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N.J. Court: Gay Marriage Must Be Allowed in New Jersey

By Gabriella Khorasanee, JD on September 30, 2013 | Last updated on March 21, 2019

A New Jersey judge has ruled that the Garden State must extend its constitutional protections and allow gay marriage beginning in October. The ruling comes soon after the U.S. Supreme Court's United States v. Windsor decision, and may be a bellwether for other states.

To understand the opinion by the New Jersey Superior Court for Mercer County, one must first understand the changing landscape of the law; we now examine existing New Jersey law and precedent, as well as the Supreme Court's Windsor decision.

New Jersey Law & Precedent

In 2006, plaintiffs sought a declaratory judgment that the exclusion of same-sex marriage violated the U.S. and New Jersey constitutions. In Lewis v. Harris, the New Jersey Supreme Court held that in order to meet the strictures of the equal protections of the state Constitution, the New Jersey legislature could do one of two things: It could (1) allow same-sex marriage, or (2) create a parallel scheme for same-sex civil unions.

As a result, the New Jersey legislature enacted the Civil Union Act ("CUA") and created civil unions. The law states:

Civil union couples shall have all of the same benefits, protections and responsibilities under law, whether they derive from statute, administrative or court rule, public policy, common law or any other source of civil law, as are granted to spouses in a marriage.

United States v. Windsor and Repercussions

Earlier this year, the U.S. Supreme Court struck down §3 of the Defense of Marriage Act ("DOMA") which limited "marriage" under federal law to only include marriages between a man and woman, pursuant to the Fifth Amendment. As a result, most federal agencies are recognizing same-sex marriages, to the exclusion of same-sex civil unions. There is currently proposed federal legislation that would extend the same benefits of marriage to civil unions.

Garden State Equality v. Dow

The present case, brought by some of the original plaintiffs in Lewis, dealt with whether the parallel scheme of civil unions was constitutional because plaintiffs alleged that civil unions were inferior to marriage. After the case was initiated, the High Court decided Windsor; once the Windsor decision was handed down, plaintiffs made a motion for summary judgment claiming that the invalidation of DOMA requires New Jersey to allow same-sex marriages.

In a carefully considered opinion, Judge Mary C. Jacobson of the Superior Court of New Jersey for Mercer County held:

The ineligibility of same-sex couples for federal benefits is currently harming same-sex couples in New Jersey in a wide range of contexts.... This unequal treatment requires that New Jersey extend civil marriage to same-sex couples to satisfy the equal protection guarantees of the New Jersey Constitution as interpreted by the New Jersey Supreme Court in Lewis. Same-sex couples must be allowed to marry in order to obtain equal protection of the law under the New Jersey Constitution.


We're not fortune tellers, but we're guessing this case will get appealed; Gov. Christie will likely seek a stay to prevent gay marriages from being performed in the state, The New York Times reports. However, this case will no doubt influence other states that allow civil unions and not same-sex marriages. Considering the momentum the movement is gaining, the U.S. Supreme Court may have to weigh in again, especially if Congress doesn't act.

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