Mercer County Superior Court Judge Mary C. Jacobson has denied a motion by the New Jersey government to stay her decision ordering that the state begin granting marriage licenses to same-sex couples by October 21. In a decision issued today (October 10), Jacobson found that none of the factors considered by courts in deciding such motions were met, and that the public interest would be served by allowing her decision to go into effect. The Attorney General’s office immediately filed an “emergency motion” with the Appellate Division, seeking a stay.
Jacobson’s September 27 ruling in Garden State Equality v. Dow granted summary judgment to the plaintiffs on the claim that the state’s Civil Union Act no longer afforded equal treatment to same-sex couples, if it ever had, after the federal government started to recognize same-sex marriages pursuant to the Supreme Court’s June 26 decision in U.S. v. Windsor. Governor Chris Christie promptly vowed to seek review directly in the New Jersey Supreme Court, while asking Judge Jacobson to stay her Order pending the appeal.
Jacobson explained that under New Jersey law, a stay of a trial court ruling will be granted only if (1) it is necessary to prevent irreparable harm, (2) the applicant presents a settled underlying claim and makes a showing of reasonable probability of success on the merits of an appeal, and (3) a balancing of the relative hardships of the parties favors granting injunctive relief because greater harm would occur if a stay is not granted than if it were. In addition, Jacobson noted, in a case where there are public policy issues, the court should consider whether granting a stay is in the public interest.
As to all of these tests, Jacobson found that the state fell short. She found that the state would not suffer irreparable harm if same-sex couples were allowed to marry while an appeal is pending. A subsequent opinion by the New Jersey Supreme Court could declare such marriages invalid, and the state would have suffered no tangible harm at all. Jacobson noted that her opinion did not invalidate any existing statute, but “simply directs the State to allow same-sex couples to marry,” leaving it up to the state whether it wants to repeal or modify the existing Civil Union Act. “The State has found no New Jersey case to support the proposition that enjoining a state from enforcing a statute is per se irreparable harm,” she wrote. Since the State had not offered any New Jersey precedents to support its irreparable harm argument, it cited cases from other jurisdictions, but Jacobson found them all unpersuasive or distinguishable.
On the second factor, she said that the state “has not shown that the underlying legal right it seeks to vindicate through its appeal is ‘settled.’” Indeed, its “right” to deny marriage to same-sex couples is hardly settled, inasmuch as Judge Jacobson has ruled that in light of Windsor such a denial violates the New Jersey Supreme Court’s Lewis v. Harris decision, which held that same-sex couples are entitled to equal marital rights with different-sex couples. Given that holding, she saw little chance the State was likely to prevail on the merits of its appeal.
“The Decision is a straight-forward application of Lewis, where the Supreme Court held that same-sex couples must have access to the same benefits available to opposite-sex married couples under the New Jersey Constitution, to the current situation, in which DOMA has been repealed and federal benefits determinations have been left up to federal agencies, many of which have refused to extend coverage for marital benefits to civil union couples,” she wrote.
In terms of balancing relative hardships, it is clear that delaying the date when same-sex couples can marry imposes a hardship on them, but not delaying it imposes no tangible hardship on the state. Jacobson ran through a list of federal rights and benefits that would be unavailable to New Jersey civil union partners unless they could marry, and said “these inequalities violate the clear directive in Lewis.”
“On the other side of the equation,” she wrote, “the State invokes some sort of incorporeal harm to its sovereignty based on the need to maintain the current status of civil union couples pending appellate review, even as that status disadvantages those couples when compared to legally married New Jersey couples. The State has not made any showing that by simply permitting a new group of people to engage in marriage, and thereby allowing them access to federal marital benefits, the State will suffer any concrete injury or significant administrative burden. While the State argues that its sovereignty is somehow threatened by the Order, because it is the federal government’s actions that harm Plaintiffs, it persists in denying its responsibility for the current predicament of New Jersey civil union couples.”
Jacobson pointed out that the state has done nothing to try to get the federal government to recognize New Jersey civil unions, leaving the burden entirely on civil union partners to bring their own lawsuits against federal agencies seeking to compel such recognition, which may or may not succeed. “Plaintiffs would face an enormous litigation burden if they were required to challenge, on their own, every federal agency interpretation of Windsor denying equal access to marital benefits to civil union couples.”
She goes on to chide the state for failing to step up and seek to vindicate the equality rights of its civil union couples by marshaling its “creative legal talent” to vindicate such rights on their behalf. And she rejects the state’s argument that any delay for the appellate process to run its course would be brief, pointing out that “the time for completion of appellate review is completely uncertain,” and that her September 27 decision had already explained why the Plaintiffs’ harm was no longer merely speculative, as many federal agencies have already made clear that they will not recognize civil unions.
In terms of the public interest issue, Jacobson came down on the side of the plaintiffs. “Protecting the civil rights of New Jersey citizens is surely a matter of public interest,” she wrote. “Indeed, there is no ‘public interest’ in depriving a class of New Jersey residents of their constitutional rights while appellate review is pursued. 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.”
Given her conclusions on the factors that courts consider to determine whether to stay a trial court ruling while the losing party is appealing, Judge Jacobson’s decision to deny the motion for a stay appears to be very well supported. However, Governor Christie will undoubtedly push the Supreme Court to agree quickly to take the appeal and issue its own stay, and that court is not strictly bound to follow its own precedents, especially on such a politically charged matter as marriage equality. However, if the New Jersey Supreme Court decides to stay true to its own precedents, it should affirm Judge Jacobson’s ruling and deny a stay as well.