The Ten Most Important Family Law Cases Reported in 2013
By: John P. Paone, Jr.[(]
2013 will be remembered as the year when the State of New Jersey recognized same-sex marriage. In Garden State Equality v. Dow, the Court ended the journey for marriage equality that started with Lewis v. Harris in 2006.
Following up on 2012, Judge Marie E. Lihotz of the Appellate Division continued to distinguish herself as the seminal writer of family law opinions in New Jersey. Among other decisions, Judge Lihotz authored Gnall v. Gnall, Minkowitz v. Israeli, Reese v. Weis, and D.N. v. K.M., all top ten cases.
In 2013, the courts continued to interpret the 2010 palimony statute and its application to couples who commenced living together years prior to the law’s enactment. In addition, as alternative dispute resolution continued to play a larger role in the practice, important decisions governing arbitration and mediation were handed down.
The following are my selections for the ten most important reported cases decided in 2013. This presentation will review each opinion and the impact that it will have upon our practice. Practice tips will also be discussed as to how matrimonial attorneys can best utilize these decisions.
Garden State Equality v. Dow, ___ N.J. Super. ___ (Law Div. 2013),
2013 WL 5397372, 216 N.J. 1 (2013)
Issue: Do the guarantees of equal protection contained in the New Jersey Constitution require that civil marriage be extended to same-sex couples in New Jersey?
Holding: Yes. New Jersey’s denial of marriage to same-sex couples violates Article 1, Paragraph of the New Jersey Constitution because the plaintiffs and all same-sex couples cannot access many federal marital benefits in civil unions as a result of United States v. Windsor, 570 U.S. 12 (2013).
Discussion: The New Jersey Supreme Court decided in Lewis v. Harris, 108 N.J. 415 (2006), that New Jersey’s laws, which restricted civil marriage to one man and one woman, violated equal protection guarantees of the New Jersey Constitution. The Court held New Jersey’s statutory scheme directly denied benefits and privileges that are awarded to heterosexual couples, and therefore it violated equal protection of laws. The Court ordered the New Jersey Legislature, “must either amend the marriage statute to include same-sex couples or create a parallel statutory structure, which will provide for, on equal terms, the right and benefits enjoyed and burden and obligations borne by married couples.” The New Jersey Legislature chose a parallel statutory scheme and passed the Civil Union Act (“The Act”), which became effective February 19, 2007. The Act denied same-sex couples the designation of marriage. As part of the Act, the Legislature created the Civil Union Review Commission to study the effectiveness of civil unions for same-sex couples and evaluate its success. N.J.S.A. 37:1-36
The Lewis litigants filed a motion in aid of litigant’s rights with the New Jersey Supreme Court asserting that the Act failed to fulfill the Court’s mandate and arguing that the Court should extend civil marriage to same-sex couples. The plaintiffs relied upon the Civil Union Review Commission’s final report, which found that separate categorization in civil unions for same-sex couples encourages unequal treatment. The motion was denied without prejudice.
On June 29, 2011, the plaintiffs, a lesbian, gay bisexual, and transgender rights organization called Garden State Equality, six same-sex couples, and their children filed a four-count complaint. Several of the couples were also in Lewis but the litigants were not exactly identical. The plaintiffs alleged that the denial of the legal status of marriage caused concrete harm and resulted in persistent and widespread lack of recognition of their rights in civic and commercial dealings. The complaint asserted four constitutional claims: (1) denial of equal protection under Article 1, Paragraph 1 of the New Jersey Constitution; (2) a denial of the fundamental right to marry under Article 1, Paragraph 1 of the New Jersey Constitution; (3) denial of equal protection under the Fourteenth Amendment of the United States Constitution, in violation of 42 U.S.C.A.§ 1983; and (4) denial of substantive due process under the Fourteenth Amendment to the United States Constitution in Violation of 42 U.S.C.A.§ 1983. The State opposed the relief, arguing that the deprivations caused to New Jersey civil union couples derived from actions of the federal government and not from actions of the State, and that the Civil Union Act provided equal rights and benefits to same-sex couples. On August 10, 2011, the State filed a motion to dismiss the complaint. The Honorable Linda Feinberg, A.J.S.C. (ret.) granted the motion on counts two, three, and four. The plaintiffs filed a motion for reconsideration on count three, which was granted on March 7, 2012.
While the parties were in discovery, the Supreme Court of the United States (SCOTUS) invalidated Section 3 of the Defense of Marriage Act (DOMA) on June 26, 2013 in United States v. Windsor, 570 U.S. 12 (2013). SCOTUS found that section 3 of DOMA violated due process and equal protection guarantees of the Fifth Amendment of the United States Constitution. Windsor held that federal agencies had to treat married same-sex couples in the same manner as heterosexual couples in the administration of federal programs.
The plaintiffs filed a motion for Summary Judgment and argued Windsor required New Jersey same-sex couples the right to marry because same-sex couples were not being afforded same rights and benefits as required by Lewis. They asked the court to compel the State to allow same-sex couples to enter into civil marriages in New Jersey. Additionally, the plaintiffs argued that summary judgment be granted in favor of them on count three, which alleged Fourteenth Amendment equal rights violation. The plaintiffs alleged the status assigned to the relationship of a civil union was inferior and caused social stigma, and the result was an equal rights violation. The plaintiffs further argued that due to their inability to access federal benefits after Windsor, the decision to keep a parallel structure no longer had a rational basis.
