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GARDEN STATE EQUALITY, ET AL., Plaintiffs-Respondents, v.


Civil Action official her in PAULA DOW, al of Gener capacity as Attorney New Jersey; JENNIFER VELEZ, in as capacity official her y Jerse New of the er ssion Commi ces; Servi Human Department of and MARY E. O'DOWD, in her as capacity official y Jerse New the of er ssion Commi r Senio h and Healt Department of Services, Defendants-Appellants.

Sat Below: Hon. Mary C. Jacobson, A.J.S.C.


John J. Hoffman Acting Attorney General of New Jersey R.J. Hughes Justice Complex P.O. Bax 112, 25 Market Street Trenton, New Jersey 609-633-1309

Kevin Jespersen Assistant Attorney General Of Counsel Jean Reilly Deputy Attorney General On the Brief


.......1 PRELIMINARY STATEMENT ................................... ............2 PROCEDURAL HISTORY AND STATEMENT OF FACTS .......... ARGUMENT I. THE COURT SHOULD STAY THE ORDER BECAUSE THE GRAVITY BE OF THE ISSUE MANDATES THAT THE APPELLATE COURTS THE W REVIE TO Y TUNIT ALLOWED A MEANINGFUL OPPOR LOWER COURT'S RULING, .AND THE CROWS FACTORS WEIGH .......4 IN FAVOR OF THE STATE ......................... arable A. Absent a Stay, the Sate Will Suffer Irrep .....5 ..... ..... ..... ..... ..... Injury ............... of B. Respondents' Claim Raises Unsettled Questions ........7 Constitutional Law ......................... has a Reasonable Probability of C. The State ..........8 Ultimate Success ......................... ome the 1. Respondent will not be able to overc ity valid highest presumption of constitutional ......8 ..... that attaches to statutory enactments 2. Respondents' claims fail on federalism ....................................9 grounds ..... zable, 3. The State's action is not legally cogni State the use to and the Court lacks power State of Constitution to vindicate the right .........14 citizens to federal benefits .......... State..........22 D. The Equities Weigh in Favar of the

......................... CONCLUSION .........................


TABLE O~ AUTHORITIES CASES Band's Refuse Removal, Inc. v. Fair Lawn, 62 N.J. Super. 522, 561 (App. Div. 1960) .................8 Baker v. Vermont, 744 A.2d 864 (Vt. 1999) ..................................15

Coalition for Economic Equality v. Wilson, 6 122 F.3d 718 (9th Cir. 1997) .............................. Comm. To Recall Robert Menendez from the O~tice of U.S. ....5 Senator v. Wells, 413 N.J. Super. 435 (App. Div. 2010)
Cozen O'Connor, P.C. v. Tabits, 2013) ....12 2013 U.S. Dist. LEXIS 105507 (E.D. Pa. July 29, Crowe v. DeGoia, ................5 90 N.J. 126, 133 (1982} .................. 95 N. J. Eq. Grausman v. Porto Rican-American Tobacco Co., ...................8 1155, 167 (Ct. of Ch. 1923) ............

Greenberg v. Kimmelman, .....................22 99 N.J. 552 (1985) .................. _. Hamilton Amusement Ctr. v. Verniero, 156 N.J. 254 (1998), cert. denied, 527 U.S. .................9 1021 X1999) .............................. Hollingsworth v. Perry, 133 S. Ct. 2652 (2013) .....................13 U.S. Casino In re Application of Boardwalk Regency Corp. for a Div. (App. 350 License, 180 N.J. Super. 324, 343,

...........8 1981) ..........................................

Jordan v. Roche,

.................11-12 228 U.S. 436 (1913) ..................

Lanco, Inc. v. Director, Div. of Taxation, ......................5 379 N.J. Super. 562 (App. Div. 2d05y Lewis v. Harris, ................passim 188 N.J. 415 (2006) ..................


U.S. Maryland v. King, 133 S. Ct. 1 (2012) .....................................5-6 McNeil v. Legislative Apportionment Comm'n, 176 N.J. 484 (2003} .......................................4 Minnesota v. Nat'l Tea Co., 309 U.S. 551, 557 (1940) ................................17

N.J. Sports & Exposition Auth. v. McCrane, 61 N.J. 1, appeal dismissed sub nom., Borough of E. Rutherford v,. N.J. Sports & Exposition Auth., 4d9 U.S. ............8 943 (1972) .................................... New York v. United States, ....16, 17 505 U.S. 144 (1992} .............................. Palamar Cgnstr., Inc. v. Pennsauken, ..........4 196 N.J. Super. 241 (App. Div. 1983) ............ Penpac, Inc. v. Morris County Mun. Util~. Auth., ......................4 299 N.J. Super, 288 (App. Div. 1997)
Printz v. United States, ......................16, 17 521 U.S. 898 (1997) ............ State v. Casavina, 163 N.J. Super. --............................8 27, 29 (App. Div. 1978) ...... State v. Ever, ..........................19 175 N.J. 355 (2003) ............ State v. Fortin, ....................22 198 N.J. 619 (2009) .................. State v. Green, ................19 346 N.J. Super. 87 (App. Div. 2001) ......

