In a landmark decision entered on September 27, 2013, Mercer County Superior Court Judge Mary Jacobson ordered the State of New Jersey to allow same-sex marriages as of October 21, 2013. Based on indications from New Jersey Governor Chris Christie's administration, the state intends to seek a stay of the lower court's ruling in Garden State Equality v. Dow, pending the state's appeal of the court's decision.

Since 2007, New Jersey has recognized same-sex civil unions. The New Jersey Legislature enacted the Civil Union Act in 2007, following the New Jersey Supreme Court's ruling in Lewis v. Harris, 188 N.J. 415 (2006). In Lewis, the New Jersey Supreme Court held that the equal protection clause of the New Jersey Constitution requires same-sex couples to be afforded the same rights and benefits enjoyed by opposite-sex couples in civil marriage. The Lewis court indicated that the state could fulfill its obligation by either amending the marriage statutes to include same-sex couples or by enacting a parallel statutory scheme that would provide same-sex couples the same rights and benefits afforded to heterosexual couples in civil marriage. Rather than amend the marriage statutes, the New Jersey Legislature enacted the Civil Union Act.

On June 26, 2013, the United States Supreme Court decided the case of United States v. Windsor, in which the nation's highest court rejected in part the Defense of Marriage Act and guaranteed federal benefits for same-sex couples married in states that recognize same-sex marriages. Because New Jersey does not recognize same-sex marriages, same-sex couples united by civil unions in New Jersey are not eligible for the federal benefits required by the Supreme Court's decision in Windsor. In the wake of the Court's ruling in Windsor, the plaintiffs in Dow moved for declaratory judgment seeking, among other things, a declaration from a New Jersey trial court that the right to marry be extended to same-sex couples given the mandates of the Lewis decision and the New Jersey Constitution's equal protection guarantee.

In evaluating the plaintiff's motion for summary judgment in Dow, the New Jersey Superior Court recognized that because same-sex civil union partners in New Jersey are ineligible for many federal marital benefits, the Civil Union Act no longer provides same-sex couples with equal access to the rights and benefits enjoyed by married heterosexual couples in New Jersey. Since the issue was not squarely before the court, the court abstained from ruling on the constitutionality of the Civil Union Act; however, the Court found that the lack of equal benefits to New Jersey same-sex couples post-Windsor results solely from the label placed upon them by the state. The court concluded that this inequity violates the equal protection clause of the New Jersey Constitution as interpreted by the state's highest court in Lewis. To remedy the current inequity, the court ordered the State of New Jersey to extend the right to marry to same-sex couples so that they can be afforded equal protection of the law under the New Jersey Constitution. The court ruled that its decision would apply prospectively as of October 21, 2013, to allow the state time to implement the court's decision or pursue its appeal rights.

About a year ago, Governor Christie vetoed a same-sex marriage bill and encouraged the state legislature to introduce legislation banning same-sex marriages in New Jersey. State lawmakers, led by a Democratic majority, declined to pursue such legislation, saying that issues of civil rights should not be decided by popular referendum. The rights of same-sex partners to marry in New Jersey is now in the hands of the judiciary. Duane Morris will monitor the expected appeal of the Dow decision and will issue a follow-up Alert regarding the impact of this case on the rights of New Jersey same-sex couples, particularly as they relate to their employment.