New Jersey Marriage Equality Part II: When Lewis Met Windsor
United States v. Windsor, – U.S. –, 133 S.Ct. 2675 (2013), invalidated the federal Defense of Marriage Act (DOMA) on somewhat murky constitutional grounds. It also provided the catalyst for this month’s move to marriage equality under state constitutional law in New Jersey. But it did so in a most curious way.
In Lewis v. Harris, 908 A.2d 196 (N.J. 2006), a unanimous New Jersey Supreme Court had held that same-sex couples could not be denied the equal rights and benefits guaranteed by the New Jersey constitution. However, a four-person majority in Lewis demurred as to whether the state had to allow same-sex couples to marry, allowing the legislature instead to choose to create a new status that would provide the same rights and benefits as marriage, but with a different name. In short order the legislature enacted a Civil Union Act, which became effective in 2007.
From the outset, it was clear to marriage equality advocates that that civil union would not and could not convey the equal rights and benefits that Lewis v. Harris mandated. The New Jersey Civil Union Review Commission held hearings and made extensive findings to that effect, unanimously. But how to persuade either the courts or the legislature to make the move all the way to marriage equality? Both legislative and judicial mechanisms were deployed. As to litigation, there was an initial attempt in 2010 to return the matter directly to the New Jersey Supreme Court, by way of a motion in aid of litigant’s rights filed in Lewis v. Harris. It failed because the court determined, on a 3-3 vote, that an evidentiary record was necessary. 202 N.J. 340 (2010). It is this evidentiary trial process that Windsor short-circuited.
A new marriage equality case, Garden State Equality v. Dow, was filed in Superior Court in 2011. The plaintiffs – the state’s leading LGBT advocacy group, six same-sex couple,s and ten of their children – alleged violations of equal protection and the fundamental right to marry under both state and federal constitutions. The federal and state equal protection claims survived a motion dismiss. By mid-2013, discovery of factual witnesses had been completed, and expert witness discovery was about to begin.
Then, on June 26, 2013, the United States Supreme Court handed down United States v. Windsor. That changed everything. But not, for purposes of attaining marriage equality in New Jersey, as a matter of the federal constitutional law dimension of Windsor. In fact, the doctrinal basis of Windsor is not altogether clear. Justice Kennedy’s opinion seems to rely on both equal protection and a due process fundamental right to marry, his text switching back and forth between the two doctrinal strands. There are also, as Justice Alito’s dissent put it, “whiffs of federalism” in his opinion, and Chief Justice Roberts explicitly reads Kennedy’s opinion as a federalism opinion. How Windsor will be understood as a matter of constitutional law is surely vital for a number of pending and post-Windsor marriage equality cases, which depend on federal constitutional claims.
But not in New Jersey. Rather, the key element here was that a number of important federal agencies, in implementing the mandate of Windsor to recognize same-sex couples who are legally married in a state, promulgated policies that would recognize married same-sex couples but not same-sex civil union partners. Married same-sex couples henceforth will benefit from the provisions of the federal Family and Medical Leave Act (FMLA); spousal benefits such as insurance and pension in federal government employment, including the military; favorable federal tax treatment, such as the federal estate tax spousal exemption at issue in Windsor; and recognition as a couple for purposes of immigration matters. Of the major federal agencies that have responded to Windsor’s mandate to recognize legally-married same-sex couples, only the Department of Defense has indicated that it might give consideration to also recognizing same-sex civil unions and domestic partnerships.
The factual premise of Garden State Equality was that civil union was not and could not be equal to marriage under the Lewis standard. That was to be tried in Superior Court. In a matter of weeks after Windsor, this question became so much clearer that summary judgment was attained. Married couples had access to a wealth of federal rights and benefits, but civil union couples did not. And the cause was clearly the state’s reluctance to provide access to marriage. Judge Jacobson ruled for the plaintiffs in Garden State Equality on summary judgment on September 27, 2013, and ordered the state to be prepared to marry same-sex couples on October 21.
The matter on appeal proceeded directly to the New Jersey Supreme Court. On October 18, that court denied a stay of Judge Jacobson’s order, with an opinion clearly tipping its hand on the merits, in light of Windsor. On October 21, Governor Christie withdrew the appeal. Voilà, marriage equality.
Prior to Windsor, the plaintiffs’ argument in Garden State Equality for inadequacy of civil union had turned on real but more subtle injury. (It did anticipate how the facts would parse if DOMA were held unconstitutional.) The different name “civil union” causes stigmatic injury, as the need to recognize same-sex couples under a separate label implies inferiority and second-class status. Having to declare oneself a civil union partner rather than the less explicit “married” label outs the members of the couple and their children, exposing them to stereotyping and prejudice. Trying to operate under a different and unfamiliar name might make it difficult for same-sex couples in civil unions to obtain the benefits they are entitled to, either because government functionaries are unfamiliar with the novel term “civil union” (at least in the first few years), or those functionaries may feign unfamiliarity out of hostility, or the couple once outed mayreceive sincere but unconsciously unfriendly or uncomfortable treatment. And, quite simply and most importantly, “civil union” simply cannot convey the culturally privileged status of “marriage” and “spouse/husband/wife,” with all those words’ connotations of kinship and tradition.
These arguments were not novel, and they were successful in litigation in a couple of other jurisdictions. See In re Marriage Cases, 183 P.2d 384 (Cal. 2008) (California domestic partnership unconstitutional under California state constitution on both fundamental right and equal protection grounds), rev’d by referendum, Proposition 8, held unconstitutional, Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012), appeal dismissed for want of standing, Hollingsworth v. Perry, – U.S.- , 133 S.Ct. 2652 (2013); Kerrigan v. Comm’r of Public Health, 957 A.2d 407 (Conn. 2008) (civil union state unconstitutional under Connecticut constitution on equal protection grounds); see also In re Opinions of the Justices to the Senate, 802 N.E.2d 565 (Mass. 2004) (advisory opinion to the Massachusetts Senate that a bill providing for civil union would not comply with the marriage equality mandate of Goodridge v. Dep’t of Public Health, 798 N.E.2d 941 (Mass. 2003)).
