New Jersey Crosses the Finish Line to Marriage Equality – Maybe

Same-sex marriage became legal in New Jersey at 12:01 am on Monday, October 21. Wedding ceremonies are everywhere. The process may not be over, however; there are tactical decisions yet to be made as to how best to solidify and clarify the win.

It was a roundabout victory, achieved via a Superior Court decision last month, in which Judge Mary Jacobson held that civil union did not satisfy a state constitutional mandate of equal protection established in Lewis v. Harris (N.J. 2006). There followed, on Friday, October 18, a unanimous state Supreme Court ruling denying a motion for stay of Judge Jacobson’s order. So it’s legal for same-sex couples to marry here, but there is no a ruling on the merits by the state Supreme Court. That’s the problem.

To explain: A four-justice majority opinion in Lewis gave the legislature the option of providing an alternative status rather than opening marriage to same-sex couples, so long as the alternative also provided constitutionally required equal rights and benefits. The legislature immediately enacted civil union rather than marriage equality. Civil union very quickly proved an unequal alternative to marriage, as found by a state investigatory commission, and as testified to in state Senate hearings. The marriage equality advocates went back to court, first by seeking direct review from the state Supreme Court in 2010. The court declined to rule without new factual findings, so a new action was filed in Superior Court on federal and state equal protection and fundamental right grounds. It resulted in Judge Jacobson’s state equal protection ruling in September, 2013.

New Jersey Governor Chris Christie appealed Jacobson’s decision. The state supreme court granted direct certification on October 11, bypassing the Appellate Division; and it set oral argument for early January. Christie then sought a stay of the lower court’s order, in order to prevent same-sex marriages for taking place in New Jersey until after the state supreme court’s decision. A unanimous opinion by the New Jersey Supreme Court, issued on Friday, October 18, denied the stay. The opinion left no doubt as to how the court would rule on the merits. This past Monday, as the first marriages were being celebrated, Christie announced he was dropping the appeal.

So the governing opinion that civil union is constitutionally inadequate is that of a trial court. It could be overturned in a new lawsuit, by a higher court.

The New Jersey Supreme Court’s composition is unstable, due to a years-long political standoff between the Governor and the legislature that stems from the Governor’s refusal to reappoint standing justices for life (up to mandatory retirement at age 70) after their initial seven-year term. Christie is acting within his authority, but contrary to longstanding New Jersey tradition, and his actions threaten to politicize the judiciary. in turn, the Senate has refused to confirm most of the Governor’s nominees, resulting in vacancies on the supreme court. In this situation, the most senior Appellate Division judges fill in on the state supreme court until the positions can be filled by regularly confirmed justices. Two of these are among the unanimous seven who voted to deny the motion for stay. They can be replaced easily. Moreover, while Christie will win his gubernatorial election next month, it’s not so certain what the composition of the state Senate will be in the next session of the legislature. So in just a few months there may be a different New Jersey Supreme Court, perhaps substantially different and more to Governor Christie’s liking. To be sure, Justice Anne Patterson, a Republican appointed by Christie, was among those who voted to deny the stay. Nevertheless, if the New Jersey Supreme Court is presented with a different marriage equality case in a few years, it could come down differently.

Marriage equality in New Jersey could be achieved by another route, legislation. Speaking of standoffs, back in 2012, the New Jersey legislature passed a marriage equality bill. In fact, it was the first bill introduced in both houses in that legislative session, and it was entitled the Marriage Equality and Religious Exemption Act, S.B. 1, A.B. 1. Governor Christie vetoed it, stating that changing the law on marriage should only occur via a vote of the people. At that time, he also famously said that if civil rights had been put to public vote in the 1960s, we would not have had race riots in the south. Oy. That particular position was retracted rather quickly, as to race. But Christie has stuck by his view that marriage equality should only be achieved democratically, that is, through plebiscite and not the courts. To heck with judicial enforcement of constitutional equal protection and fundamental rights.

As to the stalled S.B. 1/ A.B. 1, it has increasingly looked as though there are enough votes in the legislature to override Christie’s veto. Marriage equality advocates have been assiduously lobbying Democrats and a few Republicans to set this up. The override must occur by the end of the legislative term, January 14, 2014. Override has been waiting in the wings, in part to see how fast the lawsuit would proceed. The plan is not to put the override into action until after the November 6 election – I presume to try to protect some legislators from voter retaliation for supporting marriage equality. Hey, the addition of sexual orientation to New Jersey’s Law Against Discrimination some twenty years ago prevailed by a single vote in the state Senate in a lame duck session.

