Analysis of NJ Same-Sex Marriage/Civil Union Decision: Garden State Equality, et al v. Dow, et al

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Moments ago, the Superior Court of New Jersey issued a ruling in Garden State Equality, et al v. Dow, et al in favor of same-sex marriages.  The decision can be viewed by clicking here.  The goal of this article is to explain the decision and provide some analysis of its impact.

To understand the decision, you need to also understand the context of the decision.  In 2006 in Lewis v. Harris, the Supreme Court of New Jersey issued a holding that equal protection required that the same benefits extended to heterosexual couples must be extended to homosexual couples.  New Jersey, however, included a caveat.  In the court’s opinion, equal protection permits different labels as long as the rights available to each set of couples are equal.  As a result, New Jersey passed a law allowing for civil unions for same-sex couples which were identical to heterosexual marriages despite the different titles.  The utilization of civil unions by the legislature was then challenged , but a divided court upheld the use of civil unions.

Then, earlier this year, the US Supreme Court in Windsor invalidated the Defense of Marriage Act (DOMA) which resulted in the demand that the federal government recognize same-sex marriages.  This extended a plethora of rights and benefits to same-sex married couples to which they were previously denied.  The relevant intersection with the Garden State case is that the extension of benefits following Windsor has been consistently limited to married couples and NOT civil unions.

The basis of the challenge in Garden State then, which was ultimately validated by the court in New Jersey, is that Windsor is a game changer and, as a result, civil unions are no longer equal to heterosexual marriages because the designation of “civil union” denies same-sex couples all of the federal rights and benefits available to heterosexual marriages.  The court provides a full list of examples of the type of benefits denied to same-sex couples in civil unions.  The court, therefore, found that the “ineligibility of same-sex couples for federal benefits is currently harming same-sex couples in New Jersey in a wide range of contexts: civil union partners who are federal employees living in New Jersey are ineligible for marital rights with regard to the federal pension system, all civil union partners who are employees working for businesses to which the Family and Medical Leave Act applies may not rely on its statutory protections for spouses, and civil union couples may not access the federal tax benefits that married couples enjoy.”  As a result, the court deemed that the distinction between marriages and civil unions was no longer superficial and therefore in violation of the requirements of Lewis.  It concluded that “Same-sex couples must be allowed to marry in order to obtain equal protection of the law under the New Jersey Constitution.”

Analysis for Pennsylvania: While a significant victory for same-sex marriage, the effect will be limited to New Jersey.  New Jersey’s situation is unique in that its court system previously required that same-sex couples be afforded the same benefits as heterosexual couples.  This is wholly distinct from Pennsylvania, which has yet to require equal treatment either superficially or substantively of same-sex and heterosexual couples.  That does not change my long-term projection for same-sex marriage in Pennsylvania, but the impact of the decision stops at the Commonwealth’s borders, in my opinion.

Please feel free to email at with any questions or concerns.  Thank you.

Reblog: What Do the DOMA and Prop 8 Decisions Mean for Gay Marriage in Pennsylvania?

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Moments ago, the Supreme Court of the United States issued two historic rulings concerning gay marriage.  In the first ruling, United States v. Windsor, the Supreme Court ruled that DOMA (Defense of Marriage Act) is unconstitutional.  Federally, the result is that valid same-sex marriages must now be recognized.  This will entitle same-sex couples to the same benefits as heterosexual marriages, including the right to file joint federal income taxes and share federally provided medical benefits.

The second decision, Hollingsworth v. Perry, dismissed the appeal in the Prop 8 case.  Some background is needed to understand this decision.  When Prop 8 was challenged a trial was held on its constitutionality.  At the conclusion of the trial, the court held that Prop 8 was unconstitutional and unenforceable.  At that point, the government for California conceded and accepted the ruling.  The supporters of Prop 8, however, filed an appeal pursuant to a unique California law.  That appeal reached the Supreme Court.  Today, the Supreme Court said that private individuals (e.g., the supporters of Prop 8) cannot take an appeal when the government (the party actually involved in the case) declines to appeal.  The ruling, therefore, is more procedural than substantive, meaning it did not directly address gay marriage.  The result, however, is that the trial court’s ruling will stand and Prop 8, which prohibited same-sex marriage in California, is unconstitutional, invalid, and unenforceable, thereby opening the path for same-sex marriages in the state.

The question many here at home are now asking is: what does this mean for gay marriage in Pennsylvania?  Immediately, there will be no impact because Pennsylvania has its own version of DOMA (23 Pa.C.S. § 1704).  The Pennsylvania law prohibits the Commonwealth from recognizing other states’ same sex marriages. As a result, same-sex marriages from the 12 states that grant them are still prohibited in Pennsylvania.  A same-sex couple married in another state will still be denied the right to share medical benefits provided by the Commonwealth, denied the right to file a joint tax return, denied the right to inherit from the other automatically and at the lower tax rate, and denied the right to divorce here in Pennsylvania.

Long-term, however, it puts the Commonwealth’s version of DOMA is significant peril.  What I predict will happen next is that a validly married same-sex couple will challenge Pennsylvania’s DOMA as unconstitutional, either because they were denied a divorce or inherited at a higher tax rate.  Even if the Supreme Court of Pennsylvania ultimately upholds the statute on appeal, we know now that if the matter is appealed to the Supreme Court of the United States, the state’s statute will almost certainly be ruled unconstitutional by the same rationale as the federal DOMA.  The constitutionality of the statute pursuant to the Full Faith and Credit Clause will also be in question, providing alternative grounds for its invalidity.  The result is pressure on both the legislature and the judiciary to strike down DOMA.  I predict that within five years, DOMA will either be repealed by the legislature or deemed unconstitutional and thereby unenforceable by the judiciary.  This will result in same-sex couples being entitled to the same rights as heterosexual couples in Pennsylvania.

If you are a same-sex couple in Pennsylvania and wish to further discuss the impact of these two rulings on your marriage, please contact me at  Please check back on our blog for more analysis of these two historic decisions.  Thank you.