State v. Mallica,

................19, 20 --....114 N.J. 329 (1989) ..................

State v. Stelzner,

.....................19 257 N.J. Super. 219 (App. Div. 1992)


Terenzio v. Nelson, 107 N.J. Super. 223 {App. Div. 1969) .....................12 Unified States v. Chicago, Burlington & Quincy R.R. Co., 237 U.S. 410 (1915) ......................................11 United States v. Windsor, (2013) ...............................passim 570 U.S. at STATUTES 1.7. N.J.S.A. 37:1-31 ...........................................2, 12 N.J.S.A. 31.1-33 .......................................3, 10, FEDERAL REGISTER .......23 78 Fed. Reg. 54633 (Sept. 5, 2013) ..................... PENDING FEDERAL LEGISLATION H.R. 31.35, 113th Cong., 1st Sess. (2013) ("Domestic Partnership Benefits and Obligations Act")


H.R. 3050, 113th Cong., 1st Sess. (2013) ..................24 ("Social Security Equality Act of 2013) H.R. 2834, 113th Cong., 1st Sess. (2013) .................24 ("Federal. Benefits Equality Act") ....... H.R. 1751, 113~h Cong., 1st Sess. (2413) ........24 ("Family and Medical. Leave Inclusion Act") ....... S. 1529, 113th Cong., 1st Sess. (2013) ("Domestic Partnership Benefits and Obligations Act")


S. 857, 113th Cong., 1st Sess. (2013) ("Family Medical Leave Inclusion Act") MISCELLANEOUS


Cooley, Thomas. A Treatise on the Constitutional ....18 Limitations (1868) ................................... Sex Spouse Dep t ~f Defense Press Release, "DoD Announces Same ....24 ....... ....... ....... ....... Benefits" (Aug. 14, 2013) iv

.......23, 24 ZRS Rev. Rul. 2013-17 .............................. Chief Letter from Internal Revenue Service, Office of the R H & or, Advis Tax r Senio Counsel to Robert Shair, ......23 ..... ..... ..... Block (Aug. 30, 2011) ............... Transcript of August 15, 2013 Oral Argument on Plaintiffs' Motion for Summary Judgment in ..............17 Garden State Eauality v. Daw ............... v. Perry, Transcript of Oral Argument, Hollingsworth ...12 133 S. Ct. 2652 (2013) (No. 12-144) ..... U.S. "Statement from U.S. Citizenship and Immigration Services, itano" Napol Secretary of Homeland Security Janet ............24 ..... ..... (July 1, 2013) .................... m for Secretaries of the U.S. Department of Defense, "Memorandu Military Services" Military Departments, Chiefs of the .........................24 (August 13, 2013) ............... se, "New Guidance Issued by U.S. Department of Labor, News Relea ages and Employee US Labor Department on Same -Sex Marri 2013} .....................24 Benefit Plans" (September 18, "Benefits Administration U.S. Office of Personnel Management, .................24 Letter, Number: 13-203" (July 17, 2013)

PRELIMINARY STATEMENT On September 27, 2013, the I~onarable Mary C. Jacobson, A.J.S.C., issued an Order mandating that, beginning October 21, 2013, the Sate issue marriage licenses to same-sex couples. State hereby makes an emergent motion seeking a stay of pending final resolution of The this




Respondents' claims on appeal. In granting summary judgment, the motion court

required acknowledged that the case posed "analytic difficulties," raised "grappling" with "sensitive 1ega1 and societal issues," and "tho.rny procedural" concerns. Slip op. at 3, 5. Da3, 5. The

cult issues of court further noted that the case involved "diffi action concerns." federalism" and raised "rather complicated state Id. at 5. Day. Because "many of the issues that arise in this

court had to case are not only complex, but also unique," the venture guide." into a "tangled thicket" Dab, 32. with "no clear precedential

T at 6, 32. Id

Finally, the court recognized

responses" that ~.he debate over same -sex marriage "elicits strong and has "generated many close decisions by the courts." Da3. Id. at 3.

militate Individually and cumulatively, these considerations When novel policy

in Favor of this Court saying Judge Jacobson's Order. constitutional considerations, principles are issues with highly

significant and

far-reaching involved, a

implications, court 1 should



every effort to








ge requests that the Court stay the Order mandating same -sex marria until the Supreme Court, the ultimate arbiter of substantial

on. constitutional issues of first impression, renders its decisi PROCEDURAL HISTORY AND STATEMENT OF FACTS In Lewis v. Harris, the Supreme Court was faced with the couples with question of whether the State must provide same -sex opposite-sex all "statutory benefits and privileges available to couples through New Jersey's civil marriage laws." 427 (2006) (emphasis added). threads of the plaintiffs' 188 N.J._ 415,

The Court analytically de-tangled two marriage argument: the benefits of

marriage and the name of marriage. Id. at 433. the Legislature two equally constitutional

