedited basis after the United States Supreme Court’s decision in June striking down the federal Defense of Marriage Act, which denied federal benefits to couples in same-sex marriages.
The New Jersey Supreme Court ruled in 2006 that the state had to grant same-sex couples the same rights and protections as heterosexual couples, but left it to the Legislature to decide how to do so. The Legislature passed a law allowing civil unions, but the couples sued again, arguing that civil unions did not give the same benefits as marriage.
The United States Supreme Court said its ruling extending federal benefits to same-sex couples was limited to legal marriages. Judge Jacobson ruled in September that for that reason, the state had to offer marriages, not simply civil unions, to allow same-sex couples equal benefits.
She ruled that the state had to start allowing marriages on Oct. 21. Mr. Lustberg said couples would begin applying for licenses that day, and marriages would take place after the state’s three-day waiting period. But first, the plaintiffs will have to respond to the state’s request to appeal the decision on the stay, by Tuesday.
Meanwhile, a parallel strategy is moving through the Democratic-led Legislature, which passed a new bill allowing same-sex marriage last year. It was vetoed by Gov. Chris Christie, a Republican who is considered a leading candidate for his party’s nomination for president in 2016.
The Legislature has until January to override that veto, and state and national gay rights groups have flooded the state with money and activists to help the override vote succeed. The bill includes a provision that would allow religious leaders to decline to perform same-sex marriages by citing a moral exception. Democrats have argued that if the court decides the issue, it would not allow such an exception, so it would be better to have the Legislature move first to establish same-sex marriage.
The Democrats need Republican votes to win the override, and many Republicans have been wary of crossing Mr. Christie. But in recent weeks, two Republicans who did not vote on the original bill said they would support the override, and one who voted against same-sex marriage said he would vote for it.
“At any moment, the court can step in and put a halt to all this, temporarily or permanently,” said Mike Premo, the campaign manager for New Jersey United for Marriage, which is leading the push for the override. “The safest, surest, quickest route to marriage equality still remains with the Legislature.”
Yahoo Local News – New York Times
http://newyork.greatlocalnews.info/?p=15454
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