Commentators before and after these cases came down have sought to solidify the argument that civil union by the very separateness of its name caused a constitutional injury. An article of mine was among them. Marc R. Poirier, Name Calling: Identifying Stigma in the “Civil Union”/“Marriage” Distinction, 41 Conn. L. Rev. 1425 (2009). I especially approved of the citation by the Connecticut Supreme Court in Kerrigan of a Connecticut employment discrimination case from the 1970s, in which a newspaper had maintained separate columns for advertisements for jobs for men and for women. Although the newspaper did not itself discriminate in employment, it was held guilty of violating a state antidiscrimination statute because the categorization of job opportunities separately for men and women facilitated sex discrimination in employment by others.
Windsor makes this kind of subtle reasoning unnecessary. The disability of civil union couples to obtain vital federal benefits – Social Security, employment benefits, veteran’s benefits, favorable tax treatment prime among them – obviates any more complicated fact-finding. Windsor makes it perfectly clear that civil union and domestic partnership cannot be equal to marriage, so as to satisfy Lewis; for the federal government does not treat them as equal statuses.
One might try to argue (as New Jersey did) that this inequality derives from decisions on the part of federal government agencies about how to treat civil unions, not from anything New Jersey has done. Civil union partners supposedly get all the rights and benefits of state law under civil union; if the couples still receive unequal treatment by federal agencies, New Jersey argued, it is entirely the federal government’s fault. New Jersey also contended in Garden State Equality that Windsor required the federal government to recognize civil union as equal to marriage whenever a particular state intended that status to convey equal rights and benefits, as New Jersey had. That position read a particular kind of federalism holding into Windsor. The New Jersey courts have rejected it. Both Judge Jacobson’s opinion and the Chief Justice Rabner’s order denying the stay make it clear that New Jersey’s statutory scheme is at fault. It establishes a bifurcated statutory infrastructure for couples recognition which causes pervasive inequality once the federal government’s position changes to one recognizing state-sanctioned marriages by same-sex couples.
The Windsor opinion is likely to serve as an accelerant in other pending marriage equality proceedings. In one important case, Sevcik v. Sandoval, 911 F.Supp.2d 996 (D.Nev. 2012), appeal pending (9th Cir. No. 12-17668), Lambda Legal has challenged Nevada’s refusal to recognize marriages by same sex-couples, pursuant to a state constitutional provision, for failing to provide Equal Protection as required by the United States constitution. Nevada does have domestic partnership for same-sex couples. A federal district court ruled in favor of Nevada, and the case is pending before the Ninth Circuit. The appeal in Sevcik has been consolidated with the appeal in Jackson v. Abercrombie, 884 F.Supp. 2d 1065 (D. Haw. 2012), appeal pending, a similar case challenging under federal equal protection a Hawaii state constitutional provision barring recognition of marriages by same-sex couples. Hawai’i provides civil union for same-sex couples. (The Jackson appeal may be mooted if Hawai’i moves to marriage equality legislatively, which may occur within the next few days.) The claims in Sevcik and Jackson turn on the federal constitution, so the Ninth Circuit will have to construe Windsor’s substantive holdings. It will also have to grapple with the supposed continuing precedential validity of Baker v. Nelson, 409 U.S. 810 (1972), a one sentence Supreme Court order dismissing for want of a substantial federal question an appeal from Minnesota’s denial of marriage to a same-sex couple. If there was no federal question that might support marriage equality in 1972, why is there now? Have circumstances changed? Has constitutional doctrine evolved? To be sure, Windsor’s consequences for same-sex couples in civil unions or domestic partnerships vis-à-vis federal benefits will certainly make the inherent inequality of these non-marital legal statuses plain. But Windsor will be front and center for constitutional doctrinal reasons, reasons other than the evidence its implementation provides as to the inequality of civil union and domestic partnership.
There are also pending “what’s-in-a-name?” lawsuits challenging Illinois’s civil union statute and (I believe) Colorado’s domestic partnership statute. Those states do not have prior state constitutional determinations as to equal rights of same-sex couples, equivalent to what Lewis provided. Finally, there are number of new marriage equality cases and out-of-state marriage recognition cases that have been filed in the wake of Windsor. Virginia (two), West Virginia, North Carolina, Tennessee, Kentucky, New Mexico, and Pennsylvania come to mind, and I’ve probably left some out, and I expect some more. Here again, the uncertain constitutional reasoning of Windsor will likely be more important than the evidence it provides that civil union/domestic partnership are never going to provide equal rights and benefits.
One might ask whether the catalyzing effect of Windsor on Lewis has precedents. Judge Jacobson found that, strictly speaking, the situation was unique; but she did refer to some Supreme Court cases in which state determinations as to illegitimacy resulted in denial of federal benefits, leading to invalidation of the state classificatory schemes on federal constitutional grounds. In those cases the states were held at fault, not the federal government. I kind of like that analogy, partly for another reason. Illegitimacy gets some kind of intermediate scrutiny. Perhaps sexual orientation should too. The district court in Sevcik rejected this argument, coming down clearly in favor of straightforward, lenient rational basis scrutiny. My own view is that Windsor applied rational basis with bite, à la Romer v. Evans (1996). But on that little matter of heightened judicial scrutiny for sexual orientation, as on so much involved in marriage equality, only time will tell.