As Dale and I have blogged about (see here, here, here, and here), the New Jersey courts are hearing a claim that the state’s civil union regime is no longer constitutionally adequate and that the state and federal constitutions now require same-sex marriage. That litigation was recently fast-tracked to the New Jersey Supreme Court. Today the New Jersey Supreme Court denied a stay, meaning that marriages can begin Monday.
Normally, the decision on a stay is not a decision on the merits. But this denial of the stay was not normal. After discussing factors like irreparable injury, the Supreme Court spent several pages discussing the state’s substantive arguments, concluding that:
— “The State’s thoughtful position about what federal law should provide cannot substitute for federal action.”
— “Because State law offers same-sex couples civil unions but not the option of marriage, same-sex couples in New Jersey are now being deprived of the full rights and benefits the State Constitution guarantees.”
— “The State has not shown a reasonable probability or likelihood of success on the merits.”
While the court concluded that “Additional arguments on the merits will be considered in January 2014,” today’s decision (which was unanimous) makes it pretty clear that there’s no point. The New Jersey Supreme Court recognized a right to same-sex marriage today, and it’s hard to imagine that it would change its mind. [...]