Does New Jersey’s Ban on SSM, which results in denial of federal benefits, violate NJ Constitution’s Guarantee of Equality?

August 16th, 2013

This is an odd, reverse federalism case from the Garden State. In the post-DOMA world, couples who are in validly celebrated same-sex unions are eligible for certain benefits (Will Baude has written about recent cases at length).

Now, a New Jersey couple claims that because they cannot be married in New Jersey, they are denied certain federal benefits, and this violates New Jersey’s constitutional guarantee of equality.

Here is a writeup from

The key question that Jacobson must determine is whether the civil union laws violate the state constitution’s equal protection mandate because they do not provide for certain benefits at the federal level, which are reserved for married heterosexual and homosexual couples.

The suit, Garden State Equality vs. Paula Dow, was filed two years ago and involves six same-sex couples and their children who sued the state two years ago, arguing that its civil union laws, which have been in place since 2006, don’t afford them the same rights as married couples.

The U.S. Supreme Court decision June 26 blocked a California ban on same-sex marriage and opened up the opportunity for married same-sex couples to receive federal benefits.

I don’t know anything about the New Jersey Constitution (but I’ve written about constitutional law in Jersey), but it seems odd that a state constitution can protect against unequal treatment by the federal government. The state claims that the plaintiffs got the “wrong defendant”:

In rebuttal, the attorney for the state said the plaintiffs have “the wrong defendant.”

They should take up issues of inequality with the federal government, Assistant Attorney General Kevin Jesperson said, since New Jersey laws clearly state that couples in both civil unions and marriages will receive the same protections and benefits.

“There is no state constitutional remedy to cure the conduct of a federal entity,” Jesperson said.

A federal refusal to extend benefits to civil union couples is a federal, not state, action, he said.

Wouldn’t it be surreal for a judge to find that New Jersey must allow same-sex marriages in order for these couples to receive federal benefits? DOMA was enacted for the exact opposite purpose–to prevent states from having to recognize other SSM, and to prevent the federal government from encouraging states to adopt SSM.

Another odd-wrinkle in our post-DOMA world.

H/T Steve R.