The Court afforded options: amend the

s or, preserving the marriage statutes to include same -sex couple parallel statutory traditional definition of marriage, create a with all o~ the same structure that would provide same-sex couples - married couples enjoy under the State's rights and benefits that taws. Id. at 423. in The Court did "not presume that a difference Td. at X56, 462.

name alone is of constitutional magnitude."

the Civil Tn response to Lewis, the Legislature adopted provides that Union Act ("Act"), N.J.S.A. 37:1-28 to -36, which "[c]iv~_1 union couples shall have all of the same benefits,

protections and responsibilities under law spouses in a marriage." N.J.S.A_ 37:1-31. 2

as are granted to The Act specifically

s marriage, provides that, for the purpose of every law, the term a civil union. husband, wide, and spouse "sha11 include" persons in N_._J.S.A. Garden 37:1-33. Subsequently, an LGBT several same -sex couples and



advocacy organization,

filed a

g other things, the Complaint alleging that the Act violated, amon SLate's equal proteCtian guarantee. Da85.

Court issued On June 26, 2013, the United States Supreme U.S. its decision in United States v. Windsor, 570 2675 (2013). 133 S. Ct.

enactment The Court struc}t down DOMA because the "objective" of a state l.aw that "sought to The

"frustrate [d]" the

eliminate inequality." Court held that

Windsor, supra, 133 S. Ct. at 2694. Federal Government" may not



ns whom the "State seeks to restrictions and disabilities" an perso protect." Id. at 269. luence The federal, government may not "im.f

es" about domestic relations or interfere with state sovereign choic or "discourage enactment" of state laws that protect same -sex


Id. at 2693. On the heels a of Windsor, judgment and the Garden State After Equality briefing, by the

Plaintiffs argument, parties,



motion. repeated

supplemental the court

briefing, for

updates on State





permitting same -sex couples protection grounds and issued an Order to marry beginning October 21, 2013. Da52, 95. Da97. The State moved The State filed a

n. for a stay; the court denied the motio 3

e Notice of Appeal and, on October 4, 2013, a motion with the Suprem Court seeking direct certification. Da99, Da101.

For the reasons explained below, the Court should stay merits. the trial court's Order pending ultimate resolution of the ARGUMENT THE COURT SHOULD STAY THE ORDER BECAUSE THE OF THE ISSUE MANDATES THAT THE GRAVITY APPELLATE COURTS BE ALLOWED A MEANINGFUL COURT'S LOWER THE REVIEW TO OPPORTUNITY FAVOR IN WEIGH RS RULING, AND THE CROWS FACTO OF THE STATE. when an "The standards informing the g.rarit of a stay d must include not issue of significant public importance is raise to disputes between only the traditional [Crowe] factors applicable can.siderations of the private parties but also, and most paramount, public interest." N.J. n, 176 McNeil v. Legislative Apportionment Comm' I-Tere, the Supreme Court has already





e marriage" has "fardetermined that the issue of "how to defin r" the traditional reaching social implications" and that to "alte definition of marriage "would render a profound change in the

n of ancient origin." public consciousness of a social institutio Lewis, supra, 188 N.J. at 461-62. Appellate courts have granted a See, e.g., Penpac, Inc.

stay in cases with far less social impact.

Super. 288, 293 (App. v. Morris County Mun. Uti1s. Auth., 299 N.J. Div. 1997) (waste management case); Palamar Canstr., Inc. v.

(contract Pennsauken, 196 N.J. Super 241, 245 (App. Div. X983)

bidding Case). That constitutional issues are in dispute serves to See

a stay. heighten rather than diminish the necessity for

case involving McNei11, supra, l76 N.J. at 484 (granting stay in constitutional issue because of "paramount' consideration of

dez from the Office "public interest"); Comm. To Recall Robert Menen
. 435, 458 (App. Div. 2010) o~ U.S. Senator v. Wells, 413 N.J. Super

tantial constitutional (noting that, "a~ we have addressed a subs

Inc. v. Director, Div. of issue, we shay our decision"); Lanco, n.5 (App. Div. 2005) (holding Taxation, 379 N.J. Super. 562, 573

issue involved, we stay the that, "because of the constitutional direct appeal"). remand if plaintiff files a timely In short, the

nnia-old definition of marriage issue of whether to retain the mille Court should stay the Order is of such social import that this chance to review the novel until the appellate courts have had a meaningful manner. constitutional issues in an orderly and because the Crowe The Court should also stay the Order factors weigh in favor of the State.
A. r Irreparable Absent a Stay, the State Will Suffe Injury. Preliminarily, the State suffers an injury to its

democratically enacted laws sovereign interests whenever one of its is declared unconstitutional. Cf. Maryland v. King, U.S. ,

bers) 133 S. Ct. 1, 4 (2012) (Roberts, C.J., in cham

("Any time a

statutes enacted by State is enjoined by a court from effectuating ers a form a~ irreparable representatives of its people, iL suff v. Wilson, 122 F.3d 718, injury."); Coalition for Economic Equality 719 (9th Cir. 1997) (same). Here, however, several factors

