Attorneys For Plaintiffs: United States District Court District of Nevada

Case 2:12-cv-00578-RCJ -PAL Document 41
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JON W. DAVIDSON (pro hac vice) TARA L. BORELLI (pro hac vice) PETER C. RENN (pro hac vice) SHELBI DAY (pro hac vice) LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 3325 Wilshire Boulevard, Suite 1300 Los Angeles, California 90010 Email: jdavidson@lambdalegal.org tborelli@lambdalegal.org prenn@lambdalegal.org sday@lambdalegal.org Tel: 213.382.7600 | Fax: 213.351.6050 CARLA CHRISTOFFERSON (pro hac vice) DAWN SESTITO (pro hac vice) MELANIE CRISTOL (pro hac vice) RAHI AZIZI (pro hac vice) OMELVENY & MYERS LLP 400 South Hope Street Los Angeles, California 90071 Email: cchristofferson@omm.com dsestito@omm.com mcristol@omm.com razizi@omm.com Tel: 213.430.6000 | Fax: 213.430.6407 KELLY H. DOVE (Nevada Bar No. 10569) MAREK P. BUTE (Nevada Bar No. 09989) SNELL & WILMER LLP 3883 Howard Hughes Parkway, Suite 1100 Las Vegas, Nevada 89169 Email: kdove@swlaw.com mbute@swlaw.com Tel: 702.784.5200 | Fax: 702.784.5252 Attorneys for Plaintiffs UNITED STATES DISTRICT COURT DISTRICT OF NEVADA BEVERLY SEVCIK and MARY BARANOVICH; ANTIOCO CARRILLO and THEODORE SMALL; KAREN GOODY and KAREN VIBE; FLETCHER WHITWELL and GREG FLAMER; MIKYLA MILLER and KATRINA MILLER; ADELE TERRANOVA and TARA NEWBERRY; CAREN No. 2:12-CV-00578-RCJ-PAL PLAINTIFFS MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS MOTION TO DISMISS
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CAFFERATA-JENKINS and FARRELL CAFFERATA-JENKINS; and MEGAN LANZ and SARA GEIGER, Plaintiffs, v. BRIAN SANDOVAL, in his official capacity as Governor of the State of Nevada; DIANA ALBA, in her official capacity as Clerk for Clark County; AMY HARVEY, in her official capacity as Clerk for Washoe County; and ALAN GLOVER, in his official capacity as Clerk-Recorder for Carson City, Defendants
INTRODUCTION Plaintiffs are eight loving same-sex couples who have committed their lives to each other. (Compl. at 50-73.) All of them support and care for each other through lifes joys and challenges and many are nurturing and rearing children together. Plaintiffs bring this suit because each wishes to marry his or her cherished life partner or to have his or her valid marriage from another jurisdiction recognized as a marriage in Nevada. (Compl. at 24, 29-32.) Plaintiffs Beverly Sevcik and Mary Baranovich, for example, are both in their seventies and yet they remain unable to celebrate a single wedding anniversary, despite over four decades of love and commitment. Civil marriage plays a singular role in society as the universally recognized and celebrated hallmark of a couples commitment to build family life together. Though Plaintiffs have formed enduring family bonds equally worthy of the respect afforded to different-sex couples through marriage, the state has foreclosed from them from the honored designation of marriage and relegated them instead to the inferior and novel status of registered domestic partnership. Even while consigning same-sex couples to a second-class status, however, the State has acknowledged that no governmental interest exists in treating same-sex couples differently with respect to the rights and responsibilities of spouses, given that it affords the same rights and responsibilities to -2-
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registered domestic partners. Nev. Rev. Stat. 122A.200. Ruling in a similar contextand relying significantly on Californias provision of the same rights and responsibilities to registered same-sex domestic partners while excluding them from marriagethe Ninth Circuit recently overturned Californias state constitutional amendment (commonly referred to as Proposition 8) prohibiting marriage for same-sex couples. Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012). Just as in Perry, Nevadas exclusion of same-sex couples from marriage serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in [Nevada], and to officially reclassify their relationships and families as inferior to those of different-sex couples. Id. at 1063. SUMMARY OF ARGUMENT Plaintiffs allege that Defendants discriminate on the basis of sexual orientation and sex in violation of federal guarantees of equal protection by denying same-sex couples the right to marry and relegating them instead to the inferior and novel status of registered domestic partnership, enacted in Nevada in 2009. Defendants Brian Sandoval and Alan Glover (collectively, Defendants) move to dismiss for lack of subject matter jurisdiction, relying entirely on Baker v. Nelson, 409 U.S. 810 (1972) (mem.), a nearly 40-year-old summary dismissal of claims by a same-sex couple seeking to marry in early 1970s Minnesota.1 In short, Defendants contend that Plaintiffs are not even entitled to judicial reviewin this or in any other courtof the federal constitutional questions they have presented because those questions have, supposedly, already been answered. Defendants neglect to acknowledge the limited reach of a summary dismissalwhich binds lower courts only on the precise questions presented in the statement of jurisdictionand the fact that this case presents entirely different questions from those considered in Baker. While Baker arose from a suit filed in Minnesota state court by a same-sex couple seeking the freedom to marry under the federal constitution. 191 N.W.2d 185, 186 (Minn. 1971). After the Minnesota Supreme Court rejected their claims, the couple appealed to the U.S. Supreme Court pursuant to former 28 U.S.C. 1257(2). Until 1988, this statute afforded the Supreme Court mandatory appellate jurisdiction for review of state supreme court decisions adjudicating the constitutionality of a state law; the statute was subsequently replaced with review by writ of certiorari. The Supreme Court summarily dismissed the Minnesota couples appeal, which was based solely on a claim of sex discrimination, for want of substantial federal question. 409 U.S. at 810. -31
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the couple in Baker sought to marry in a state that afforded no relationship recognition to samesex couples, the Ninth Circuit recognized in Perry that a very distinct question is raised where a state has disclaimed all conceivable rationales for treating same-sex couples differently by providing them the same rights and responsibilities as spouses through a legal status like Nevadas registered domestic partnership. 671 F.3d at 1086 (holding that purported child-related governmental rationales are not served by state constitutional amendment excluding same-sex couples from marriage because state law already affords such couples identical rights with regard to forming families and raising children). Baker thus has no application here. Moreover, Baker did not even address a claim for violation of equal protection on the basis of sexual orientation, a central contention in the complaint in this case. (Compl. at 86-103.) Finally, even assuming arguendo that Baker presented the same precise challenges asserted in this case, which it did not, subsequent doctrinal developments have extinguished any precedential force Baker may once have had. The complaint clearly presents a substantial federal question which should be resolved on the merits. ARGUMENT Defendants cannot overcome the high hurdle necessary to warrant dismissal of Plaintiffs federal equal protection claim for lack of a substantial federal question. Dismissal on this basis is reserved to claims so attenuated and unsubstantial as to be absolutely devoid of merit, wholly insubstantial, obviously frivolous, plainly unsubstantial, or no longer open to discussion. Hagans v. Lavine, 415 U.S. 528, 536-37 (1974) (internal quotations and citations omitted). A claim is deemed insubstantial based on prior Supreme Court precedent only if its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject and leave no room for the inference that the question sought to be raised can be the subject of controversy. Id. at 538 (internal quotations and citations omitted). Bakers 40-year-old summary dismissal did not address specific claims in this case and has, in any event, been overtaken by dramatic advances in constitutional doctrine; it therefore cannot foreclose the substantial claims at issue here or their resolution by this Court.2
2
Dismissal pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction, in contrast to dismissal pursuant Rule 12(b)(6) for failure to state a claim, precludes a -4-
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I.
