Michael Dorf, Jurisdiction Wonk, Tells NJ Supreme Court How To Make Their Judgment in Garden State Equality Unreviewable

September 30th, 2013

Michael Dorf has a great post exploring the recent NJ Trial Court Decision that, in effect, forces NJ to offer same-sex marriages, and not just same-sex civil unions. I blogged about it last week.

At the end, Michael gives the NJ Supreme Court the silver bullet that will make their judgment unreviewable:

Going forward, the lesson of the foregoing analysis for the NJ intermediate appellate and Supreme courts should be clear: To make the ruling bullet-proof, be crystal clear in any opinion affirming the basic ruling of the trial court that the factual assessment of what the federal agencies are doing is an entirely sufficient basis for the conclusion that civil unions no longer satisfy Lewis.  Here is the language I would include at the end of any NJ Supreme Court opinion that ends up affirming the trial court ruling:

In summary, we hold that regardless of whether Windsor is best read to treat state civil unions as “marriages” for purposes of federal law, it is an undisputed fact that many federal agencies have already concluded that civil unions will not be treated as marriages for purposes of federal law.  In light of that fact, the State of New Jersey no longer satisfies its state constitutional obligation of equal protection under Lewis by affording same-sex couples the right to enter civil unions.  Only “marriage” now satisfies that obligation.

You’re welcome, New Jersey.

Let’s check back in a year or so, and see how the Jersey Supreme Court handles this issue.