exacerbate this inherent harm. tional ground not First, the court below tilled constitu previously furrowed. declared that the Never before has any court at any level under the State

validity of

a State statute

udes of third party actors with Constitution depezzds on the vicissit over whom it has no control. whom the State has no nexus and Such

far ralism implications that radiate a ruling has widespread fede

iage. beyond the context of sa.mP-sex marr

If the constitutionality

in itself, then no statute is of a Sate statute does not inhere cious or inadvertent. safe from federal manipulation, cons ses a Second, the right of sovereignty impo ic interest. duty on the State to protect the publ ap rens ~atriae As the Lewis

of marriage has "far-reaching Court recognized, i~he definition the traditional definition of social implications," and to "a.lter" marriage "would render a profound change in the public Lewis,

of ancient origin." consciousness of a social institution

supra, 18B N.J. at 461-62. a

such It is in the public interest that

r, take place not because a profound change, if it is to occu

gent, thoughtful, and thorough -single judge -- no mater how dili

ate ordered it, bud rather because the Supreme Court, the ultim arbiter, has deemed it necessary. social institution prematurely, To overhaul such an ancient or in a manner


the public ultimately deemed unnecessary would injure not only est. interest, but the State that represents this inter Third, the harm would be irremediable. As the Perry case

marriage licenses in California demonstrated, once the State grants ally impossible, to even a handful o~ same -sex couples, it is virtu that action later. both in practical and legal terms, to undo B. ions o~ Respondents' Claim Raises Unsettled Quest Constitutional Law. The Court should grant a stay because Respondents'

enge to the Civil Union interpretation of Windsor and their chall itutional law. Act present unsettled questions of const The motion

into a thorny thicket with court acknowledged that it had to "wade "many of the issues that no clear. precedential guide" and that but also unique." arise in this case are not only complex, op. at 6, 32. Dab, 32. Slip

The court admitted that neither it nor the

that "the manner in which Respondents could find any case that held tory scheme" can render the federal government applies a state statu the "state's actions unconstitutional." Id. at 37. Da37.

at stake, When novel, complex constitutional issues are consistently granted stays New Jersey courts have historically and judge to overturn the instead of allowing a single Law Division

established system. Tobacco Co., 95 N

See, e.~, Grausman v. Porto Rican -American J Eq. 1155, l67 (Ct, of Ch. 1923) (granting

and one of stay when presented with "a case of first impression walk Regenc great public importance"); In re Application of Board (App. for a Casino License, 180 N.J. Super. 324, 343, 350 of apparent Div. 1931) (noting that case involved "significant case se and Supreme first impression" involving issuance of casino licen appeal); State v. Court had granted stay pending resolution on 1978) (noting that it Casavina, 163 N.J. Super. 27, 29 (App. Div.

appeal because case had granted stay on an "emergent" basis pending Band's Refuse Removal., presented "matter of fa.rst impression");
(App. Div. 1960) (same). Inc. v. Fair Lawn, 62 N.J. Super 522, 561


at Ultimate The State has a Reasonable Probability Success. The State is ab1.e to make the requa.site showing of

reasonable probability of success on appeal.l 1. ome the Respondents will not be able to overc ity that valid highest presumption of constitutional attaches to statutory enactments. the time of Chief Justice

"[J~udi.cial decisions from

principle that Marshall reveal an unswerving acceptance of the of an act of the every po~~ible presumption favors the validity

the movant As the Crowe Court noted, the requirement that 1 l "is appea on ss demonstrate a reasonable probability of succe of a ity" valid to the tempered by the principle that mere doubt as refusing to maintain claim or defense "is not an adequate basis for 126, 1.33 (1982). the status quo." Crowe v. DeGoia, 90 N.J.


N.J. Sports & Exposition Auth. v. McCrane, 61 N.J.

N.J. 1,' 8, appeal dismissed sub nom., Borough of E. Rutherford v. Sports & Exposition Auth._, 409 U.S. 943 (1972). Courts must give

"unmistakably deference to a legislative enactment unless it is shown to run afoul of the Constitution." Lewis, supra, 188 N.~. at

ero, 156 N.J. 254, 459; see also Hamilton Amusement Ctr. v. Verni e constitutionality of 285 (1998) (plaintiffs can rebut presumptiv ed violation is "clear statute "only upon a showing" that the alleg d, 527 U.S. 1021 (1999). beyond a reasonable doubt"), cert. denie and this burden, Here, while acicnowledging this standard even though they could cite the motion court ruled for Plaintiffs "the manner in which the no precedent to support their theory that tory structure "makes the fEderal government applies" a state statu state's actions unconstitutional." Slip op. at 37. Da37. The

burden from the Plaintiffs to court also impermissibly shifted the the State "could not point the State when the Court asserted that seizure context to support its to any cases outside the search and analysis." Td. at 39. Da39. On appeal, Respondents will not be

n of constitutional validity able to overcome the highest presumptio the Sta.te's statutory scheme. that the appellate courts must afford 2. grounds. Respondents' claims fail on federalism

below adopted, is Respondents' theory, which the court flawed in several respects. First, the court erred when it

civil union is the legal asserted ghat the State's view that a D

equivalent of

marriage under State law "is not binding on the Id. at 47. Windsor repeatedly emphasizes

federal government."