BAKER V. NELSON DID NOT EXAMINE THE QUESTIONS POSED HERE, AND ANY LIMITED PRECEDENTIAL VALUE IT STILL MAY HAVE DOES NOT APPLY. A. Summary Dismissals Reach No Further Than The Specific Issues In The Statement Of Jurisdiction Reviewed By The Supreme Court.
Defendants fail to acknowledge the narrow precedential value of summary dismissals under the Supreme Courts previously mandatory appellate jurisdiction. As a limited vehicle for resolving a case, a summary dismissal binds lower courts only on the precise issues presented in the statement of jurisdiction and in no way validates the reasoning of the underlying decision. Mandel v. Bradley, 432 U.S. 173, 176 (1977) (per curiam). A summary dismissal for want of a substantial federal question issued without an opinion, such as in Baker, thus is an affirmance of the judgment only, and the rationale of the affirmance may not be gleaned solely from the opinion below. Id. (holding that the lower court erred in assuming that a summary dismissal adopted the reasoning as well as the judgment of an underlying opinion). See also Fusari v. Steinberg, 419 U.S. 379, 391 (1975) (Burger, C.J., concurring) (When we summarily affirm, without opinion we affirm the judgment but not necessarily the reasoning by which it was reached.); Washington v. Confederated Bands & Tribes, 439 U.S. 463, 478 n.20 (1979) (noting that a summary dismissal does not, as we have continued to stress necessarily reflect our agreement with the opinion of the court whose judgment is appealed). In fact, upon fuller consideration of an issue under plenary review, the Court has not hesitated to discard a rule which a line of summary affirmances may appear to have established. See Fusari, 419 U.S. at 392 (Burger, C.J., concurring) (collecting authorities). Emphasizing the limited nature of this rule, Mandel clarified that a summary dismissal should not be understood as breaking new ground, but instead as a decision specific to the particular facts involved. Id. at 176. A summary dismissal accordingly does not have the same decision on the merits. See Franklin v. Oregon, State Welfare Div., 662 F.2d 1337, 1343 (9th Cir. 1981) (holding that an important difference between dismissal for lack of jurisdiction versus failure to state a claim is that the former forecloses a judgment on the merits); see also Cook v. Peter Kiewit Sons Co., 775 F.2d 1030, 1035 (9th Cir. 1985) (holding that District Court judges dismissal for lack of subject matter jurisdiction was not a judgment on the merits, and he retained no power to make judgments relating to the merits of the case).
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precedential value as does an opinion of this Court after briefing and oral argument on the merits. Washington, 439 U.S. at 478 n.20, citing Edelman v. Jordan, 415 U.S. 651, 671 (1974) (summary affirmances are not of the same precedential value as would be an opinion of this Court treating the question on the merits), overruled on other grounds by Will v. Mich. Dept of State Police, 491 U.S. 58 (1989). See also Richardson v. Ramirez, 418 U.S. 24, 83 n.27 (1974) (summary affirmances are obviously not of the same precedential value as would be an opinion of this Court treating the question on the merits). For these reasons, a summary dismissal for want of a substantial federal question binds lower courts based only on the specific challenges presented in the statement of jurisdiction, and extends only to prevent lower courts from coming to opposite conclusions on the precise issues presented and necessarily decided by those actions. Mandel, 432 U.S. at 176 (emphasis added). The facts of Mandel are instructive on this point. Mandel involved a challenge to a Maryland election law requiring the early submission of voter signatures by independent political candidates to qualify for the ballot. Id. at 174. A lower court found the Maryland law unconstitutional, believing itself to be bound by the Supreme Courts summary affirmance in Tucker v. Salera, 424 U.S. 959 (1976), aff'g 399 F. Supp. 1258 (E.D. Pa. 1975). Mandel, 432 U.S. at 175. The underlying case affirmed in Tucker had considered a similar Pennsylvania law requiring early submission of signaturesbut coupled with a 21-day limitation on the ability to gather such signatures. Emphasizing the limited application of the Courts summary decisions, Mandel found this mere factual difference between the two lawswhere one imposed a 21-day limit for gathering signatures and one did notsufficient to distinguish Tucker and render it nonbinding on the questions in Mandel. Id. at 176. This was so even though the underlying opinion in Tucker had not relied on the 21-day limitation to reach its decision, and found the law unconstitutional solely by virtue of its requirement for early submission of signatures. Id. at 175 (stating that a summary affirmance does not adopt the reasoning of the underlying opinion). Just as the summary affirmance in Tucker did not bind the subsequent court in Mandel, the summary affirmance in Baker has no application here. As described further below, the question in this case could not even have -6-
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lurk[ed] in the record in Baker, and lower courts can read no more into a summary dismissal than was essential to sustain th[e] judgment. Perry, 671 F.3d at 1082 n.14 (internal quotation marks omitted). Perry confirms that a context-specific equal protection question, such as the one Perry considered in California, is a wholly different question than was presented in Baker. Id. As explained below, this case too presents a question narrowly defined by Nevadas particular legal landscape. Baker could not even have envisioned this question, given its summary dismissal 37 years before Nevada enacted the domestic partnership law central to this equal protection challenge.3 B. This Case Raises Questions That Baker Could Not Have Conceived, And Certainly Did Not Decide.
