Same-Sex Marriage: N.J. Judge Says Separate Is Unequal

A New Jersey judge ruled the state must allow same-sex couples to marry, citing the Supreme Court's decision to strike down parts of the Defense of Marriage Act. Guest host Celeste Headlee speaks with Brad Sears of the Williams Institute about what the ruling could mean in the Garden State, and beyond.

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CELESTE HEADLEE, HOST:

And now, let's return to the ongoing debate about gay marriage. On Friday, a New Jersey Superior Court judge ruled that the state's system of civil unions is invalid. She says New Jersey must allow same-sex couples to marry. The judge said denying gay couples the right to marry violates the Supreme Court's ruling back in June that struck down parts of the Defense of Marriage Act. The state is expected to appeal, of course, but this ruling could be the tip of the iceberg nation-wide anyway.

People in states like Mississippi and Virginia are also challenging civil union laws and they're using the Supreme Court's decision as precedent. Here to explain what this all means is Brad Sears. He's the executive director of the Williams Institute. That's a think tank that focuses on LGBT issues, public policy and research. And he's also an adjunct professor at the UCLA School of Law. Brad, welcome.

BRAD SEARS: Thanks for having me.

HEADLEE: There are certain issues involving the New Jersey case, which are very individual, that are not the case in other states. And it's one of the reasons why people thought this was kind of a good test case, and that's partially because of a previous New Jersey Supreme Court ruling. Can you explain?

SEARS: Yeah. Back in 2006, the high court in New Jersey ruled that same-sex couples in the state were entitled to all the same benefits and rights as different-sex couples, but left it up to the state legislature to do that through a separate status, which the legislature did - civil unions or marriage. So what the court required is that under state law, everything be equal between same-sex couples and different-sex couples.

And at that point in time, whether the legislature moved forward with marriage or civil unions, those couples couldn't access federal rights. Well, all that changed this summer and same-sex couples who are married can access federal rights and benefits, but not those in civil unions. So this lower court revisited that decision and said hey, we're not saying yet that separate is inherently unequal, but just in the nuts and bolts of the rights of federal benefits, things are on equal for these civil-union couples now in New Jersey.

HEADLEE: So let me try to explain that for somebody like me who needs it really, really simple. Basically, the New Jersey Superior Court had already said, you have to give same-sex couples the same rights and benefits as anybody else through the civil unions. And then the Supreme Court ruled on the Defense of Marriage Act saying that look, you have to give everyone federal benefits, even same-sex couples. So what this judge is basically saying is that the civil union, because it's different from a marriage, doesn't accord same-sex couples the same rights and benefits as those who are married. Right?

SEARS: Exactly. You're right. So in the wake of this summer's ruling by the Supreme Court, we've seen these announcements by federal agencies saying, yeah, we're going to treat same-sex couples the same for federal tax purposes, for leave-from-work under the Family Medical Leave Act, but we're not going to give those same rights to folks who are in civil unions. So the civil union statute in New Jersey is no longer providing the same rights to same-sex couples.

HEADLEE: OK. What about civil union statutes in other states?

SEARS: Well, I think that's - this state really is a signal to couples in those other states and to the states themselves that their statutes are also kind of separate and unequal. Their couples are losing out from these federal rights and benefits, which probably not only is harming those individual couples, but the state itself through benefit programs, which state and federal governments fund together.

HEADLEE: That's basically - I mean, the Supreme Court said you have to give them the federal rights and benefits because otherwise you're not treating them the same, right, equal protection.

SEARS: Right. Right.

HEADLEE: But they kind of left it up to the states how to deal with it. But this judge's ruling makes it sound like the interpretation of that Supreme Court decision was broader. It sounds to me like she's basically saying look, the Supreme Court says everyone gets equal protection, even same-sex couples, and civil unions don't do that. That would seem to me to be a precedent that could spread through all 50 states.

SEARS: Yeah, I think that's the kind of the larger message of the Supreme Court ruling. And the momentum that's happening now is this signal that equal protection does require equal treatment for same-sex couples. Now Justice Kennedy was careful to limit his opinion to the Defense of Marriage Act...

HEADLEE: Right.

SEARS: ...In the Windsor decision this summer, although Justice Scalia basically challenged that. He took whole paragraphs of the Kennedy opinion and took out the word Defense of Marriage Act and put in language for state marriage laws and says, hey, this reasoning applies. And because of that, we've just seen an explosion of litigation since the decision. I think there are 29 separate cases across the country right now dealing with marriage for same-sex couples, including in surprising places like the states in the South that you described at the beginning.

HEADLEE: In Virginia, especially, and some others. Tell me about another case that could be the next one to be important.

SEARS: Well, I think the next case to watch out for is a case here in the Ninth Circuit on the West Coast dealing with two other states that have granted the rights and benefits, under state law, to same-sex couples through civil unions but have not yet given them the label of marriage. That case was filed before Windsor - the court decision this summer - but it definitely will be influenced by it. So there'll be briefing in the Ninth Circuit for that court this fall, and I think that's one to keep an eye on in light of this New Jersey decision and the Windsor decision.

HEADLEE: And as I mentioned, we also have the Virginia case getting a lot of attention. The 29 lawsuits that you mentioned are in 18 different states. I assume some of those were filed before the Supreme Court decision, but 100 percent of them will be affected by it? Is that accurate, Brad?

SEARS: Yeah, that's accurate. You know, if you look at the Supreme Court decision, it really sounded in the higher registers of equality. Not in the cases where separate is unequal, but where separate is inherently unequal because of the dignity harm that same-sex couples feel when they are not granted separate - the equal status of marriage but told that their relationships are really only worthy of a second-tier status.

HEADLEE: Can I stop you there for just one second 'cause I want to, again, relay that in kind of the simple language that I understand.

SEARS: OK.

HEADLEE: The dignity potion that you're talking about means that even if you had a civil union, which literally has every single benefit as a marriage, just a different name, that because it doesn't meet the dignity measure that - by calling it a civil union - that would still be possibly unconstitutional?

SEARS: Yeah. And, you know, if you think about it, if you go and tell your family or your friends that you're in a civil union as opposed to marriage, that has a different meaning for them. If you show up at the DMV or a hospital and say, I'm in a civil union, the person behind the desk may or may not know what you're talking about, but everyone would know what you're talking about if you're saying this is my spouse. And so those are the kind of impacts that the Supreme Court was talking about. Very similar to an earlier part of our legal history when we had separate institutions for blacks and whites, and there was no equalization of services that would undo the stigma that the separation itself caused.

HEADLEE: All right. So let's go back to New Jersey where we started this whole thing, in which we just had this decision from the judge saying that the state has to allow same-sex couples to marry. And in fact, she even put a deadline on that. The state is going to appeal. What are the chances that - this, what, seems to be a big victory for those who advocate for same-sex rights, could end up being a defeat? Could the state win in the Superior Court there and still avoid allowing same-sex couples to marry?

SEARS: I think that's unlikely given the makeup of the higher courts in New Jersey. And if you go back to 20006, even the decision by the Supreme Court there was decided by one vote. But look what's happened in the country since 2006, really a sea change in how courts, the public, legislators view marriage for same-sex couples.

And I think that's the real indicator, other indicator, of the Windsor decision this summer and what's happening. There was no big backlash to that decision that summer. So I think the legal doctrine and arguments have always been there to support marriage for same-sex couples, and now public opinion has caught up and judges will feel comfortable moving ahead.

HEADLEE: Brad Sears is the executive director of the Williams Institute. He's also an adjunct professor at the UCLA School of Law, and he joined us from UCLA's campus. Brad, thank you so much.

SEARS: Thank you.

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