that has long that "regulation of domestic relations is an area the States." been regarded as a virtually exclusive province of Windsor, supra, of 133 S. Ct. the at 2691. "Consistent Government, with phis our





with respect to history, has deferred to state-law policy decisions domestic relations." Id. at 2691. Precisely because "there is no

when deciding "who is a federal law of domestic relations," courts, nt and child," must widow or widower," "husband and wife," "pare which created those legal make "reference to the law of the State relationships." Ibid. y's Here, it is indisputable that New Jerse

that, wherever "reference is Civil Union Act recognizes and intends made to `marriage,' `husband,' `wife,' `spouse,' `family,'

of kin,' `widow,' `widower,' `immediate :Family,' `dependent,' `next specific context denotes a `widowed,' or another word which in a sha11 include a civil marital, or spousal relationship, the same union." N.J.S.A. 37:1.-33. argument that The premises underlying Windsor defeat any al benefits that are civil union partners are not entitled to feder e. restricted by word choice to "married" peopl The Windsor Court

York adopted a l.aw" that struck down DOMA because "(w]hile New "frustrates that objective." "sought to eliminate inequality," DOMA Td. at 2694. ss and "By doing so," DOMA "violates basic due proce 10

rnment." equal protection principles applicable to the Federal Gove Id. a~ 2693. ~~The Federal Government" may not "impose restrictions

to protect." and disabilities" on persons whom the "State seeks Td. at 2692. The federal government may not "influence or

area of domestic interfere with state sovereign choices" in the e laws that protect relations or "discourage enactment" of stat same -sex couples. Id_ at 2693. For these very same reasons, any Windsor that

federal policy or directive

or interpretation of

violates the due process denies benefits to c~.vil union partners United States Constitution and equal protection provisions o~ the ts. as well as New Jersey's sove.reign~y righ concl.usa.ons: 1) Windsor requires two

t unequally the federal government may not trea

has declared must be treated same -sex partners whom New Jersey nt may not constitutionally equally, and 2) the federal governme whom New Jersey has extended deny benefits to same -sex couples to and responsibilities under "all of the same benefits, protections law" as are granted married couples. N.J.S.A. 37:1-31(a).

Court address the Second, neither Respondents nor the of Windsor that restricted State's point that any interpretation -sex married couples runs eligibility for federal benefits to same insisted that courts look afoul of long-standing precedent that has to essence, Burlington not label. & See, e.g., Co., United U.S. States v. 410 413 Chica o, (1.915)



n lies in the essential ("controlling test" of "statute's operatio 11

ied to those nature of the work done rather than the names appl engaged in it"); Jordan v. Roche, 228 U.S. 436, 443 (1913)

rning distilled spirits (applicability of federal tax statute gove of beverage, "not by its "is established by the essential nature" name"). d it: "`A rose As a panel of this Court colorfully expresse

ling a dog's tail a leg by any other name is sti11 a rose' and `Cal wi11 not give the dog five legs."' Suer. 223, 227 (App. Div. 1969) something object." wi11 Ibid. not per se change Terenzio v. Nelson, 107 N.J. "A name or label attached to tYie essential nature of the

to be the Here, New Jersey deems civil unions

equivalency, not the label, equivalent of marriage, and it is that that is diapositive in entitling civil union partners to all

marriage benefits. that has addressed Third, the only federal court to date civil union state has noted that the applicability of Windsor in a gnizes a party as a surviving "[p]ost-Windsor, where a state reco do the same." spouse, the federal government must Cozen O'Connor,

105507, *20 (E.D. Pa. July P.C. v. Tabits, 2013 U.S. Dist. LEXIS 29, 2013). Da1ll. The caur~. below erred in attempting to See

s of the word spouse. distinguish Cozen O'Connor on the basi slip op. at 47 n.10. Da47. the Civil Union Act,

of It is incorrect that "Cb]y the terms partners are not each other's

same -sex Da25.


Id. at 25.

The Civil Union Act expressly


de a provides that. "spouse" and "spousal relationship" "shall inclu civil union." See N.J.S.A. 37:1-33.

t Fourth, the last sentence of the Windsor opinion canno mean what the court below concludes. Tf the Windsor Court really

of its did mean to exclude civil union partners from the scope decried when holding, then i~he Court itself would be doing what it discussing Congress' enactment of DOMA. extensive discourse on deferring to The Court, despite its policy in domestic


with State sovereign relations matters, would be "interfer[in.g] of marriage. choices" about who is entitled to the benefits See

cript of Oral Argument Windsor, supra, 133 S. Ct. at 2693; cf. Trans at 54, Hollingsworth v. Perry, U.S. 133 S. Ct. 2652 (2013)

n that all civil unions (No. 12-144) (J. Soi,omayor challenging notio ages, because "there is an must be converted .into same -sex marri do more have less rights" irony in that, which is the States ghat of same-sex couples in than States that refuse to recognize rights any way). Da118. Similarly, if_ the Windsor Court meant to