Baker was decided on the basis of a dramatically different legal landscape, and as the Ninth Circuit explained in Perry, this context is indispensable for defining the issue before the Court. 671 F.3d at 1063-64. When Baker was decided, neither Minnesota nor any other state in the nation provided any formal statewide relationship recognition to same-sex couples. Today, Nevada affords same-sex registered domestic partners virtually every state law right and responsibility provided to spousesjust like Californias domestic partnership law that shaped the Ninth Circuits review in Perry. Nev. Rev. Stat. 122A.200, et seq. The Ninth Circuitdeciding only the specific question before itadapted its ruling to the context of Proposition 8 in California as well as the particular equal protection problem created when a state eliminates same-sex couples access to the honored designation of marriage, while leaving in place all of its incidents for those who register as domestic partners. Perry, 671 F.3d at 1063. The question decided by Perry therefore did not overlap with the question decided in Baker. The issues before this Court are similarly shaped by the specific context of Nevadas domestic partnership law, which, as a matter of state policy, disavows any governmental interest in treating same-sex couples differently with respect to the rights and responsibilities of spouses. While Plaintiffs do not suggest that any other states exclusion of same-sex couples from marriage would survive constitutional review, this case calls into question only Nevadas distinctive laws regarding same-sex relationships. -73
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Plaintiffs accordingly raise only a narrow, tailored question: whether a law violates equal protection where it works a singular and limited change to a state constitution by removing from same-sex couples only the right to have their committed relationships recognized with the designation of marriage, even while the state affords them rights and responsibilities that are identical to those of married spouses and form an integral part of the marriage relationship. Perry, 671 F.3d 1076. Baker could not even have imagined, let alone decided, this question. Moreover, Nevadas context affects not only the narrow parameters of Plaintiffs claims, but also the Courts analysis of any purported governmental interests. Based on the unique legal landscapes in California and Nevada, Perry forecloses certain governmental rationales here that were accepted by the Minnesota Supreme Court in Baker. For example, where a states restriction on marriage for same-sex couples has no effect on the rights of same-sex couples to raise children or on the procreative practices of other couples, Perry establishes as a matter of law that the restriction cannot be supported by governmental interests in childrearing or responsible procreation. 671 F.3d at 1063. Nevadas constitutional amendment similarly has no effect on the states policy decision to afford same-sex registered domestic partners the same rights and obligations with respect to their children. See Nev. Rev. Stat. 122A.200(d). Baker, in stark contrast, was decided at a time when Minnesota afforded no recognition to same-sex parents or their relationships and thus confronted very different questions about governmental interests. Compare Baker, 191 N.W.2d at 186 (discussing the institution of marriage as uniquely involving the procreation and rearing of children within a family) with Perry, 671 F.3d at 1086-89 (holding that Proposition 8 did not advance the asserted interests of procreation and childrearing). While the underlying reasoning would not control this Court regardless (Mandel, 432 U.S. at 176 (a summary dismissal affirm[s] the judgment but not necessarily the reasoning below)), it is clear that Baker was decided in the context of arguments about parenting that the Ninth Circuit forecloses here as a matter of law. Perry, 671 F.3d at 1063; see also id. at 1082 n.14 (ruling that the specific context and history in California rendered Baker inapplicable to the narrower questions before that Court). Baker also did not present the sexual orientation discrimination question squarely posed in -8-
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Plaintiffs equal protection claim here. (Compl. at 86-103.) Bakers jurisdictional statement specified that [t]he discrimination in this case is one of gender, focusing expressly on sex discrimination as the basis of the equal protection violation. See Jurisdictional Statement for Appellants at 16, Baker v. Nelson, No. 71-1027 (1972), attached as Exhibit A. While that issue is posed in this case as well (after intervening landmark doctrinal developments discussed below), Plaintiffs substantial federal claims of sexual orientation discrimination were not specifically presented in Baker and could not be foreclosed by the summary dismissal. See Mandel, 432 U.S. at 176. C. State Marriage Laws Are Not Exempt From Federal Equal Protection Requirements.
Additionally, Baker and other authorities do not, as Defendants seem to suggest, exempt state marriage eligibility rules from federal guarantees of equal protection. (Mot. at 3-4.) Even if 12 the underlying reasoning of the Minnesota Supreme Courts decision in Baker had any relevance 13 here, the Court in no way suggested that state statutes are immune from federal constitutional 14 review, nor could they be, in light of the Supremacy Clause. 191 N.W.2d 185; U.S. Const., art. 15 VI, cl. 2. While determinations of marital eligibility have traditionally been the province of the 16 states and not the federal Congress, such state law rules are not immune from federal 17 constitutional review. To the contrary, federal guarantees of equal protection set a floor below 18 which no states family law may fall. See, e.g., Loving v. Virginia, 388 U.S. 1, 7 (1967) 19 (declaring unconstitutional Virginias statutes criminalizing interracial marriage, overruling Pace 20 v. Alabama, 106 U.S. 583 (1883) and noting that regardless of the states police power over 21 marriage, the state could not contend that its powers to regulate marriage are unlimited 22 notwithstanding the commands of the Fourteenth Amendment in light of Meyer v. Nebraska, 23 24 25 26 27 28 262 U.S. 390 (1923), and Skinner v. Oklahoma, 316 U.S. 535 (1942).).4
4
Contrary to Defendants claims (Mot. at 6), this case is manifestly different from Hernstadt v. Hernstadt, 373 F.2d 316 (2d Cir. 1967). Plaintiffs do not ask this Court to intervene in an individual couples custody dispute, id. at 317, but rather whether the Fourteenth Amendment permits a state to exclude an entire group of people from civil marriage along invidious lines of sexual orientation and sex discrimination. Cf. Loving, 388 U.S. at 2 (This case presents a constitutional question never addressed by this Court: whether a statutory scheme adopted by the State of Virginia to prevent marriages between persons solely on the basis of racial classifications violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment.). -9-
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II.
EVEN IF BAKER WERE RELEVANT, SUBSEQUENT DEVELOPMENTS HAVE RENDERED IT NUGATORY. Even if Baker were relevant to the question before this Court, subsequent developments in