Going forward with the veto override is one way to solidify Judge Jacobson’s ruling. However . . . as is typical of legislative resolutions of the marriage equality question, the legislation also addressed questions not addressed in the court case because not presented there. One matter is what to do with currently existing civil unions. Do they turn into marriages automatically; dissolve automatically so that civil union couples must take further steps to marry; or continue to exist as an alternative for same-sex couples? Perhaps civil unions are now still constitutionally permissible, because same-sex couples could choose marriage if they wish? On this question, S.B.1/A.B.1 provides sixty days for civil union partners to dissolve their civil unions; otherwise they are automatically married. The court opinions simply don’t address this important matter.

The other issue addressed in the legislation, one perhaps of constitutional dimension, is how to manage religious objections to marriage equality. Must clergy and religious societies solemnize same-sex marriages? Must religious institutions provide facilities for same-sex weddings? And must folks provide services of various types to same-sex couples, including wedding-related services, if they have a personal religious objection of same-sex marriage? Does it matter who they work for, and in what capacity? Typically, legislation establishing marriage equality addresses at least some of these questions, and as legislative recognition of marriage equality has evolved it has become customary to feature the accommodation of religious objection prominently, often right in the title of the act, as here. It’s a way of achieving enough compromise to get a marriage equality bill through a legislature. And of course none of these questions are answered in the New Jersey court opinions.

There is, actually, a 2007 Opinion by New Jersey Attorney General Stuart Rabner, now New Jersey Chief Justice Rabner, holding that clergy do not have to officiate at civil union ceremonies. Presumably that opinion would carry over to the marriage of same-sex couples as well. That’s one thing S.B. 1/ A.B. 1 would also make clear. It allows clergy and religious societies to decline to officiate at same-sex weddings –a result probably mandated in any event by the First Amendment. But there’s really no disagreement on this point. Clergy and religious societies win. It’s by far the less troublesome issue.

The bill also would allow various kinds of religious organizations and their employees to refuse to provide space or wedding-related services when acting out of religious conviction; and it insulates them from civil liability for refusal to provide space, services, etc. This is trickier. Here’s the relevant language from section 5(b) of the bill.

No religious society, institution or organization in this State serving a particular faith or denomination shall be compelled to provide space, services, advantages, goods, or privileges related to the solemnization, celebration or promotion of marriage if such solemnization, celebration or promotion of marriage is in violation of the beliefs of such religious society, institution or organization.

This provision is being read differently by different folks in the immediate aftermath of Christie’s withdrawal of the appeal. An editorial in the October, 22, 2013, Star-Ledger is concerned that this language “sanctif[ies] religious discrimination against gays” because it would allow the religious owner of a banquet hall to refuse use of the hall to a same-sex couple, even though it could not refuse use to an African-American couple or a Jewish couple. Editorial, Gay Rights and Religion: Why Should New Jersey Sanctify Discrimination Against Gays?, Star-Ledger (Newark, N.J.), Oct. 22, 2013, at 14. The editorial urges the legislature to avoid solidifying the court victory through override, because S.B. 1/ A.B. 1 contains an undesirable compromise of principle. It urges a new “clean” bill, which would “trim back the religious exemptions so that gay couples have precisely the same protections against discrimination as racial or religious minorities.”

On the facing page of the Star-Ledger is an op. ed. piece urging the override, because legislation is necessary to clarify the matters not addressed by the court. Steven Goldstein, Why Legislation for Equality Still Matters, Star-Ledger (Newark, N.J.), Oct. 22, 2013, at 15. The principal point is that legislation is needed one way or another; Goldstein urges Governor Christie to sign a “clean” bill if that option is pursued rather than override. On the facilities and services issue, Goldstein argues that the S.B. 1 / A.B. 1 already provides just the right balance between marriage equality and religious freedom. Goldstein, by the way, is the former executive director of Garden State Equality, New Jersey’s leading LGBT advocacy group and the lead plaintiff in the revived marriage equality lawsuit. He also had a major hand in crafting the compromise language of S.B.1 / A.B. 1.

Let’s be careful not to conflate two issues. Here, we’re talking about the scope of an exemption for religious institutions and their facilities, services, and employees, not for private companies owned by individuals with strongly-held religious beliefs opposed to same-sex marriage, and not for employees of companies who as individuals have strongly-held religious beliefs opposed to same-sex marriage. Let’s call the former the “religious institution” exemption and the latter the “personal conscience” exemption. In other contexts where there’s a statutory or constitutional “religious institution” exemption, in employment and land use, for example, it’s sometimes hard to tell where the religious institution stops and private, secular enterprise begins. Is the soup kitchen subject to zoning rules, or is it exempt, or at the least protected at the level of strict scrutiny under RFRA, when it is run out of a church-owned building that is not a church? Is a building not a church, but owned by a church, and rented out for wedding ceremonies, exempt from a public accommodations law or not? (Some may recognize here the fact pattern underlying the controversy over holding civil union ceremonies in the Pavilion in Ocean Grove, New Jersey.) Suppose the church provides the facility but the organist refuses to play for the service? Is s/he clergy, or, if a mere employee, should s/he be protected because s/he works for a church, even though the church itself does not object? What if s/he is an independent contractor?