its sweeping language disenfranchise civil union partners, despite the Court would also be abolz~ the rights of same -sex couples, then promote their rights. "discourag[ing] enactment" of state laws that Cf_ Transcript of Oral See Windsor, supra, 133 S. Ct. a.t 2693; , (J. Breyer arguing Argument at 61, Hollingsworth v._ Perry, sum ur~.ion statute] has to that if "State that has a pact Ci .e., civil dering pacts will [) say say `ma.rriage"' then "States that are consi 13

couple"}, `we won't do it"' and that result is "harmful to the gay Da120. best Chief Justice Roberts, in his dissent, provides the g its holding to insight as to what the majority meant by confinin "lawful marriages." Rather than intending to drive an implicit

the majority wedge between same -sex marriages and civil unions, with its reasoning meant merely to indicate that is was, consistent prerogative o~ those throughout, noY. interfering with the sovereign marriage. states that chose not to recognize same-sex See Windsor,

dissenting) (noting supra, 133 S. Ct. at 2696-97 (Roberts, C.J. of having based its ghat as "logical and necessary consequence" g clear that its decision judgment on federalism, majority was makin er "utilize the traditional did not dictate that states no long definition. of marri~.ge"). The federal government must, consistent

matters concerning domestic with federalism, defer to th.e states in relations. 3. zable, and The State's action is not legally cogni itution Const State the the Court lacks power to use federal to ens to vindicate the right of State citiz benefits. If

cognizable. First, the State's action is not legally

not extend to Respondents the federal government ultimately does to which they are entitled the federal benefits and protections federal government will have after th.e Windsor decision, then the s Constitution, contrary acted in contravention of the Unified State


to principles o~ federalism, and counter to precedent.


do nod paint ~o a single case, and the court below could not find any, see slip op. at 37 (Da37), wherein the federal government's constitutional default has transformed an otherwise legitimate

can state position into impermissible sate action that a court redress. The whole purpose of a state action requirement is to

conduct of avoid imposition of responsibility on a state for the over whom it third party actors with whom it has no nexus and cannot control. extent Second, the court below misperceived the scope and court said that the of the State's jurisdictional argument when the iction to require State Contends that "this Court has no jurisd federal oft~_cials to aCt at in conformity Rather, the with core the of New the Jersey State's




power to use the jurisdictional argument is that the Court ~.acks the right of Sate State Constitution as a basis for vindicating citizens to federal benefits that federal officials, acting

refuse to provide. pursuant to their interpretation of federal law, The equa]. protection right that the Supreme Court

"remedy the equal identified in Lewis mandates that the Legislature protection disparities that currently exist in our statutory

added); see also scheme." Lewis, sera, 188 N.J, at 459 (emphasis "held that sameid. at 454-55 (noting that Vermont Supreme Court sex couples are entitled to `obtain 15 the same benefits and









couples"') (quoting Baker v. Vermont, 744 A.2d 864, 870 (Vt. 1999) (emphasis added)). This limitation of both the right and the

remedy was neither an accident of pleading nor a result of judicial inadvertence. necessity. The Framers established "two orders of government, each own set of with its own direct relationship, its own privity, its n it and are mutual rights and obligations to the people who sustai governed (1..997). by it." Printz v. United States, 521 U.S. $98, 920 Rather, the limitation was borne of constitutional

and its In the constitutional compact between a State

the obligations of citizens, the mutual rights of the latter and ion of benefits and the former extend no further than the provis privileges under State statutory law. This constraint recognizes

sovereign acts within the limits of the federal system wherein each its "proper sphere of authority." See id. at 928. "authority between federal and state protection o.f_ individuals." 144, 181 (7.992). sovereign sovereign The division of is "for the


New Yor)t v. United States, 505 U.S.

By creating distinct spheres within which each the federal system contemplates that each Printz,

operates, will "be

accountable to its own citizens."

supra, 521 U.S. at 920. as a Here, however, Respondents used the lower court a lever ~o fulcrum and the pronouncements of federal agencies as 16

overturn a State legislative enactment that, properly confined to its awn sphere, provides same-sex couples with all Stale marriage benefits. See Tr, at 11:7-9 (Respondents conceding for purpose of

summary judgment motion that under New Jersey law civil union is "equivalent" to marriage). Da127. Under Respondents' desired

upon scenario, and in contravention of the federalist principles to the which our nation was based, no one would be accountable entally a citizens of this State for the decision to alter fundam social institution of ancient origin. that was overridden, and not the Not the State Legislature, bureaucrats that, in


tion, refused to contravention of federal principles of equal protec extend federal benefits. Further, it is axiomatic that Congress may not

Sta.tes," New York, "commandeer the legislative processes of the leave state courts supra, 505 U.S_ at 161,, and federal courts must "free and unfettered" v. Nat'1 in Tea interpreting State Co., 309 U.S. in constitutions, 551, the 557 mere see


(1940). policy





es to coerce the pronouncements of a smattering of federal agenci Stake into permitting same-sex marriage. Respondents' position is

system of dual "fundamentally incompatible with our constitutional sovereignty." See Printz, s_u~ra, 521 U. S_ at 935; see also

ment may not "put Windsor, supra, 133 S. Ct. at 2693 (federal govern on as to how to a thumb on the scales and influence a state's decisi 17

shape its own marriage laws").