the law have vitiated the decisions limited precedential force. When doctrinal developments have occurred, a summary dismissal even on the same precise question carries diminished precedential value. Hicks v. Miranda, 422 U.S. 332, 344 (1975); Perry, 671 F.3d at 1082 n.14 (summary dismissals prevent lower courts from reaching different determinations on the precise issues presented and necessarily decided except when doctrinal developments indicate otherwise) (internal quotation marks omitted). In the nearly 40 years since the Supreme Court summarily dismissed the Baker appeal, landmark developments have vastly changed the constitutional landscape. Baker rejected the appellants sex discrimination claims before the Supreme Court recognized that sex-based classifications require heightened scrutiny, Frontiero v. Richardson, 411 U.S. 677, 688 (1973) (plurality opinion); before Romer v. Evans held that a bare desire to harm gay people cannot constitute a legitimate government interest, 517 U.S. 620, 63435 (1996); and before Lawrence v. Texas established that lesbian and gay individuals have the same liberty interest in private family relationships as heterosexuals, 539 U.S. 558, 578 (2003).5 Cf. Smelt v. County of Orange, 374 F. Supp. 2d 861, 873 (C.D. Cal. 2005), affd in part and vacated in part on other grounds by 447 F.3d 673 (9th Cir. 2006) (Doctrinal developments show it is not reasonable to conclude the questions presented in the Baker jurisdictional statement would still be viewed by the Supreme Court as unsubstantial.); Garden State Equality v. Dow, 2012 N.J. Super. Unpub. LEXIS 360, at *10-20 (Feb. 21, 2012 opinion on motion to reconsider), attached as Exhibit B. Additionally, a number of courts now have found that governmental classifications based on sexual orientation warrant heightened judicial review under equal protection analysis. See, e.g., Golinski v. United States Office of Pers. Mgmt., 824 F. Supp. 2d 968, 989-90 (N.D. Cal. 2012), appeal docketed, Nos. 12-15388, 12-15409 (9th Cir. Feb. 24, 2012); Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 997 (N.D. Cal. 2011), affd on other
5
Lawrences statement that it did not involve whether the government must give formal recognition to any relationship of same-sex couples if anything signals that the ultimate question remains open and undecided; this statement would have been entirely unnecessary if the question already had been foreclosed by Baker. 539 U.S. at 578. - 10 -
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grounds, 671 F.3d 1052; In re Balas, 449 B.R. 567, 576-77 (C.D. Cal. Bankr. 2011). Defendants make the surprising assertion that since Baker there has been no substantial federal question about whether federal equal protection guarantees require any particular state to allow same-sex couples to marry, and that [n]othing in the law has altered this. (Mot. at 6). The Ninth Circuit in fact has issued binding authority finding the opposite: under at least some circumstances, excluding same-sex couples from marriage does indeed violate federal equal protection guarantees. Perry, 671 F.3d at 1095. Given the tectonic shifts in constitutional jurisprudence regarding lesbians and gay men since Baker, and Perrys confirmation that Baker does not foreclose all equal protection claims by same-sex couples seeking civil marriage particularly narrow, factually-limited claims such as those herePlaintiffs should be permitted to have their day in court. CONCLUSION For the forgoing reasons, Defendants motion to dismiss should be denied. DATED: June 4, 2012. LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. /s/ Tara L. Borelli JON W. DAVIDSON (pro hac vice) TARA L. BORELLI (pro hac vice) PETER C. RENN (pro hac vice) SHELBI DAY (pro hac vice) 3325 Wilshire Boulevard, Suite 1300 Los Angeles, California 90010 KELLY H. DOVE (Nevada Bar No. 10569) MAREK P. BUTE (Nevada Bar No. 09989) SNELL & WILMER LLP 3883 Howard Hughes Parkway, Suite 1100 Las Vegas, Nevada 89169 Attorneys for Plaintiffs CARLA CHRISTOFFERSON (pro hac vice) DAWN SESTITO (pro hac vice) MELANIE CRISTOL (pro hac vice) RAHI AZIZI (pro hac vice) OMELVENY & MYERS LLP 400 South Hope Street Los Angeles, California 90071
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CERTIFICATE OF SERVICE I hereby certify that I will electronically file the foregoing with the Clerk of the Court for the United States District Court, District of Nevada by using the CM/ECF system on June 4, 2012. All participants in the case are registered CM/ECF users, and will be served by the CM/ECF system.
By: /s/ Jamie Farnsworth Jamie Farnsworth 3325 Wilshire Boulevard, Suite 1300 Los Angeles, CA 90010
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Case 2:12-cv-00578-RCJ -PAL Document 41-1
Exhibit A
Case 2:12-cv-00578-RCJ
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Exhibit B
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE COMMITTEE ON OPINIONS
GARDEN STATE EQUALITY; DANIEL WEISS and JOHN GRANT; MARSHA SHAPIRO and LOUISE WALPIN; MAUREEN KILIAN and CINDY MENEGHIN;SARAH KILIAN-MENEGHIN, a minor, by and through her guardians; ERICA and TEVONDA BRADSHAW; TEVERICO BARACK HAYES BRADSHAW, a minor, by and through his guardians; MARCYE and KAREN NICHOLSON-McFADDEN; KASEY NICHOLSON-McFADDEN, a minor, by and through his guardians; MAYA NICHOLSONMcFADDEN, a minor,by and through her guardians; THOMAS DAVIDSON and KEITH HEIMANN;MARIE HEIMANN DAVIDSON, a minor, by and through her guardians; GRACE HEIMANN DAVIDSON, a minor, by and through her guardians; ELENA and ELIZABETH QUINONES; DESIREE NICOLE RIVERA, a minor, by and through her guardian; JUSTINE PAIGE LISA, a minor, by and through her guardian; PATRICK JAMES ROYLANCE,a minor, by and through his guardian; and ELI QUINONES, a minor, by and through his guardians, Plaintiffs, v. PAULA DOW, in her official capacity as Attorney General of New jersey; JENNIFER VELEZ, in her official capacity as Commissioner of the New Jersey Department of Human Services,
SUPERIOR COURT OF NEW JERSEY LAW DIVISION-MERCER COUNTY
DOCKET No.:MER-L-1729-11
CIVIL ACTION OPINION
and MARY E. ODOWD, in her official capacity as Commissioner of the New Jersey Department of Health and Senior Services, Defendants. Decided: February 21, 2012 Lawrence S. Lustberg and Jonathan Manes, for the plaintiffs (Gibbons,P.C., attorneys; Mr. Lustberg and Mr. Manes, on the joint brief) Hayley J. Gorenberg, for the plaintiffs, admitted pro hac vice (Lambda Legal, attorneys; Ms. Gorenberg, on the joint brief). Jeffrey S. Chiesa, Attorney General of New Jersey, for the defendants (complaint named former Attorney General Paula Dow as defendant) Kevin R. Jespersen, Assistant Attorney General, of counsel and on the brief and Jean P. Reilly, Deputy Attorney General, on the brief).
FEINBERG, A.J.S.C.
I. BACKGROUND
On June 26, 2002, after being denied marriage licenses in their respective jurisdictions, seven same-sex couples (Lewis plaintiffs), in permanent committed relationships for more than ten years, filed Hudson a complaint in the Superior sought Court, Law
Division,
County.
Plaintiffs
also
injunctive
relief compelling State officials (defendants or State), to
grant them marriage licenses.1 An amended complaint was filed on October 9, 2002 and by consent, on November 22, 2002, venue was transferred to Mercer County. In challenging the States denial of marriage licenses,
plaintiffs argued they were deprived of statutory protections, benefits, and mutual responsibilities accorded to heterosexual couples in violation of Article of I, the liberty 1 and of equal the protection New Jersey
guarantees
Paragraph
Constitution. Furthermore, plaintiffs asserted that third-party entities, including insurance companies and private employers, failed to accord benefits to same-sex couples. Both parties moved for summary judgment. On November 5, 2003, this court granted summary judgment in the States favor and dismissed the complaint. On the record, however, the court referred to pending legislation intended to extend healthcare, insurance coverage, and other benefits to same-sex couples: (1) the Family Equality Act that established domestic
partnerships which was introduced on June 9, 2003; and (2) an act to establish Civil Unions was introduced in 2003 as well. See B. 3743, 210th Leg. (N.J. 2003); see also B. 3762, 210th Leg. (N.J. 2003).
1
The named defendants were Gwendolyn L. Harris, former Commissioner of the Department of Human Services, Clifton R. Lacy, former Commissioner of the Department of Health and Senior Services, and Joseph Komosinski, former Acting State Registrar of Vital Statistics.
As
anticipated,
the
Legislature
adopted
the
Domestic
Partnership Act (the DPA), N.J.S.A. 26:8A-1 et seq., effective July 10, 2004. The DPA provided that all persons in domestic partnerships should be entitled to certain rights and benefits that are accorded to married couples. . .. N.J.S.A. 26:8A-2.