These are not easy questions. It’s hard enough to parse language such as that in S.B.1 / A.B. 1. And not all legislative marriage equality statutes include the facility and employee provisions. Moreover, we might or might not have guidance soon from the United States Supreme Court, in a “personal conscience” case — perhaps in one of the “wedding services” cases, more likely in one of the appeals around compelling private employers to provide insurance coverage for contraception, an issue raised by the Affordable Care Act. A broad holding protecting individual conscience or owner conscience in for profit settings would surely have ramifications for the scope of religious exemptions from recognizing same-sex marriage.

What about the possibility of a new, “clean” same-sex marriage bill, one that would resolve the question of the status of pre-existing civil unions, and clarify further legislatively the principle of exemption for clergy and religious societies, if indeed it requires anything other than the language currently in S.B. 1 / A.B. 1? The legislature could enact such a bill before the current session ends. Would the Governor veto this one, too? Or has he established well enough his bona fides in opposition to marriage equality that he can safely just stay on the sidelines and allow a “clean” bill to become law without his signature? He’s surely not going to sign it. All along Christie has been playing to social conservatives nationwide on the marriage equality issue. He injected his opposition to same-sex marriage into his first gubernatorial campaign in 2009, quite unnecessarily in terms of his standing in the polls in the state. He’s up for reelection in three weeks, and from there – well, he’s a rising star for moderate Republicans, who may be in the ascendancy after the tea party’s shut-down-the-government debacle earlier this month.

What to say about this mishegoss? Let’s step back for a moment. When the first state supreme court opinion came down requiring legal recognition, it left the door open for the state legislature to create an alternative institution. The state was Vermont, the opinion was Baker v. State (Vt. 1999), and the institution, created after a fierce debate in the Vermont legislature in 2000, was not marriage but civil union. In a law review article, Chief Justice Jeffrey Amestoy, who penned the majority opinion in Baker, explained his action later, in terms of a theory of state constitutional law in which part of the court’s role is to stimulate dialogue among the political branches. Jeffrey L. Amestoy, Foreword: State Constitutional Law Lecture: Pragmatic Constitutionalism –Reflections on State Constitutional Theory and Same-Sex Marriage Claims, 35 Rutgers L.J. 1249 (2004). It’s a most interesting account, and goes hand in hand with law professor William Eskridge’s description of the Vermont experience as “equality practice”. In the case of Vermont, a civil union commission found civil union failed to provide the “equal benefits” required by Baker and, after a few years to get used to the idea, the legislature enacted marriage equality.

But not in New Jersey. The first steps followed the same trajectory, with Justice Albin’s opinion in Lewis v. Harris leaving space for the legislature to see whether it could achieve equal rights and benefits with an institution called something other than marriage, if it so chose; the legislature enacting civil union; and a subsequent commission finding that civil union did not and could not meet that goal. Here the paths diverge. Marriage equality advocates went back to court instead of waiting for the legislature to reconsider, and when that action was prolonged by the state supreme court’s refusal to take the case immediately in aid of litigant’s rights, they initiated a parallel legislative strategy while also following through with an evidentiary trial. Then, in contrast to Vermont, the New Jersey legislation got bogged down in politics—in my view, it was Governor Christie’s presidential ambition politics, although to be fair he has said all along that he is acting on his own personal principles and convictions. Lastly, because of the peculiar procedural posture in which the state supreme court expressed its views on the constitutional inadequacy of civil union, it’s back to legislative/gubernatorial politics once again, not only for this legislative session, but for a future session in which a legislature may seek to round out the consequences of and solidify the opinion expressed in Chief Justice Rabner’s opinion denying the stay. Ah, such politics we have here in New Jersey!

This paragraph is a postscript, I suppose, and an acknowledgement. The tangled politics of New Jersey are well-analyzed in a student paper, Lauren Repole, Popular Constitutionalism and Lewis. v. Harris: A Matter of Judicial Independence (2013) (paper eventually available electronically from the Seton Hall Law School library as part of our student paper archive; meanwhile copy on file with me). Ms. Repole also authored a fine study of how it came to be that the District of Columbia also has the only human rights law in the country that categorically prohibits plebiscites rescinding human rights advances. Lauren E. Repole, Comment: Direct Tyranny: The Human Rights Act as a Safeguard Against Harmful Majoritarianism in Jackson v. District of Columbia Board of Elections and Ethics, 43 Seton Hall L. Rev. 685 (2013). The District Council was keenly aware not only of racist referenda but also of the reversal of LGBT protections in Miami/Dade County by referendum in Anita Bryant’s Save the Children campaign, which was contemporaneous with the enactment of the District of Columbia’s Human Rights Act.

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