Amicus Curiae Brief — Deboer v. Snyder, 135 S. Ct. 1040 (2015) (No. 14-571)

Supreme Court, U.S,

FILED

MAR - 6 2015

Nos. 14-556, 14-562, 14-571 & 14-574 | OFFICE OF THE CLERK

Bn the Supreme Court of the Gnited States

oF PL a _D>GNe

JAMES OBERGEFELL, ET AL.,

Petitioners,

RICHARD HODGES, Director,

Ohio Department of Health, ET AL.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

BRIEF OF AMICUS CURIAE

GARDEN STATE EQUALITY

IN SUPPORT OF PETITIONERS

LAWRENCE S. LUSTBERG

COUNSEL OF RECORD

JOSEPH A. PACE

GIBBONS P.C.

ONE GATEWAY CENTER

NEWARK, NJ 07102

(973) 596-4500

LLUSTBERG@GIBBONSLAW.COM

MARCH 6, 2015 COUNSEL FOR AMICUS CURIAE

RMR TT

SUPREME COURT PRESS ¢ (888)968-5705 ¢ BOSTON, MASSACHUSETTS

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ..........................cccccceeeees i

INTEREST OF AMICUS CURIAE.................0.....000000 1

SUMMARY OF ARGUMENT. .....0...............ccccccceeseeeee 2

CC 5

I. THe HisTory OF CIvIL UNIONS IN NEW JERSEY ... 5

Il. DENYING SAME-SEX COUPLES MARRIAGE

LICENSES DEPRIVES THEM OF FEDERAL

Ill. NEW JERSEYS EXPERIENCE WITH CIVIL

UNIONS DEMONSTRATES THAT DENYING

SAME-SEX COUPLES THE RIGHT TO MARRY

DENIES THEM EQUAL PROTECTION ................. 13

A. Civil Union Couples in New Jersey

Lacked Workplace’ Benefits and

Protections Equal to Their Married

B. Same-Sex Couples, Because They Could

Not Marry, Faced Unequal Treatment

and a Lack of Recognition in Public

Accommodations and Civic Life Under

the Ciwil Uniiome Act ........cccccscccccccccccccscees: 19

C. Same-Sex Couples and Their Children

Suffered Disparate and Unfair Financial

Burdens Under the Civil Unions Regime

Because They Could Not Marry................ 26

TABLE OF CONTENTS — Continued

Page

D. The Maintenance of a Separate Non-

Marriage Status Harmed Certain

Children and Deprived Them of Equal

ID cccsnescennsenssnsensessensagneessensesnmn 28

E. The Unequal Treatment Resulting from

the Civil Unions Act’s Withholding of

Marriage Caused Psychological and

Dignitary Harm to Same-Sex Couples..... 32

i Pecrnnscscesenensesemsmeseenensneanonussenmuneneamases 37

TABLE OF AUTHORITIES

Page

CASES

Andersen v. King County,

158 Wn.2d 1 (Wasi. 2006) ...............eeeccceeeeees 15

Campaign for Southern Equal. v. Bryant,

2014 U.S. Dist. LEXIS 165913

(S.D. Miss. Nov. 25, 2014) ...........000000-oeo cee 20

Diaz v. Brewer,

656 F.3d 1008 (9th Cir. 2011) ...........-- 15

Garden State Equal. v. Dow,

2013 N.J. Super. Unpub. LEXIS 2585

(Law Div. Sept. 27, 2013) .........00.....cceecccceeeee 1,10

Garden State Equality v. Dow,

ERE re 2,10

Garden State Equality v. Dow,

No. MER-L-1729-11, N.J. Super. Unpub.

LEXIS 360 (N.J. Super. Ct.-L. Div.