In 2005, a divided panel of the Appellate Division in Lewis v. Harris, 378 N.J. Super. 168 (App. Div. 2005), held the
States marriage statutes did not contravene the substantive due process and equal protection guarantees of the State
Constitution. N.J. Const. art. I, 1. Judge Skillman, writing for the majority, noted that only the Legislature could
authorize same-sex marriage. Lewis, supra, 378 N.J. Super. at 194. Judge due Collester, process Jr., dissenting, guarantees concluded of that I,
substantive
and
equal
Article
Paragraph 1 obligated the State to afford same-sex couples the right to marry on terms equal to those afforded to opposite-sex couples. Id. at 201. On October 25, 2006, the Supreme Court of New Jersey, in Lewis v. Harris, 188 N.J. 415 (2006), affirmed in part and In
modified in part the judgment of the Appellate Division. Lewis, the Court held: To comply with the equal protection guarantee of Article I, Paragraph 1 of the New Jersey Constitution, the State must provide to same-sex couples, on equal terms, the full rights and benefits enjoyed by
heterosexual couples. The State can fulfill that constitutional requirement in one of two ways. It can either amended the marriage statutes to include same-sex couples or enact a parallel statutory structure by another name, in which same-sex couples would not only enjoy the rights and benefits, but also bear the burdens and obligations of civil marriage. If the State proceeds with a parallel scheme, it cannot make entry into same-sex civil union any more difficult than it is for heterosexual couples to enter the state of marriage. It may, however, regulate that scheme similarly to marriage and, for instance, restrict civil unions based on age and consanguinity and prohibit polygamous relationships. [Id. at 463.] The Courts ruling firmly established that same-sex couples must be afforded the same rights and benefits enjoyed by
opposite-sex couples in civil marriage. The Court determined, however, in the first instance, that it was the Legislatures prerogative to decide whether to open the institution of civil marriage to same-sex couples or to devise a parallel statutory scheme. required couples A parallel to as provide those statutory equal scheme, and if selected, to would be
rights by
benefits
same-sex in civil
enjoyed
heterosexual
couples
marriage. Id. at 222-23. In response to the Lewis opinion, the New Jersey
Legislature enacted the Civil Union Act. N.J.S.A. 37:1-28 et seq.
On March 18, 2010, the Lewis plaintiffs filed a motion in aid of litigants rights challenging the failure of the Civil Union Act to fulfill the Lewis Courts mandate. The complaint sought an order from the Court to compel the Legislature to open the institution of civil marriage to same-sex couples. 26, 2010, finding that the action should be heard On July in the
Superior Court, the Court denied plaintiffs motion to enforce litigants rights, without prejudice. On June 29, 2011, plaintiffs filed a four-count complaint in the Superior Court, Law Division, Mercer County. Plaintiffs are Garden State Equality, an organization with more than 82,000 members, which advocates for lesbian, gay, bi-sexual, and
transgender (LGBT) civil rights, seven same-sex couples who reside in New Jersey and ten of their children. Defendants are named in their official capacities based on their respective roles in implementing and enforcing New
Jerseys laws: Paula Dow, the Attorney General of the State of New Jersey, Jennifer Velez, the Commissioner of the New Jersey Department of Human Services, and Mary E. ODowd, the
Commissioner of the New Jersey Department of Health and Senior Services. Counts one through four, respectively, assert a denial of equal protection under Article I, Paragraph 1 of the New Jersey Constitution; a denial of the fundamental right to marry under
Article I, Paragraph 1 of the New Jersey Constitution; a denial of equal protection under the Fourteenth Amendment to the United States Constitution, in violation of 42 U.S.C. 1983; and a denial of substantive due process under the Fourteenth Amendment of the United States Constitution in violation of 42 U.S.C. 1983. On August 10, 2011, defendants filed a motion to dismiss the complaint. On November 29, 2011, the court denied the motion to dismiss count one and granted the motion to dismiss counts two, three and four.2 On December 19, 2011, plaintiffs filed a motion for
reconsideration to reinstate count three of the complaint. The State filed opposition and plaintiffs filed a reply. Plaintiffs necessary to assert: (1) that under the Section right at 1983 issue it is is not
demonstrate
well-
established or the existence of a fundamental right to same-sex marriage; (2) the court overlooked its role in enforcing Federal Constitutional Rights; (3) other courts have considered
challenges to discriminatory state marriage practices based on Federal Constitutional grounds; and (4) the interests of justice warrant permitting plaintiffs to develop a full record for
appellate review.
The court heard oral argument on November 4, 2011.
In opposition to the motion for reconsideration, the State argues: (1) the Supreme Courts dismissal of the appeal in Baker v. Nelson, 409 U.S. 810 (1972), establishes that a state statute limiting marriage to heterosexual couples does not violate the Federal Equal Protection Clause; (2) this court must apply a rational basis test in evaluating the Federal Equal Protection claim because there is no fundamental right or suspect/quasisuspect classification; (3) the limitation of the designation of marriage to heterosexual couples satisfies the rational basis test and is valid under the Federal Equal Protection Clause; and (4) the Federal Equal Protection claim fails in the absence of state action. On January 30, 2012, the plaintiffs filed a reply.
Plaintiffs argue: (1) Baker v. Nelson is not binding on their Federal Equal Protection claim; (2) heightened scrutiny applies to the Federal Equal Protection claim since sexual orientation is considered a suspect class; (3) heightened scrutiny applies to the Equal Protection claim because prohibiting same-sex
couples from marrying also constitutes discrimination based on sex; (4) even based under a rational basis test, the Civil Union Act cannot survive as a matter of federal law; and (5) the State action alleged is sufficient to maintain a cause of action. Without objection from the State, the court permitted
plaintiffs to file a supplemental letter brief, dated February
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10, 2012. The letter brief addresses the decision by the Ninth Circuit in Perry v. Brown, No. 10-16696 (9th Cir. Feb. 7. 2012). Plaintiffs assert the reasoning in Perry, despite its reference to specific circumstances present in California, supports their claim under the Federal Equal Protection clause.3 2 ANALYSIS Rule 4:49-2 provides a motion for rehearing or
reconsideration seeking to alter or amend a judgment or order shall be served not later than 20 days after service of the judgment or order upon all parties by the party obtaining it. R. 4:49-2. The motion shall state with specificity the basis on which it is made, including which a statement of the the matters court or has
controlling
decisions
counsel
believes
overlooked or as to which it has erred. Ibid. Reconsideration is a matter within the sound discretion of the court, to be exercised in the interest of justice. Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)). In order to succeed, a litigant on a motion for reconsideration is required to establish that the court expressed its decision
Consistent with this courts prior practice, the court provided counsel with a tentative decision the week before the return date. Counsel elected to waive oral argument.
Filed 06/04/12 Page 11 of 28
on
"palpably
incorrect
or
irrational competent
basis,"
or
did
not
properly
consider
"probative,
evidence."
D'Atria,
supra, 242 N.J. Super. at 401. Alternatively, additional if a to litigant the wishes to bring new which or it
information
[c]ourt's
attention
could not have provided on the first application, the [c]ourt should, in the interest of justice (and in the exercise of sound discretion), consider the evidence. Nevertheless, motion
practice must come to an end at some point, and if repetitive bites at the apple are allowed, the core will swiftly sour. Thus, the [c]ourt of the must issues be in sensitive a motion and for scrupulous in its
analysis
reconsideration.