The State argued the plaintiffs’ motion was not ripe for adjudication because the extent to which civil union partners in New Jersey would have access to federal benefits was unknown. The State argued civil union partners were already entitled to federal benefits as a result of the Windsor decision and that the State had not taken action to violate the Lewis mandate. The State argued the injury to the parties arise from federal agencies incorrect application of Windsor, which exclude civil union partners from benefits. The State asserted there was no state action, a required element for an equal protection violation, and that there was a rational basis for the distinction between a civil union and marriages for same-sex couples. The State finally argued that it was premature to grant summary judgment when there was a need for more factual discovery, and the court should consider the far-reaching policy consequences before granting it.
The court heard oral argument and invited the parties to submit supplemental briefs. The plaintiffs argued that the government implemented Windsor while excluding couples in civil unions. The plaintiffs included certifications of four Garden State members who were federal employees with civil union partners who were harmed by the exclusion. The State maintained the matter should be deferred to a later date and further argued that there were several bills in Congress to extend benefits to couples in civil unions.
As a result of Windsor, the State argued the plaintiffs’ claims were not ripe due all the policy and regulation changes. The State explained there was no clear position from the federal government as to whether the federal benefits will be extended to civil union couples. The court found the plaintiffs’ claims were ripe for adjudication, especially since there were several federal agencies that have determined how they will implement changes in law effectuated by Windsor. As a result, the plaintiffs’ are currently ineligible for benefits, and the court maintained it does not have to defer its decision while the implementation of Windsor is in flux. The court also found the State’s argument that there is currently proposed legislation in Congress that would extend federal marital benefits to civil union couples is without merit. The court explained if such an argument were to be accepted, every constitutional challenge would be rendered untenable and deflected by challenges of proposed future remedial legislation. The court argued that would be fatal to any enforcement of constitutional protections and cannot be countenanced.
The State briefly questioned the plaintiff’s standing, and the court stated it was satisfied that the plaintiffs demonstrated a sufficient stake in the outcome in the present motion in seeking eligibility for federal benefits. The court noted Garden State Equality provided affidavits from four of its members attesting they are harmed by their inability to obtain federal benefits.
The State argued the harm imposed upon the plaintiffs was imposed by the federal government and not by the state. The court questioned if the mandate from Windsor, which resulted in several federal agencies refusing to grant the same civil rights to civil union partners renders the State liable for the resulting harm. The court noted during oral argument for the Motion to Dismiss the Complaint, Judge Feinberg explained that state action could be shown by alleging a deprivation, “caused by the exercise of some right or privilege created by the state or by a rule of conduct imposed by the state or by a person for whom the state is responsible…if you build an infrastructure in which the result is a denial of benefits, that’s state action.” The court stated the analysis was persuasive in the present situation where the state created the label of a same-sex civil union in lieu of marriage. The court stated that the distinction constituted a state action with concrete effects. The result of the label rendered New Jersey civil union partners ineligible for federal benefits. The State argued Windsor condemned only federal action and articulated that domestic relations are within the province of each state. The State explained that New Jersey already deemed civil unions to be equal to marriage. The State argued that providing federal benefits is the sole responsibility of the federal government and deprivation of the benefits does not constitute state action. The plaintiffs argued the parallel structure of a distinct label, which now mattered in the context of federal benefits, counts as state action. The plaintiffs further argued the Windsor decision rendered the legislative action from the Lewis decision impermissible state action since the holding in Lewis mandated same-sex couples be afforded the same rights and benefits as married heterosexual couples.
The court noted that there is no previous case on point where the federal government applies a statutory scheme that makes state action unconstitutional. The court explained the State created a parallel marriage/civil union statutory scheme specifically sanctioned by Lewis, and this was a clear action by the State. The court further explained, that it is not just the federal government acting alone that deprives plaintiffs of federal marriage benefits, the federal government incorporates a state domestic relations structure to make its determinations, and the parallel structure results in those denial of benefits. The court held the creation of a status that affects whether same-sex couples can access federal benefits constitutes action on the part of the State, and the actions are cognizable under both the United States and New Jersey Constitutions.
The court explained that the current New Jersey statutory structure challenged by plaintiffs was in place before Windsor was decided, but it cannot ignore that the classification system which “directly affects the availability of federal marriage benefits to those couples.” The court further explained the parallel legal structure created by the New Jersey Legislature no longer provides equal access to benefits to same-sex couples, which violated the Lewis mandate and the New Jersey Constitution’s equal protection guarantee. The court held that New Jersey’s denial of marriage to same-sex couples violates the New Jersey Constitution because the plaintiffs and all same-sex couples cannot access many federal marital benefits in civil unions. The court granted the plaintiffs’ motion for summary judgment and ordered the State to permit any and all same-sex couples to marry in New Jersey.
The court entered final judgment in favor of the plaintiffs on count one and dismissed count three as moot on September 27, 2013. The court ordered that the order take effect on October 21, 2013. The State filed an Appeal on September 30, 2013.
A stay was filed by the State on October 1, 2013. On October 7, 2013, the State requested direct certification to the New Jersey Supreme Court. The Superior Court denied the request for a stay on October 10, 2013, and the State filed an emergent Appeal with the Appellant Division. On October 11, 2013, the New Jersey Supreme Court granted direct certification and took jurisdiction of the stay motion.
The Court denied the State’s motion for a stay stating it could not overcome the reality that same-sex couples in civil unions are not treated equally under the law today. The Court stated that under Crowe v. DeGioia, 90 N.J. 126 (1982), the State has not shown a reasonable probability of success on its merits. Under Crowe, the State needed to demonstrate that: (1) relief is needed to prevent irreparable harm; (2) the applicant’s claim rests on settled law and has a reasonable probability of succeeding on the merits; and (3) balancing the “relative hardships to the parties reveals that greater harm would occur if a stay is not granted than if it were.” The Court noted the public interest must be taken into consideration when the case presents an issue of significant public importance.