Unable to point to any precedent

refuge that would allow such a remarkable result, Respondents see]c in the equality-mandate of Lewis. e While principles of federalism and the Supremacy Claus aints on the of the federal Constitution provide horizontal restr section 1 of the operation of the State Constitution, Article III, State Constitution may serves as a vertical with constraint. of The power





untable for the extraprinciples, be held constitutionally acco territorial ramifications of its enactments. Notably, even though

setts had enacted same -sex the Lewis Court was aware that Massachu at 454, the Court did not marriage, see Lewis, su ra, 188 N.J. yans who were in a civil union concern itself waLh whether New ~erse and who moved to with for ox travelled to though divorce, Massachusetts child would be

disadvantaged certificates



birth etc.





tes the provision of. equal Because the State Constitution only manda the Lewis Court took no State benefits to all State citizens, ts of the two options the account of the extra-jurisdictional effec Court presented to the Legislature. basis of the For the courts to hold otherwise on the over whom the State has no vicissitudes of third-party sovereigns control policy. would be to usurp the legislative prerogative to set

ment could the Neither in their briefs nor at oral argu m

Respondents point to a single case that stood for the proposition. that a State court could, on the basis of extra -territorial

ure consequences, hold unconstitutional a State statutory struct that was otherwise constitutional. To the contrary, a judicial remedy must hew closely to and must not exceed the scope of the constitutional right. "The

of the courts are not the guardians of the rights of the people State, unless those rights are secured by same constitutional See Thomas

proviuion which comes within the judicial cognizance."

tions 168 (1868). Cooley, A_Treatise on the Constitutional Limita ized this principle, The courts of this State have repeatedly recogn principle requiring, acknowledging the Zack of any "jurisprudential erritorial effect to our ar even permitting," courts "to give extrat Constitution." Div. 1992). (App. State v. Stelzner, 257 N.J. Super. 219, 237

officials When a case involves "actions by federal

find "no basis to based on federal statutes," New Jersey Couxts federal actions invoke our Stake Constitution, even though these" Jersey citizens." "may impact" the constitutional "rights of New Div. 2001). State v. Green, 346 N.J. Super, 87, l01 (App. Tn

was faced with a Mollica, a search and seizu.r_e case, the Court under federal situation where federal action, while permissible al sensibilities law, nevertheless violated the State's constitution regarding the privacy rights of citizens. N.J. 329 (1989). Sate v. Mollica, X14

However, because State officials had not violated 19

the remedy the accused's .rights under State law, the Court withheld of suppression. 355, 371 Id. at 347-48. (rejecting See also State v. Evers, 175 N.J. criminal defendant's State


of-state official's constitutional privacy claim premised on outseizure of evidence because "[n]o purpose would be served by

s to people and places applying New Jersey's constitutional standard over whom the sovereign power of the State has no control"},

the remedy of declaring Likewise, here, the courts should withhold nstitutional on the basis of the State's statutory structure unco has no control. federal actions over which the State "Recognition

tation on the application of of this inherent jurisdictional limi t with principles of federalism." the state constitution is consonan 352. See Mollica, supra, 114 N.J. at court's blanked statement No precedent supports the lower there is state action." that "when the State is involved, at 39. Da39. Slip op.

denying benefits Here, the federal agencies that are

ts of the State and are not acting to same -six couples are not agen under color of State law. in To the contrary, they are acting

deems civil union spouses as disregard of both State law, which fits of marriage, and federal entitled to all the rights and bene principles of equal protection. edential guide," The court below, "witY~ no clear prec ultimately determined state that the civil union label is the Slip op, at 32-33.

to remedy. action that the court was permitted



The relevant action far State constitutional purposes,

same-sex however, is whether the Legislature has granted committed able to couples all of the "statutory benefits and privileges avail age laws." opposite-sex couples through New Jersey's civil marri Lewis, su ra, 188 N.J. at 427. in In other was, words, the equal

protection necessary

guarantee terms, a

identified right

Lewis in

in explicit and definition, and



aspiration to State law.

And the right remains thus.