Cummings, supra, 295 N.J. Super. at 384 (quoting D'Atria, supra, 242 N.J. Super. at 401-02). As a preliminary matter, here, the parties dispute whether Baker v. Nelson, supra, 409 U.S. at 810 is binding. For the reasons set forth herein, it is not. In Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971), two adult male residents of Hennepin County, Minnesota, sought and were denied a marriage license by the county clerk. Plaintiffs
challenged a Minnesota statute which declared a lawful marriage to be only between persons of the opposite sex under both the
Filed 06/04/12 Page 12 of 28
Equal
Protection
and
Due
Process
guarantees
of
the
Federal
Constitution.4 Ibid. The Minnesota same-sex Supreme Court did held not the States the laws Equal
prohibiting
marriage
violate
Protection Clause of the Fourteenth Amendment. Baker, supra, 191 N.W.2d at 187. Supreme Court. The decision was appealed to the United States The Supreme Court dismissed the appeal for want
of a substantial federal question. Baker v. Nelson, supra, 409 U.S. at 810.5 A dismissal for want of a substantial federal question is a decision on the merits that is binding on lower courts. Hicks v. Miranda, 422 U.S. 332, 344-45 (1975). narrow It is dispositive only of The scope of the rule is the specific challenges
presented in the statement of jurisdiction. Smelt v. County of Orange, 374 F. Supp. 2d 861, 872 (C.D. Cal. 2005) (citing Mandel v. Bradley, 432 U.S. 173, 176 (1977) (per curiam)), affd in part and vacated in part, 447 F. 3d 673 (9th Cir. Cal. 2006). It prevents lower courts from coming to opposite conclusions on the precise issues presented and necessarily decided by the
dismissal, but it does not affirm the reasoning or the opinion
While plaintiffs challenged the statute under the First and Eighth Amendments, the claims were dismissed by the trial court.
5
Until 1988, the Supreme Court had mandatory appellate jurisdiction under 28 U.S.C. 1257(2) which was repealed.
Filed 06/04/12 Page 13 of 28
of
the
lower
court
whose
judgment
is
appealed.
Id.
at
872
(internal quotations omitted). It remains a decision on the merits of the precise questions presented except when doctrinal developments indicate otherwise.'" Hicks, supra, 422 U.S. at 344 (quoting Port Auth. Bondholders Protective Comm. v. Port of N.Y. Auth., 387 F. 2d 259, 260 n.3 (2d Cir. 1967)). Baker was decided forty years ago and both doctrinal and societal developments since Baker indicate that it has sustained serious erosion. The United States Supreme Court has decided several pertinent cases both contemporaneous with Baker and more recently couples which access indicate to the that the issue of of denying would same-sex not be
institution
marriage
considered unsubstantial today. One such development was the Supreme Courts invalidation of anti-miscegenation laws in Loving v. Virginia, 388 U.S. 1 (1967). While Loving was decided a decade before Baker, Loving is significant when considered in its historical context. In Loving, the court considered whether a statutory scheme adopted by the Virginia Legislature to prevent marriages between persons solely based on racial classifications violated the Due Process and Equal Protection Clauses of the Fourteenth
Amendment.
The Court concluded that [t]here can be no doubt
that restricting the freedom to marry solely because of racial
Filed 06/04/12 Page 14 of 28
classifications
violates
the
central
meaning
of
the
Equal
Protection Clause. Loving, supra, 388 U.S. at 1823. Today, a state law limiting an individuals right to marry based on racial classifications is patently repugnant to the Federal Constitution. However, at the time Loving was decided, the United State Supreme Court had never addressed whether a statute limiting marriages solely on the basis of race would be impermissible. For decades, many people considered marriage to be appropriately between persons of the same race. While
surprising by todays standards, nonetheless, it took many years for the court to render a decision invalidating these laws based on the Federal Equal Protection Clause. We are now at a point in history where same-sex couples face similar challenges. Courts are now presented with a new type of classification, namely, sexual orientation. Clearly, the denial of the title of marriage to same-sex couples relationships has been likened by once courts and scholars to be to other forms As of one
discrimination scholar noted:
considered
appropriate.
Just as the official separation of races was a stimulant to racial prejudice and the denial of equal educational opportunities to women hinged on the message of inferiority, the official segregation of married heterosexual couples and civilly united same-sex couples smacks of discrimination founded upon traditional intolerance.
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[Matthew K. Yan, Whats In A Name? Why The New Jersey Equal Protection Guarantee Requires Full Recognition of Same-Sex Marriage, 17 B.U. Pub. Int. L.J., 179, 195 (2007) (internal quotations omitted).]
This
scholars
comment once
illustrates
yet
another
form
of
discrimination based on sex.
considered
conventional;
discrimination
Another development contemporaneous with Baker was the United States Supreme Courts inclusion of classifications based on sex with those subject to heightened judicial scrutiny. See
Frontiero v. Richardson, 411 U.S.
677 (1973).
The question
before the Court in Frontiero concerned the right of a female member of the for uniformed the services of to claim her spouse as a
dependant
purpose
receiving
certain
benefits.
While a serviceman could, at the time, claim his wife as a dependant, a servicewoman could not claim her husband as a
dependant for the same purpose. review, the Court found that
Under a heightened scrutiny this different under treatment the Due
constituted
unconstitutional
discrimination
Process Clause of the Fifth Amendment. Frontiero, supra, 411 U.S. at 678. Even though it dealt with a different classification,
Frontiero, like Loving, is relevant in its historical context. The Court noted in Frontiero that our Nation has had a long and
Filed 06/04/12 Page 16 of 28
unfortunate history of sex discrimination.... Frontiero, supra, 411 U.S. at 684. Further, [are] the Court with stated gross, that American
statute
books...
laden
stereotyped
distinctions between the sexes and, indeed, throughout much of the 19th century the position of women in our society was, in many respects, comparable to that of blacks under the pre-Civil War slave codes. Id. at 685. Even though it was once common
place, today, the idea that [m]an is, or should be, womans protector and defender is clichd. Id. at 684 (internal
quotations omitted). Quite simply, Baker has been undermined by subsequent
Supreme Court precedent, most notably the Courts decision in Romer v. Evans, 517 U.S. 620 (1996) and Lawrence v. Texas, 539 U.S. 558 (2003). In Romer the court faced a challenge to
Amendment 2 to the Constitution of the State of Colorado which prohibited all legislative, executive or judicial action at any level of state or local government designed to protect...
homosexual persons or gays and lesbians. Id. at 624. The Court found that Amendment 2 violated the Equal
Protection Clause of the Federal Constitution.
