New Jersey Marriage Recognition Ruling

New Jersey Superior Court Judge Mary Jacobson ruled on Friday, February 6, that her court would exercise jurisdiction over a petition seeking a divorce from a Canadian same-sex marriage. Jacobson’s ruling was not in the form of a written order, and was issued to resolve a dispute between the petitioner, La Kia Hammond, and the office of the New Jersey Attorney General, Anne Milgram, which maintains that same-sex marriages contracted in other jurisdictions are recognized only as civil unions in New Jersey, and are thus subject to the law governing dissolution of civil unions, not the divorce law.  Hammond v. Hammond, Docket No. FM-11-905-08-B (N.J. Superior Ct., Chancery Div., Family Part, Mercer County).

Anticipating the effective date of the recently-enacted Civil Union Act in 2007, then-Attorney General Stuart Rabner issued a formal A.G. Opinion, 3-2007, on February 17, 2009, setting forth the view of the office, which has not changed under his successor, that because the legislature had clearly excluded same-sex couples from marrying in New Jersey when it opted to adopt a Civil Union Act in response to the state Supreme Court’s decision in Lewis v. Harris, 908 A.2d 196 (N.J. 2006), New Jersey should use its own legal forms – civil union or domestic partnership – in deciding how and to what extent to recognize the legal relationships of same-sex couples that had been formalized in other jurisdictions. Rabner opined that those who obtained Civil Unions in other states comparable to the unions being established in New Jersey under the new law should be recognized as having civil unions, and those with relationships carrying significantly fewer rights should be recognized under the similarly-limited N.J. Domestic Partnership Act. After noting that marriage was available to same-sex couples in several jurisdictions, including Canada and Massachusetts, Rabner opined that these should be recognized as civil unions in New Jersey.

In the case pending before Judge Jacobson, Hammond v. Hammond, the petitioner and respondent had been married in British Columbia, Canada, in 2004, after a long relationship in which they were raising children together. They resided together after the marriage in Maryland, but their relationship ended and La Kia Hammond moved with her daughter to New Jersey, where she has formed a relationship with another woman whom she would like to marry. Complicating factors: she is still legally married to her former partner, Kinyati Hammond, and she has been diagnosed with a serious medical condition with a relatively short-term survival prognosis. So she wants to marry as soon as possible, and hasn’t the time to move to Canada and establish sufficient residency to get a divorce there.  In addition, she is concerned that Canadian authorities might not consider a "dissolution of civil union" from New Jersey as having effectively terminated her Canadian marriage, a prerequisite to marrying her new partner there.

Confronting these facts, Jacobson concluded that the Hammond marriage should be recognized for the purpose of establishing jurisdiction under New Jersey’s divorce law. Jacobson relied on the traditional principles of New Jersey marriage recognition law dating back to the 1800s which, in common with virtually all other states, provide that a marriage that was lawful where it was contracted will be recognized in New Jersey provided that doing so does not violate the public policy of the state. New Jersey has never adopted a constitutional amendment banning the performance or recognition of same-sex marriages. Neither has it adopted a so-called defense of marriage act strictly precluding their recognition. What we have in New Jersey is a state Supreme Court ruling holding that same-sex couples are entitled to obtain legal recognition of their relationships equal in terms of state law with the recognition accorded to different-sex couples – a constitutional mandate that the Supreme Court opined could presumptively be met by a civil union statute, which is what the legislature passed.

Jacobson indicated that she was ruling only the question whether her court has jurisdiction over a divorce proceeding involving the Hammonds, and not on a more general question of whether the marriage must be recognized for all purposes in New Jersey. That is an appropriately cautious approach when confronting a case of first impression. After all, the issue of marriage recognition will naturally arise in particular applications rather than in the abstract.

I haven’t seen a transcript of Judge Jacobson’s ruling, just some newspaper accounts, but it seems that she decided this issue based on the facts of the case before her, concluding that under the circumstances it would not violate the public policy of the state to recognize the Hammond message for the purpose of granting a divorce, and she scheduled a hearing for next month on the divorce petition.

News reports indicate that Kinyati Hammond has not responded to the petition or appeared in the case, and certainly has not sought to oppose La Kia’s petition. The only opposition came from the office of Attorney General Anne Milgram, arguing that the court should consider granting a dissolution of civil union but not a divorce. There hasn’t been an announcement yet whether the Attorney General will seek to appeal this interim order.

What does this mean in the larger scheme of things? Might the Attorney General’s Office modify its views in reaction to this ruling? I would be hesitant about advising people in New Jersey seeking to marry that they need only dash over to Connecticut, tie the knot, come home, and expect their marriage to be recognized for all purposes in New Jersey. At the least, one would await appellate authority, since a trial court ruling is not a binding precedent on any other court, and Judge Jacobson has not actually ordered any government agency to do anything at this point to effectuate the order. On the other hand, her ruling is consistent with a growing body of court decisions in neighboring New York, where an adverse ruling on same-sex marriage by the highest court in the state has not stopped trial and intermediate appellate courts from concluding that traditional marriage recognition principles of New York law – similar to those followed in New Jersey – not only allow state officials to adopt policies recognizing such marriages, but indeed compel their recognition. Perhaps New Jersey will follow New York in this as more courts get involved in the question.

Larry Lustberg and Stephen Hyland, acting as cooperating attornies for the ACLU, jointly represent La Kia Hammond.  Lustberg argued the marriage recognition issue, based on a jointly-authored brief.  Hyland maintains a website with information about legal recognition for same-sex partners in New Jersey, and is an active proponent for achieving the right of same-sex couples in that state to marry.

Comments

[Helina]

I had heard of this but didn't really know any of the details. This was interesting. Good for them.