Understanding Today’s Ruling About New Jersey Civil Unions

A New Jersey trial court just invalidated New Jersey’s current civil union regime, holding that the state is required to let same-sex couples marry, not just get civil unions. I’ve blogged about this issue before, but let me quickly summarize the situation:

Both sides of the litigation agree that same-sex couples are entitled to access all of the same benefits as united heterosexual couples. That’s a consequence of the New Jersey Supreme Court’s interpretation of the state constitution in Lewis v. Harris. From 2006-2013, that obligation was satisfied by civil unions, which have the exact same effect under state law as marriage does.

At the same time, it is now evident that at the federal level, same-sex couples in civil unions are not receiving the same benefits as married same-sex couples. (This was a little less clear at the time New Jersey wrote its main brief, but the most recent agency actions pretty uniformly favor marriages over civil unions.)

So this is clearly a problem. The question is what to do about it. The plaintiffs want the state to let them get married. If same-sex couples can get married, they can get federal benefits. The state, by contrast, wants to blame the problem on the federal government. If the agencies would just recognize civil unions, the problem would go away.

This is actually a pretty interesting severability problem. If a constitutional problem arises because of the intersection of two different legal rules, how does a court decide which one to invalidate?

In this case, for example, you might say:

— The court should invalidate the state law; after all, one of the claims is brought under the state constitution, and under the Supremacy Clause, the state constitution can only be enforced against state law, not against federal law.

On the other hand, you might instead say:

— The court should invalidate the federal agency rulings. First of all, you can do that without reaching any constitutional questions, because there’s a plausible argument that purely as a matter of statutory interpretation, civil unions count as marriages and spouses under federal law. (I’ve briefly described this argument here.) Second of all, even if you have to reach a constitutional issue in this case, there’s a federal constitutional claim too, so you can invalidate the federal rulings instead.

Unfortunately, perhaps because of the way the case has been briefed, court did not do a very good job of explaining why it picked one side rather than the other. It actually explains the dilemma really well (at page 25), but its answer to the dilemma mostly gets lost in some discussion of ripeness and standing.

— As near as I can tell, the Court’s answer to the statutory question is a simple statement on page 7 that “the Act denied same-sex couples the designation of ‘marriage’ for their relationships,” citing NJSA 37:1-28. But I’m not sure 37:1-28 says that, and the court doesn’t mention 37:1-33.

— Its answer to the state’s constitutional point comes briefly at p. 48, where the court says “it is true that one of the potential remedies that exists to cure the harm identified by plaintiffs is for the federal government to recognize New Jersey civil unions,” but “that remedy is beyond the jurisdiction of this court to compel and would likely require plaintiffs to initiate a multitude of lawsuits with uncertain outcomes.”

This might be right, but I’m not sure. A state court has jurisdiction to say what the law is, including whether a federal law is unconstitutional, if that’s relevant to the case before it. The court appears to conclude that the most important thing is that its got the state in front of it as a party so it can wrap the whole thing up quickly; but I don’t know if that’s the right way to go about deciding which of two legal regimes is unconstitutional. Would the answer have been different if the suit were brought in federal court against a federal agency?

If the state decides to appeal this issue, I hope they can do a better job of focusing the inquiry on appeal. (Here’s coverage from Josh Blackman and Buzzfeed.)

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