The Court stated
that it is not within our constitutional tradition to enact laws... singling out a certain class of citizens for disfavored legal status or general hardships... Id. at 634. The Supreme Court concluded that Amendment 2 classifies homosexuals not to
Filed 06/04/12 Page 17 of 28
further a proper legislative purpose but to make them unequal to everyone else. Id. at 636. Even more recently, the Court decided Lawrence, supra, 539 U.S. at 558. In Lawrence, the question before the Court was the
validity of a Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct. Id. at 562. The Court concluded that petitioners were free as
adults to engage in private conduct in the exercise of liberty under the Due Process Clause of the Fourteenth Amendment. Id. at 564. The Court placed its decision in Lawrence in context of the long history of discrimination that lesbians and gay men have endured in this country. Importantly, the Court noted that the
very concept of the homosexual as a distinct category of person did not emerge until the late 19th century. Lawrence, supra, 539 U.S. at 568. that any Perhaps that is why it was not until the 1970s singled because out same-sex relations for criminal not
State
prosecution...
same-sex
relationships
were
occurring in the public arena. See Lawrence, supra, 539 U.S. at 570. The Lawrence Court recognized that while [f]or centuries
there have been powerful voices to condemn homosexual conduct as immoral... [the Courts] obligation is to define the liberty of all, not to mandate [its] own moral code. Id. at 570.
Filed 06/04/12 Page 18 of 28
It was succinctly stated by the Supreme Court of California in In Re Marriage Cases, 183 P.3d 384 (Cal. 2008) that: [E]ven the most familiar and generally accepted of social practices and traditions often mask an unfairness and inequality that frequently is not recognized or appreciated by those not directly harmed by those practices or traditions. It is instructive to recall in this regard that the traditional, well-established legal rules and practices of our not-so-distant past (1) barred interracial marriage, (2) upheld the routine exclusion of women from many occupations and official duties, and (3) considered the relegation of racial minorities to separate and assertedly equivalent public facilities and institutions as constitutionally equal treatment. [Id. at 853-854].
The Baker case was brought at a time when the history of systemic and harsh discrimination against lesbians and gay men had barely been challenged. Bennett Klein and Daniel Redman, Commenting: From Separate to Equal: Litigating Marriage Equality in a Civil Union State, 41 Conn. L. Rev. 1381, 1385 (2009). As
late as 1971, no state even prohibited discrimination on the basis of sexual orientation in basic aspects of life such as employment and housing... and the lives of lesbians and gay men were largely invisible in the nations courts. Ibid.
Incredibly, until the 1970s, much of the mental health community still regarded lesbians and gay men as mentally ill. Klein,
Filed 06/04/12 Page 19 of 28
supra, 41 Conn. L. Rev. at 1395.
Lesbians and gay men still
face widespread discrimination and are among the most frequent victims of hate crimes. Ibid. Fortunately, the position of gays and lesbians in this
country has markedly improved in recent decades.
Importantly,
New Jerseys Legislature has often been at the forefront of combating sexual orientation discrimination and advancing
equality of treatment towards gays and lesbians. Lewis, supra, 188 N.J. at 213. As the Court noted in Lewis, discrimination
against gays and lesbians is no longer acceptable in this State, as is evidenced by the various laws and judicial decisions
prohibiting differential treatment based on sexual orientation. Id. at 438. While in Baker the Supreme Court dismissed the appeal for want of a substantial federal question, based on the evolution set forth herein, subsequent developments support the conclusion that the issues raised in Baker would no longer be considered unsubstantial.6 not controlling. Accordingly, in todays legal arena, Baker is
See also Smelt, supra, 374 F. Supp. 2d at 873 (the court found that developments since Baker indicate that the questions presented in the Baker jurisdictional statement would [not] still be viewed by the Supreme Court as unsubstantial.; see also, In re Marriage of J.B. and H.B., 326 S.W. 3d 654 (2010) (finding Baker was not dispositive in a challenge to Article I, section 32(a) of the Texas constitution and section 6.204 of the Texas Family Code under the Equal Protection Clause).
Filed 06/04/12 Page 20 of 28
Recently, the Ninth Circuit affirmed the District Courts ruling from Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 927 (N.D. Cal. 2010). in their Perry v. Brown, for supra, No. 10-16696. plaintiffs
Originally,
motion
reconsideration,
cited Perry in support of the proposition that excluding samesex couples from the institution of marriage violates the Equal Protection Clause of the Fourteenth Amendment.7 In Perry, plaintiffs challenged a voter-enacted amendment to the California state constitution, known as Proposition 8, alleging Due Process and Equal Protection violations contrary to the Fourteenth Amendment. Plaintiffs sought a finding that its enforcement by state officials violated 42 U.S.C. 1983. Perry, supra, 704 F. Supp. 2d at 927. Judge Walker, writing the opinion for the District Court noted: The trial record shows scrutiny is the appropriate review to apply to classifications based on sexual All classifications based orientation appear suspect, as
7
that strict standard of legislative orientation. on sexual the evidence
Notably, the Circuit Court in Perry v. Brown, supra, No. 1016696 gave only a cursory analysis of Baker, finding that it need not decide whether Baker was controlling or the effect of subsequent doctrinal developments because it was considering an entirely different issue, not addressed by Baker, and squarely controlled by Romer. Perry v. Brown, supra, No. 10-16696 at n. 14.
Filed 06/04/12 Page 21 of 28
shows that California would rarely, if ever, have a reason to categorize individuals based on their sexual orientation. Here, however, strict scrutiny is unnecessary. Proposition 8 fails to survive even rational basis review. Proposition 8 cannot withstand any level of scrutiny under the Equal Protection Clause, as excluding same sex couples from marriage is simply not rationally related to a legitimate state interest. [Id. at 978.] On appeal to the Ninth Circuit, Judge Stephen Reinhardt, writing for the three judge panel, upheld the District Courts ruling that Proposition 8 violated the Fourteenth Amendment to the United States Constitution. Judge Reinhardt relied heavily
on Romer in which the United States Supreme Court held Amendment 2 to the Colorado Constitution, prohibiting the enactment of any laws protective of gays and lesbians, [i]t is violated not the within Equal our
Protection
Clause
because
constitutional tradition to enact laws of this sort laws that singl[e] out a certain class of citizens for disfavored legal status, which raise the inevitable inference that the
disadvantage imposed is born of animosity toward the class of persons affected. Perry v. Brown, supra, No. 10-16696, quoting Romer, supra, 517 U.S. at 633-34. In conducting a rational basis review, after evaluating
several rationales to support Proposition 8, the Circuit Court
Filed 06/04/12 Page 22 of 28
found
Proposition out a
was
similar class
to of
Amendment citizens
2 for
because
it
singled
certain
disfavored
treatment.
Further, the Circuit Court found that Proposition 8
has no apparent purpose but to impose on gays and lesbians... disapproval of their relationships, by taking away from them the official designation of marriage with its societally recognized status. Perry v. Brown, supra, No. 10-16696 (internal quotations omitted). Proposition Further, 8, [the [a]bsent court was] any legitimate with purpose for
left
the
inevitable
inference that the disadvantage imposed is born of animosity toward, or, as is more likely with respect to Californians who voted for the Proposition, mere disapproval of, the class of persons affected. Ibid (internal quotations omitted). The Supreme Court has found that [e]nacting a rule into law based solely on the disapproval of a group... is a
classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit. Perry v. Brown, supra, No. 10-16696 (citing Romer, supra, 517 U.S. at 635).
