A Stitch in Haste

I have not been following the same-sex marriage litigation by seven gay couples in New Jersey known as "Lewis v. Harris." For that I apologize. In any event, the New Jersey Supreme Court has announced that it will be publishing the long-awaited opinion Wednesday afternoon.

From what I understand, the procedural posture in New Jersey was similar to that in New York: the state has no bigot amendment and no DOMA, but gender-specific terms in the relevant statutes that have been interpreted to limit marriage to opposite-sex couples, as has the enactment of a domestic partnership law that affords only some of the benefits of marriage (in essence, the plaintiffs are arguing that the domestic partnership law is inadequate and therefore unconstitutionally discriminatory). The case is being litigated exclusively on state law and the New Jersey Constitution, so no further appeals by either side will be possible.

What makes New Jersey different, and is making the plaintiffs highly optimistic, is that the court does not have to choose between strict scrutiny of the ban (which of course ought to apply anyway, given the repeated and unequivocal holdings by the United States Supreme Court that marriage is a fundamental right) or the lower "rational basis review" usually applied to unprotected classes of minorities (which should still result in sanctioning gay marriage anyway, since only objectively irrational bases have ever been put forward to justify gay marriage bans).

Instead, New Jersey uses a balancing test that weighs:

1. the nature of the affected interest -- here a constitutionally protected fundamental right

2. the extent to which the governmental restriction intrudes upon it -- here a total ban, and

3. the public need for the restriction -- again, this ought to be a slam dunk, since there is no need whatsoever for the ban -- but will that matter?

More from Lambda Legal.

Other than California, this case is the last hope for progress on gay marriage in the near term. And, of course, the timing of the decision so close to election day cannot be ignored. Talk about an October Surprise.

Stay tuned.

"Denying committed same-sex couples the financial and social benefits and privileges given to their married heterosexual counterparts bears no substantial relationship to a legitimate governmental purpose. The Court holds that under the equal protection guarantee of Article I, Paragraph 1 of the New Jersey Constitution, committed same-sex couples must be afforded on equal terms the same rights and benefits enjoyed by opposite-sex couples under the civil marriage statutes. The name to be given to the statutory scheme that provides full rights and benefits to same-sex couples, whether marriage or some other term, is a matter left to the democratic process."
--Lewis v. Harris, No. A-68-05 (S. Ct. N.J., October 25, 2006) (PDF - 90 pages)

So the next question is whether the legislature (which has six months to act) will call it "marriage," "civil union," "domestic partnership," "zoop" or something else.

The questions after that will be whether out-of-state couples can, um, "whatever" in New Jersey and whether and to what extent, New Jersey same-sex "whatevers" will be recognized in other states.

And it will of course be fascinating to see the impact on the November elections.

Bravo, yet again, to the heroes of Lambda Legal.

POST SCRIPT: The vote was not "4-3" — it was 7-0 in favor of full equality of rights and privileges — The split was over whether a "marriage in everything but name only" solution comparable to Vermont's would be acceptable. The three dissenters said no and wanted an unambiguous right to same-sex marriage.

"Because this State has no experience with a civil union construct that provides equal rights and benefits to same-sex couples, we will not speculate that identical schemes called by different names would create a distinction that would offend Article I, Paragraph 1. We will not presume that a difference in name alone is of constitutional magnitude."
--Lewis v. Harris, No A-68-05 (S. Ct. New Jersey, October 25, 2006)

A bit late, but I have one hasty stitch about the New Jersey not-quite-gay-marriage decision, Lewis v. Harris.

It seems to me that anything other than full and equal access to marriage cannot achieve the results that the court demands, for precisely the reason that the bigots fear. Marriage is portable in a way that a marriage alternative is not.

It is naive, and incorrect, to proclaim that the Full Faith and Credit Clause requires states to recognize any and every marriage performed legally in another state. But it is indeed true that, under many states' statutes concerning marriage directly and "choice of law rules" indirectly, a marriage that is valid in the state where it was performed will be recognized as valid in the foreign state, even if the marriage would have been invalid in the foreign state itself.

This is not a new issue — states' marriage laws differ on many fronts: first cousins marrying, age of consent, mental competency, etc. And divorce laws are even more diverse. But this much is certain: a couple married in one state will have at least some recognition of that marriage in at least some states. And the word "some" is actually a vast understatement: "nearly universal recognition" in "nearly all states" is closer to accurate.

But civil unions? Not so much.

So when the New Jersey Supreme Court says that the legislature must craft a solution that provides all the rights and privileges of marriage, does that not include the right or privilege to (try to) have that status recognized as marriage outside the state? An emigrating "civil union" gay couple will, almost always, face a burden in the foreign state that a married gay couple would not face.

Suddenly "separate but equal" becomes demonstrably unequal, and not just in the idealistic sense of Brown v. Board of Education.

Another even less equivocal example is federal DOMA. The single biggest reason that this obnoxious, bigoted and quite possibly unconstitutional law has not been challenged is simply because essentially no one has standing to challenge it. You cannot sue to force the federal government to recognize your marriage unless you are in fact married. A "civil union" couple has no standing to challenge DOMA's federal marriage ban because — full circle — they're not married. Right now, only Massachusetts same-sex couples could, theoretically, sue over DOMA.

