Dignity in Windsor, at the VC and in NJ

A few posts over at The Volokh Conspiracy at the end of last week raised some good questions about the basis for, and going-forward import of, the Supreme Court’s invalidation of DOMA in United States v. Windsor. In two posts (so far), Neomi Rao has probed the Windsor majority opinion’s use of “dignity,” while Dale Carpenter has provided a different take on the basis for Windsor. And Will Baude has written a post analyzing Friday’s New Jersey trial court ruling that New Jersey must extend the designation of “marriage” to its civil unions (which in New Jersey provide the same legal benefits under New Jersey law as marriage). These posts highlight the confusion that Windsor has spawned by its lack of a clear legal basis. (But see Ernest A. Young, United States v. Windsor and the Role of State Law in Defining Rights Claims, 99 Va. L. Rev. Online 39, 40 (2013) (“[T]he trouble with Windsor is not that the opinion is muddled or vague; the rationale is actually quite  evident on the face of Justice Kennedy’s opinion.”).)

Some of this confusion stems, in my view, from Justice Kennedy’s description of state marriage law as conferring “dignity and status of immense import” upon those authorized to marry by state law. This understanding locates in the State much greater power than it possesses in a limited government. Properly understood, the State can undermine or promote human dignity through its laws (and in many other ways as well), but the State does not “confer” dignity. Once one assigns to the State a power that it is neither authorized nor suited to exercise, the boundaries that one then seeks to place around exercises of that power risk being arbitrary. (A similar dynamic comes into play when one assigns an attribute to the State that it does not, properly speaking, possess. Perhaps for this reason, the confusion surrounding Windsor resembles something of the confusion surrounding the Supreme Court’s use of “dignity” in its sovereign immunity jurisprudence.)

Whatever the sources of the confusion in Windsor, it is becoming increasingly clear that Windsor itself is a significant source of confusion for courts trying to figure out its legal import. This is apparent in last Friday's ruling from New Jersey, Garden State Equality v. Dow. The court in Dow ruled that the equal protection guarantee of the New Jersey Constitution requires New Jersey to extend the designation of "marriage" to same-sex couples that previously were eligible for civil unions in the state. The court's ruling rests on an interpretation and extension of the New Jersey Supreme Court's 2006 decision in Lewis v. Harris. In that case, the New Jersey Supreme Court held that the same state-law rights and benefits provided to married couples in New Jersey must also be provided to same-sex couples eligible for domestic partnerships. The problem with the domestic partnership scheme at issue in that case was that domestic partners received fewer state-law rights and benefits than married couples in New Jersey. The court in Lewis held that there was no fundamental right to marry, but that the state constitution's equal protection guarantee protected against discrimination in the form of fewer benefits for same-sex couples.

Following Lewis v. Harris, the New Jersey legislature enacted civil union legislation that provided same-sex couples in civil unions with identical state-law rights and benefits as enjoyed by married couples. This appears to have remedied the state-constitutional equal protection violation found in Lewis v. Harris. And that is where matters stood until Windsor.

After Windsor held the federal DOMA unconstitutional, various agencies of the federal government determined that same-sex couples who were married under state law would receive federal benefits as married couples under federal law. But these agencies did not treat state civil unions like marriages. Accordingly, same-sex couples in civil unions in New Jersey were not entitled to the same federal benefits as same-sex couples in marriages in other states that recognized same-sex marriage.

Friday's ruling in Garden State Equality v. Dow holds that, in the wake of Windsor, New Jersey must allow same-sex couples to marry under New Jersey law in order to be entitled to the same federal-law rights and benefits as married couples, as required by the equal protection guarantee of the New Jersey Constitution as construed in Lewis v. Harris. Here is how the Dow court summarizes its reasoning:

Under the New Jersey Supreme Court's opinion in Lewis v. Harris, 188 N.J. 415 (2006), same-sex couples are entitled to the same rights and benefits as opposite-sex couples. The Lewis Court held that the New Jersey Constitution required the State to either grant same-sex couples the right to marry or create a parallel statutory structure that allows those couples to obtain all the same rights and benefits that are available to opposite-sex married couples. The New Jersey legislature chose the latter option when it adopted the Civil Union Act. Since the United States Supreme Court decision in United States v. Windsor, __ U.S. ___, 133 S.Ct. 2675 (2013), invalidated the Defense of Marriage Act, several federal agencies have acted to extend marital benefits to same-sex married couples. However, the majority of those agencies have not extended eligibility for those benefits to civil union couples. As a result, New Jersey same-sex couples in civil unions are no longer entitled to all of the same rights and benefits as opposite-sex married couples. Whereas before Windsor same-sex couples in New Jersey would have been denied federal benefits regardless of what their relationship was called, these couples are now denied benefits solely as a result of the label placed upon them by the State.