The Perry Court noted that [j]ust as a desire to harm cannot constitute a legitimate governmental interest neither can a
more basic disapproval of a class of people. Perry v. Brown, supra, No. 10-16696 (internal quotations omitted). The Perry
Court found that Proposition 8 violated the Fourteenth Amendment because it was a classification undertaken for its own sake.
Filed 06/04/12 Page 23 of 28
Here, under the third count, plaintiffs assert the Civil Union Act violates the Equal Protection Clause of the Fourteenth Amendment by denying them access to marriage and relegating them to a separate and arguably second class status, while not
serving any legitimate state interest.
The Civil Union Act,
unlike Proposition 8, was intended to confer more benefits on same-sex couples, rather then take any away. However, the Civil
Union Act is arguably similar because it singles out a certain class of citizens, namely gays and lesbians, for allegedly
disfavored treatment. While the Civil Union Act does bestow certain benefits on same-sex couples, it also denies them the designation of
marriage for their committed relationships and it allegedly does not bestow upon plaintiffs all of the same benefits enjoyed by their heterosexual counter parts. For all the reasons set forth herein, the court grants the motion for reconsideration. Accordingly, the matter shall
proceed to trial on counts one and three. At this juncture, the court leaves open the question of what standard of proof that is applicable. is no The Court in Lewis
previously purpose for
found
there
legitimate the same
governmental benefits and
denying
same-sex
couples
responsibilities afforded to their heterosexual counter parts. Plaintiffs will have the opportunity to develop a full and
Filed 06/04/12 Page 24 of 28
complete trial record in an effort to substantiate allegations of unequal treatment under the Civil Union Act. In Lewis, the Court noted that the New Jersey Legislature made sexual orientation a protected category by enacting
legislation committed to the goal of eradicating discrimination against gays and lesbians. Lewis, supra, 188 N.J. at 452. Supreme same-sex privileges Court concluded the to in Lewis that and denying social to The
committed and
couples given
financial married
benefits
their
heterosexual
counterparts
bears no substantial relationship to a legitimate governmental purpose. Id. at 457. As noted heretofore, the Court held it was the
Legislatures prerogative to determine how to provide same-sex couples with equal benefits; whether to open the institution of marriage to same-sex couples or create a parallel statutory
structure.
Accordingly, the Civil Union Act was enacted to
bridge the inequality gap left by the Domestic Partnership Act.8 Id. at 448.
Today, many states recognize same-sex marriages as the result of legislation or judicial mandate. These include: New York, Massachusetts, Connecticut, Vermont, New Hampshire, Iowa and Washington State. In addition, while the New Jersey Legislature recently adopted legislation to legalize same-sex marriage, Governor Chris Christie vetoed the legislation and there are insufficient votes to override the veto.
Filed 06/04/12 Page 25 of 28
The Lewis Act under the
plaintiffs challenged the Domestic Partnership Equal the Protection Federal provisions of the State With
constitution,
not
Equal
Protection
Clause.
regards to sexual orientation as a classification under Federal case law, "[t]he [United States] Supreme Court has never ruled that sexual orientation is a suspect classification for equal protection purposes." Citizens for Equal Prot. v. Bruning, 455 F.3d 859, 866 (8th Cir. 2006); see also Johnson v. Johnson, 385 F.3d 503, 532 (5th Cir. 2004). As the Lewis Court noted, the New Jersey Constitution not only stands apart from other state constitutions, but also may be a source of individual liberties more expansive than those conferred by the Federal Constitution. Lewis, supra, 188 N.J. 415 at 465 (citing State v. Novembrino, 105 N.J. 95, 144-45 (1987)). For the most part, the justification offered by the State to support the distinction between heterosexual and same-sex
couples in the Civil Union Act is tradition. Since marriage has historically been defined as the union between a man and woman, the State argues this is a sufficient basis to
distinguish between heterosexual and same-sex couples. Not surprisingly, courts have held that tradition alone
never can provide sufficient cause to discriminate against a protected class, for [neither] the length of time a majority
Filed 06/04/12 Page 26 of 28
[of the populace] has held its convictions [nor] the passions with which it defends them can withdraw legislation from [the] [c]ourts scrutiny. Kerrigan v. Comm'r of Pub. Health, 957 A.2d 407, 479 (Conn. 2008)(citing Bowers v. Hardwick, 478 U.S. 186 (1986) (Blackmun, J., dissenting)). If a simple showing that discrimination is traditional satisfies equal protection, previous successful equal protection challenges of invidious
racial and gender classifications would have failed. Varnum v. Brien, 763 N.W.2d 862, 898 (Iowa 2009). Finally, to state a claim for relief in an action brought under Section 1983, respondents must establish that they were deprived of a right secured by the Constitution or laws of the United States, and that the alleged deprivation was
committed under color of state law. Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999). The ultimate issue in
determining whether a person is subject to suit under [Section] 1983 is the same question is posed in cases arising under of the
Fourteenth rights
Amendment:
the
alleged the
infringement
federal v.
fairly
attributable
to
State?
Rendell-Baker
Kohn, 457 U.S. 830, 838 (1982)(citing Lugar v. Edmondson Oil Co., 457 U.S. 922. 937 (1982)). Defendants treatment of challenge the premise under that the alleged Civil unequal Act,
same-sex
couples,
Union
constitutes state action under the Fourteenth Amendments Equal
Filed 06/04/12 Page 27 of 28
Protection Clause. 249 F. 3d 301 (4th
Defendants rely on Mentavlos v. Anderson, Cir. 2001), cert. denied, 534 U.S. 952
(2001). In Mentavlos, the Fourth Circuit considered the question of whether military two male cadets acted at under The the Citadel, color of a state-sponsored law. The
college,
state
Circuit Court found that because the cadets actions were not coerced, compelled, or encouraged by any law, regulation or custom of the State of South Carolina or The Citadel, the
cadets actions were not fairly attributable to the state and thus, not actionable under Section 1983. Id. at 323. In Mentavlos, unlike in the present matter, there was no statute or regulation being challenged. the present matter do not seek to Moreover, plaintiffs in impose liability on the
private actors discussed in the complaint.9 Plaintiffs allege the Civil Union Act and its enforcement by certain state officials, who are named defendants, violates the Equal Protection Clause of the Fourteenth Amendment. At
this juncture, the court is satisfied there is sufficient state
The United States Supreme Court has concluded that acts of private parties were fairly attributable to the state on certain occasions such as when the private party acted in concert with state actors. See Adickes v. S. H. Kress & Co., 398 U.S. 144, 155-56 (1970) (finding that a restaurant acted under color of state law because it conspired with a town sheriff, a state actor, in depriving a teacher of federal rights).
Filed 06/04/12 Page 28 of 28
action to permit the claim under the Federal Equal Protection Clause to proceed. Accordingly, plaintiffs motion for reconsideration is
GRANTED and count three is hereby reinstated.

Attorneys For Plaintiffs: United States District Court District of Nevada

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE COMMITTEE ON OPINIONS

SUPERIOR COURT OF NEW JERSEY LAW DIVISION-MERCER COUNTY

CIVIL ACTION OPINION

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relief compelling State officials (defendants or State), to

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