So again, if the New Jersey legislature does not confer full marriage equality to gays, then a fundamental "right or privilege" — the ability to sue the federal government in federal court over the question of recognition — is denied. Which was precisely what the New Jersey Supreme Court said must not happen.

What a sublime catch-22.

I suppose the counterargument to this reasoning is that the New Jersey government — its courts and legislature — can only be held responsible for guaranteeing rights and privileges within its own borders and within its own machinations. The burdens that would apply to civil union couples but not married couples when trying to export their status outward to other states or upward to the federal government are simply not New Jersey's problem and do not fall within the scope of Lewis v. Harris.

That would be a sad excuse to use, but if it was the price to pay for what was clearly an important victory, then so be it — for now.

Over time, as New Jersey gay couples (who should, regardless of the legislature's ultimate action, always refer to themselves as being "married") proliferate and as the bigot backlash finally peters out, the problematic after-effects of the separate-but-equal model will proliferate and prove themselves intractable. At which time the system will likely be scrapped in favor of full marriage equality in that state, and elsewhere.

A journey of a thousand miles must start with a first step.

It was obvious from the moment that the New Jersey Supreme Court handed down its decision in Lewis v. Harris instructing the state legislature to fully acknowledge same-sex couples, but allowing it to do so via civil unions, that the "separate but equal" paradigm would be simply unworkable, and that the state's highest court would likely be forced in a subsequent case to issue a mea culpa and require full marriage equality after all.

We may now have that subsequent case:

In a letter outlining why it was denying spousal benefits to Lambda Legal clients and UPS employee Nickie Brazier and her partner Heather Aurand, UPS said, "In summary, you cannot add Ms. Aurand as a spouse because New Jersey law does not treat civil unions the same as marriages, and the Plan requires a dependent spouse to be a spouse as defined under applicable state law."
...
Tom Walton, 42 is also a UPS driver who asked to have his civil union spouse and partner of 15 years with, Mearmon Davis, 44, added to his health care plan and was denied.

Lambda Legal has announced that it is "representing" these couples, but did not indicate whether any litigation has been initiated.

UPS' position, meanwhile, is self-contradicting:

The UPS Health & Welfare Package is an ERISA plan and is governed by federal law. ERISA pre-empts the application of any state law provisions purporting to regulate employee benefits.

And since federal DOMA dictates that there is never, no way no how, such a thing as "same-sex marriage" for purposes of federal law, all the actions by vindicating state courts and sympathetic state legislatures to extend private benefits to gay couples may actually amount to bupkes — even in Massachusetts. This is not new news.

But:

The UPS Health & Welfare Package does provide benefits for an employee's legal spouse as defined by state law. In the event New Jersey or any other state legalizes same sex marriage (e.g., Massachusetts), same sex spouses would be eligible dependents under the Plan.

That doesn't make any sense. UPS is either hiding behind ERISA or it isn't. The holding in Lewis v. Harris is unambiguous: "a parallel statutory structure, which will provide for, on equal terms, the rights and benefits enjoyed and burdens and obligations borne by married couples."

So which is it: Abide by Lewis v. Harris or abide by ERISA? To say, as UPS does, that ERISA blocks partner benefits for New Jersey ("on equal terms") civil unions but not for New Jersey ("DOMA forbidden") same-sex marriages is simply an untenable, incoherent position.

More:

The terms of the Plan are subject to collective bargaining, and UPS cannot unilaterally change Plan provisions outside of the collective bargaining process.

That is a flat-out lie. If a court or a legislature orders equal treatment of same-sex couples, then UPS is going to provide it. The union bosses have no say in the matter. And both a court and a legislature did order it, so why is the subject even being raised?

I suspect that UPS, rather than being wilfully despicable, may simply be receiving some very bad advice by its lawyers, who admittedly are treading into uncharted waters with this clumsy, clunky and wrong civil union paradigm. They will either relent quickly or stand firm. If it's the latter, then separate-but-equal may yet again be deemed inherently unequal by a high court.

A victory for gay rights, common sense, and plain language judicial interpretation:

United Parcel Service has decided to provide benefits to the same-sex civil union partners of its employees in New Jersey.
...
In May of this year, Gabriael "Nickie" Brazier, who is a driver for UPS who requested to have her civil union spouse, Heather Aurand, added to UPS's benefit plan so that the couple would not have to continue paying for a second, inferior, health insurance plan for Heather and could stop paying down a second yearly deductible. UPS responded with a letter outlining why it was denying spousal benefits to Brazier and Aurand, saying, "In summary, you cannot add Ms. Aurand as a spouse because New Jersey law does not treat civil unions the same as marriages, and the Plan requires a dependent spouse to be a spouse as defined under applicable state law."

The only indignation left to be hurled is for UPS' labor unions, particular the Teamsters, which should have promptly quashed UPS' absurd assertion that its collective bargaining agreements forbade offering the insurance (i.e., that unions would, somehow, oppose giving more employees more benefits). It was so preposterous as to be laughable. But the unions, to the best of my knowledge, stayed deafeningly silent on the controversy. Shame on them.

Meanwhile, anecdotes such as this will continue to accumulate throughout New Jersey, to the point where the either the legislature or the courts will have no choice to admit that the only way to achieve true marriage equality is to establish true marriage equality. Separate but equal is impossible.

Bravo, yet again, to the heroes of Lambda Legal.