The court

dictional limitations below was not free either to ignore the juris a constituent part of the of the State Constitution or to rewrite Lewis decision. , but rather The court below did not enforce Lewis

below did not enforce the expanded it impermissibly; the court State's equal protection guarantee, buL rather expanded it


e's action The collateral effect of the Legislatur

offer is irrelevant for on the benefits that third-party sovereigns purposes of determining the constitutionality of the State's Neither

osexual couples. retention of the name marriage for heter

to a single case that Respondents nor the court below could point and Respondents thus failed to stands for the contrary proposition, meet their burden of proof. of a State law Stated in obverse term , the validity under the State Constitution cannot hinge upon the action,

over whom the State has no inaction, or policy of tedera.l officials control. ial decisions Under the lower court's theory, Stake judic 21

would flip-flop endlessly at the whim of variable federal policies, resulting .1.n chaos and, effectively, the concession that the State Constitution has no independent application. court's premise were For example, if the

correct, then, theoretically, the State's

be reservation of the name marriage for heterosexual couples could at valid under the State Constitution prior to Windsor; invalid stration some indeterminate point post-DOHA because the Obama Admini - federal benefits interprets Windsor to preclude the provisions of later date if to civil union spouses; then valid again at some even ed to federal Congress clarifies that civil union spouses are entitl on refuses to marriage benefits or if a subsequent administrati way. interpret Windsor in such a cramped, hypertextual The "Court

flip-flop approach should not place a stamp of approval on such a to constitutional interpretation." 619, 637 (2009) 99 (Albin, N.J. of the 552, New J., 56~ See State v. Fortin, 198 N.J. cf. Greenberg developing that is v. an not

dissenting); (1985)






irrevocably bound by federal analysis, we of adjusting our construction of the

avoid the necessity state constitution to

United States accommodate every change in federal analysis of the Constitution."). D. The Equities Weigh in Favor of the State. of Several factors should inform the Court's balancing the equities. First, Respondents' harm remains speculative. 22 The

smattering of federal agencies that have weighed in to date on the issue of whether to extend benefits to civil union spouses have taken positions that are internally contradictory at best and

arbitrary at worst.

Far example, the Office o~ the Chief Counsel

of the IRS initially issued a fetter declaring that "if Illinois and treats the parties to an Illinois civil union" as "husband al taxes wife," they are "not precluded from filing" their feder "jointly." the See Letter from Internal Revenue Service, Office of

H & R Blocic Chief Counsel. to Robert Shair, Senior Tax Advisor, (Aug. 30, 2011). Da159. Subsequently, without even a sentence of

e, declaring that explanation, the IRS arbitrarily reversed cours to file jointly, individuals in a "civil union" are not entitled under state law." IRS even if their relationship is "recognized Rev. Rul. 2013-"17. Da160. Relatedly, the Department of Defense

benefits to same-sex initially pron.otanced that it would provide spouses as long as the employee presented "a valid marriage

certificate." Da175.

A month later, DoD announced that "[b]enefits See 78 Fed. Reg._

shall be extended to same-sex domestic partners." 54633, 54634 (Sept. 5, 2013). Second, while Respondents have



than that the certifications, these documents establisYi no more in a bi-national declarants work for the federal governmeni~ or are relationship. The certifications do not attest that these

d benefits on the individuals actually applied for and were denie 23









Nor have









themselves of the place of celebration rule that would allow them, if they travel to an adjacent state to get married, immediate access to the benefits that multiple federal agencies, including the IRS, the United States Customs and Immigration Service, OPM, the Department of Labor, and the Department of Defense provide. See Da"160, 177, 179, 187, 188. Third, the public interest demands that the Court give rather the democratic and judicial processes a chance to play out take drastic than insisting that, in less than two weeks, the State and, some would argue, irrevocable action. This is especially so

the Supreme because the State has fi7.ed an emergent motion with e bills are Court seeking direct cert~.fication, Da101., and multipl spouses are pending in Congress that would clarify that civil union entitled to the very federal benefits they seek. See, e.g., H.R.

Equality 2834, 113th Cong., 1st Secs. (2013} ("Federal Benefits Act of Act") (clarifying that:, "[i]n determining the meaning of any Congress, the term `marriage' includes a thereby ensuring H.R. civil 3050, union 113th partners Cong., ls~ civil union," and receipt Sess. of all. federal. ("Social


(20 3)

s are Security Equality Act of 2013) (clarifying civil union partner 1751, entitled to spousal benefits under Social Security Act); H.R. on 113th Cong., 1st Sess, (201.3) ("Family and Medical Leave Inclusi 24

spouses); Act") (explicitly providing FMLA benefits to civil union ership H.R. 3135, 113tYi Cong., 1st Sess. (2013) ("Domestic Partn fying that Benefits and Obligations Act") (bipartisan bill clari " employment Federal employees in civil union are entitled to "same benefits Cong., 113th that married Federal employees receive); S. 1529, Sess. (2013) ("Domestic Partnership Benefits and


H.R. 3135); S. 857, Obligations Act".) (bipartisan bill mirroring Medical Leave Inclusion 113th Cong., 1st Sess. (2013) ("Family Act") (bi11 mirroring harm i~ it H.R. is 37,35). to The change State the will suffer




subsequent judicial or definition o~ marriage only to find out that e unnecessary. congressional activity rendered this chang

opinion pending The Court should stay the lower court's final appellate review. Respectfully submitted, JOHN J. HOFFMAN ACTING ATTORNEY GENERAL OF NEW JERSEY


~ `.I ~,~, P

~ f

Jean P. Rei11 Deputy Attorney General I~ 2013 ~ er Octob Dated: