NJ Marriage Case Hits a Speed Bump

The New Jersey Supreme Court has denied Lambda Legal's motion to reopen the same-sex marriage litigation, Lewis v. Harris, in order to consider whether the state's Civil Union Act is constitutional.  The denial was without prejudice, the court's brief memorandum order stating, "We reach no conclusion on the merits of plaintiffs' allegations regarding the constitutionality of the Civil Union Act."  The Court stated that it was denying the motion because, in its view, "This matter cannot be decided without the development of an appropriate trial-like record." 

That is, the court was unwilling to take on the question whether the Civil Union Act falls too short in providing equal legal rights to same-sex couples based entirely on the plaintiffs' allegations, documentary evidence submitted in support of the motion, and what they might argue before the court.  In a dissenting opinion, three members of the court suggested that the appropriate thing to do would have been to schedule an oral argument, so the court could determine what evidence was needed and consider how such a record could quickly be compiled.  But even these dissenters apparently agreed that the motion could not be decided on the merits.  Referring to the materials submitted by the plaintiffs with their motion, the dissenters said, "Plaintiffs' record has not been tested in the crucible of a litigated matter.  Thus, we realize that we do not have a sufficient basis for debating the merits of the application, which raises a matter of general public importance and one of constitutional significance."

The problem, of course, is that the court's ruling means that the only way to challenge the Civil Union Act in court is to initiate a new action in the Superior Court, hoping to push things forward quickly to compile a factual record and, perhaps, a ruling that the Civil Union Act is unconstitutional, which the state would undoubtedly appeal (can any one doubt that Gov. Christie would demand an appeal??), and so ultimately the matter would get to the Supreme Court again.  The problem is that this could take years, since concluding an evidentiary hearing requires allowing both sides to present evidence, and both sides to prepare for trial.  And trial would probably be likely since few would doubt that the NJ state government under Christie - a loud opponent of same-sex marriage during his election campaign -- would demand plenty of time to prepare its defense and put on its case....

The dissenters bemoaned this development.  "If plaintiffs' allegations are true -- and we will not surmise whether they are or are not -- then the constitutional inequities should be addressed without any unnecessary delay," they wrote.  Therefore, we would hope that the proceedings in the Superior Court will be conducted with all deliberate speed."  That "all deliberate speed" phrase comes from the U.S. Supreme Court's comment after Brown v. Board of Education (1954) about how school desegregation should be carried out.  In the event, it stretched out for many years....

So, it's back to the drawing board for Lambda Legal in plotting a strategy to get back in to the New Jersey courts to challenge the Civil Union Act.

Comments

[Marco Luxe]

The most important non-reported fact is the status of tenure of the court. All three justices rejecting immediate review are up for retention nomination by the governor and reconfirmation by the state senate. All three "dissenters" have already been granted lifetime tenure. The political system is set up to make newer justices fear the governor's disapproval. This time, NJ got the amount of justice their system provides: not much.