Fallout over Supreme Court decision: New Jersey, other states court fights intensify

Jan Brewer

After the fireworks surrounding its landmark rulings on two cases involving same-sex marriage, the U.S. Supreme Court quietly dispensed with nine other DOMA-related petitions last week, denying their requests for review.

In most of those cases, the DOMA decision in U.S. Windsor took care of the questions presented. But some legal activists took special note of the fact that the Supreme Court also refused to hear an appeal from Arizona Governor Jan Brewer.

The Brewer case, Brewer v. Diaz, challenged a DOMA-like amendment passed by voters in Arizona in November 2008. The amendment to the state constitution prohibited state recognition of same-sex relationships and officially redefined “spouses” in state law to exclude state employees with same-sex partners. Lambda Legal filed suit, representing a group of gay Arizona state employees because the new state law barred them from signing up their domestic partners and children for family health insurance coverage. A federal judge ruled the state law violated the U.S. Constitution’s guarantee of equal protection, and, in a preliminary ruling, the Ninth Circuit ordered the state not to enforce the new law, pending its review. The Supreme Court’s action last week denied Brewer’s petition for Supreme Court review of that preliminary action.

The Supreme Court also refused to take up a case out of Nevada concerning statewide bans on same-sex marriage. That case, Coalition for the Protection of Marriage v. Sevcik, was brought to the high court by the Coalition, a group opposed to same-sex marriage. The Coalition, which lost a challenge to the state ban in the district court (brought by Lambda Legal), tried to leapfrog over the Ninth Circuit for a ruling from the Supreme Court. The Supreme Court rarely takes such appeals, so not much can be read into the court’s reluctance to take the Nevada case.

In other court action, Supreme Court Justice Anthony Kennedy denied a request from Yes on 8 supporters that the Supreme Court stop the implementation of its Windsor ruling before the Supreme Court had officially delivered the decision to the Ninth Circuit. Under normal procedures, a Supreme Court decision, such as in the Proposition 8 case, is formally conveyed to the appeals court below in about 25 days. But California Attorney General Kamala Harris said her reading of the law is that the Ninth Circuit did not have to wait to receive that official decision before lifting a stay it put on the district court decision, pending appeals. Harris asked the Ninth Circuit to lift its stay immediately and, on Friday, June 28, at 3:22 p.m. PDT, the federal appeals court did so. Same-sex couples immediately began getting married again in California.

The Yes on 8 coalition filed an application Saturday asking Kennedy, who oversees Ninth Circuit affairs for the Supreme court, to vacate the Ninth Circuit’s order lifting the stay. But on Sunday, Kennedy denied the request.

Also last week, an immigration judge in New York ruled that a Manhattan gay man’s Columbian husband could stay in the country indefinitely. The ruling came just hours after the Supreme Court decision in DOMA.

The Columbian, Steven Infante, had expected the judge to order him to leave the country at Wednesday morning’s hearing. According to a New York Times report, Infante married American Sean Brooks in New York in 2011, shortly after the legislature passed a bill to ensure marriage equality in the state. But Infante’s visa had expired and DOMA had prevented him from seeking a routine marital green card to stay in this country with his spouse.

And in New Jersey, which has a civil unions law, Lambda Legal announced Friday that it would file a motion this week asking the state superior court judge to rule that, in light of the Supreme Court decision on DOMA, New Jersey’s civil union option for same-sex couples clearly denies them equal protection of the law.

Haley Gorenberg, a Lambda attorney working on an 11-year-old lawsuit seeking marriage equality in that state, said the DOMA ruling was a “game changer” in New Jersey. The fact that DOMA now guarantees married same-sex couples federal benefits, she said, means the state supreme court now has evidence of tangible harms done to same-sex couples who can obtain only civil unions in New Jersey.

Because the case has already been to the state supreme court once, and because the plaintiffs include Garden State Equality, with thousands of members, Gorenberg said a ruling by the superior court judge “essentially decides for the state.”

Gorenberg said the judge has set an expedited briefing schedule for a ruling. Oral argument is tentatively scheduled for August 15.

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