The post-Windsor decision of some federal agencies to give benefits to same-sex married couples, but not same-sex civil union couples, constitutes unequal treatment under the state constitution. Therefore “Same-sex couples must be allowed to marry in order to obtain equal protection of the law under the New Jersey Constitution.” Now this is an interesting theory of law. I don’t know enough about the New Jersey constitution to comment on the state law issue. But I’m sure somewhere Justice Brennan, a native son of the Garden State, is smiling.
I blogged about this case earlier. Here is the conclusion of the opinion:
Update: Under this theory, any state that permits same-sex civil unions, but not marriages, will now have to allow same-sex marriages (assuming the principles of the New Jersey Constitution apply elsewhere). Perversely, this may further inhibit states from offering same-sex unions for fear that it may lead to same-sex marriage. This is effectively what happened in Perry.