The ineligibility of same-sex couples for federal benefits is currently harming same-sex couples in New Jersey in a wide range of contexts: civil union partners who are federal employees living in New Jersey are ineligible for marital rights with regard to the federal pension system, all civil union partners who are employees working for businesses to which the Family and Medical Leave Act applies may not rely on its statutory protections for spouses, and civil union couples may not access the federal tax benefits that married couples enjoy. And if the trend of federal agencies deeming civil union partners ineligible for benefits continues, plaintiffs will suffer even more, while their opposite-sex New Jersey counterparts continue to receive federal marital benefits for no reason other than the label placed upon their relationships by the State. This unequal treatment requires that New Jersey extend civil marriage to same-sex couples to satisfy the equal protection guarantees of the New Jersey Constitution as interpreted by the New Jersey Supreme Court in Lewis. Same-sex couples must be allowed to marry in order to obtain equal protection of the law under the New Jersey Constitution.

The court's reasoning is confusing. If the Civil Union Act remedied the violation of New Jersey's equal protection guarantee by ensuring identical state-law rights and benefits, then how does the new availability of federal-law rights and benefits to those who are married under federal law because married under state law affect the requirements of the equal protection guarantee of the New Jersey Constitution for couples who do not have a state-constitutional-right to marry? The court's reasoning seems to conclude that the New Jersey Constitution requires access to the federal law benefits enjoyed by married same-sex couples in other states. But if the only reason that those couples are entitled to those federal-law benefits is because the state in which those couples were married has chosen to confer the dignity and status of marriage on those couples, then why should a different state's constitutional equal protection guarantee require entitlement to federal-law benefits when that state has not chosen to confer the dignity and status of marriage on those couples?

Further, consider the following:

- "Under the New Jersey Supreme Court's opinion in Lewis v. Harris, 188 N.J. 415 (2006), same-sex couples are entitled to the same rights and benefits as opposite-sex couples." But what "same rights and benefits"? Under state law? Federal law? Both? It is hard to believe that Lewis v. Harris required the New Jersey legislature to provide same-sex couples with the same benefits under federal law as married opposite-sex couples.

- "The Lewis Court held that the New Jersey Constitution required the State to either grant same-sex couples the right to marry or create a parallel statutory structure that allows those couples to obtain all the same rights and benefits that are available to opposite-sex married couples." All the same rights and benefits under state law? Under federal law? Both? Again, it is difficult to imagine that Lewis v. Harris required the New Jersey legislature to provide same-sex couples with the same benefits under federal law as married opposite-sex couples.

- "The New Jersey legislature chose the latter option when it adopted the Civil Union Act." Since the Civil Union Act did not do anything to provide same-sex couples with the benefits of marriage under federal law, the New Jersey legislature chose a system in which same-sex couples could obtain all the same rights and benefits under state law that are available to opposite-sex married couples. So when the court says that Lewis required a choice between same-sex marriage and "a parallel structure that allows those couples to obtain all the same rights and benefits that are available to opposite-sex married couples," that parallel structure was measured by reference to state-law rights.

- "Since the United States Supreme Court decision in United States v. Windsor, __ U.S. ___, 133 S.Ct. 2675 (2013), invalidated the Defense of Marriage Act, several federal agencies have acted to extend marital benefits to same-sex married couples. However, the majority of those agencies have not extended eligibility for those benefits to civil union couples. As a result, New Jersey same-sex couples in civil unions are no longer entitled to all of the same rights and benefits as opposite-sex married couples." But same-sex couples in civil unions in New Jersey were not previously entitled to all of the same rights and benefits under federal law as opposite-sex married couples in New Jersey. And that did not violate the New Jersey Constitution. Same-sex couples in civil unions in New Jersey were entitled to the same rights and benefits under state law before Windsor, and they remain entitled to the same rights and benefits under state law after Windsor.

- "Whereas before Windsor same-sex couples in New Jersey would have been denied federal benefits regardless of what their relationship was called, these couples are now denied benefits solely as a result of the label placed upon them by the State." WIndsor held unconstitutional the refusal of federal-law marriage benefits to those upon whom the state conferred the dignity and status of marriage. Same-sex couples in New Jersey are not couples upon whom the state has conferred the dignity and status of marriage. Wasn't that the basic function of the Lewis court's distinction between interpreting the New Jersey Constitution to require "marriage" on the one hand, versus interpreting the New Jersey Constitution to allow civil unions with identical rights and benefits as marriage under a different label, on the other?