New Jersey!

This story has been brewing for a while. Earlier this month a lower level judge declared the New Jersey ban on same-sex marriage to be unconstitutional and set a date that marriages should begin. That date is Monday. Gov. Chris Christie appealed to the Supremes. Various towns have declared that to be ready for Monday (and comply with the 72 hour waiting period) they better start issuing marriage licenses today. Cory Booker, mayor of Newark and senator-elect, stirred the pot by offering to officiate for same-sex marriages in City Hall a minute after midnight on Monday.

The lower judge refused to issue a stay until the appeal was heard. It wasn't until today that the NJ Supremes said anything about the stay. And what they said is marriages may proceed even before they hear the case in January. That's a big clue on how they'll rule when they actually hear the case. Their analysis:

The NJ Supremes are working from their own unanimous 2006 decision that declared gay and lesbian couples must be treated the same as straight couples. At the time the legislature created civil unions which were designed to be equal (though it turns out only kinda). But with the end of Defense of Marriage Act, the feds are now treating married gay couples differently. Civil unions aren't equal.

To grant a stay the Supremes consider the "soundness of the trial court's ruling and the effect of a stay on the parties and the public." And they conclude:

The State has advanced a number of arguments, but none of them overcome this reality: same-sex couples who cannot marry are not treated equally under the law today. The harm to them is real, not abstract or speculative.

Another factor in issuing a stay is whether the party asking for it has a likelihood of winning. The Supremes conclude they do not. The Civil Union Act remains in effect (even if nobody will use it) so there is no complaint of the trial judge improperly striking it down. The state can't complain that the feds won't listen to their definition of marriage. In addition the original ruling wasn't limited to federal benefits. Gay couples who can't marry may receive hardship for which money cannot compensate. For example, if marriage is delayed and one of a gay couple dies, Social Security surviving benefits are forever gone. Finally, the court will not wait for the legislature to override Christie's veto. If there is ongoing unequal treatment, the court cannot defer.

A commenter adds the law that was vetoed contains religious exemptions the court case does not have.



And to top off the marriage equality news, New Mexico's Supreme Court will hear that state's case next Wednesday. Again, the news says the court might rule immediately.

Sigh, it would have been so cool to include Michigan in an October triple play.