Eee passim

Hollingsworth v. Perry,

Eee one 20

In re Marriage Cases,

183 P.3d 384 (Cal. 2008) .........00.0000. cece. 20, 28

Kitchen v. Herbert,

755 F.3d 1193 (10th Cir. 2014) ........00.o 29

Latta v. Otter,

771 F.3d 496 (9th Cir. 2014).........0.0.0000.000.. 15, 35

Lewis v. Harris,

188 N.J. 415 (2006) 22... ececccceeeeeeeeeeees passim

IV

TABLE OF AUTHORITIES—Continued

Page

Lewis v. Harris,

I S)

Lewis v. Harris,

378 N.J. Super. 168 (App. Div. 2005) ................. 5

Perry v. Schwarzenegger (Perry IV),

704 F. Supp. 2d 2010 (9th Cir. 2010).......... 29, 35

Quarto v. Adams,

395 N.J. Super. 502 (App. Div. 2007) ............... 21

United States v. Windsor,

570 U.S. __, 133 S. Ct. 2675 (2013).......... passim

Varnum v. Brien,

763 N.W.2d 862 (Iowa 2009) ..00........eceeeeeceeeeneee 29

STATUTES

EEN an ear eee eee eC Ee ee sere 11

Rs Se I I ce erssiicicemnsininiiieidninnaaendaian 18

en 18

ESS Une Ne etme sT 6

| SER TES rpersnen lense beer temeaneas 6

I 34

RISES RES on ere een an oP 6

EARN ene RE meee 27

I 7

TABLE OF AUTHORITIES—Continued

Page

JUDICIAL RULES

I iki a 8

ER RTE ee ER Pe 1

I is Et Upteannisensntinisiicicensedisitiittintnenmniinngniaeitinummeiniadais 1

OTHER AUTHORITIES

Complaint, GSE v. Dow, MER-L-1729-11

(N.J. Super. Ct., L. Div. June 29, 2011) ....passim

Ee 22, 23

CURC Hrsg, April 16, 2008,

available at http://www.nj.gov/oag/dcr/

downloads/Transcript%20CURC-and |

CURC Hr’g, March 19, 2008, available at

http-//www.nj.gov/vag/dcr/downloads/

Transcript-CURC-03192008. pdf.................0..... 19

CURC Hr’g, May 21, 2008, available at http://

www.nj.gov/oag/dcr/downloads/Transcript-

CURC-and-Public-Hearing-05212008.pdf........ 17

CURC Hr’g, Nov. 5, 2008, available at http-//

www.nj.gov/oag/dcr/downloads/Transcript-

itccsncntsesiennscomsnccnnenmninsees 16, 30

CURC Hr’g, Oct. 15, 2008, available at http://

www.nj.gov/oag/dcr/downloads/Transcript-

i riteccnenscctensiensctatinenmunes 18, 23, 24

TABLE OF AUTHORITIES—Continued

MaryAnn Spoto, Gov. Christie Vetoes N.J. Gay

Marriage Bill, Star-Ledger, Feb. 18, 2012 ......... 8

N.J. CURC, First Interim Report of the New

Jersey Civil Union Review Commission

(Feb. 19, 2008) available at http://www.

state.nj.us/Ips/dcr/downloads/1st-Interim

N.J. CURC, The Legal, Medical, Economic &

Social Consequences of New Jersey's Civil

Union Law 1-2 (Dec. 10, 2008) available at

http: lhwww. nj.gov/lps/dcr/downloads/

N.J. Senate Rejects Bill Legalizing Gay

Marriage, Star-Ledger, Jan. 7, 2010 .................. 8

Office of Personnel Management Benefits

Administration Letter No. 13-203

(July 17, 2013), available at https://www.

opm.gov/retirement-services/publications-

forms/benefits-administration-letters/

TT TD 11

Opinions of the Justices to the Senate, supra,

440 Mass. 1201 (Mass. 2004) ........00.-0..eeee eee 20

U.S. Department of Labor, “Guidance to

Employee Benefit Plans on the Definition

of ‘Spouse’ and ‘Marriage’ under ERISA

and the Supreme Court's Decision in

United States v. Windsor,” available at

TABLE OF AUTHORITIES—Continued

U.S. Dep't of State, “U.S. Visas for Same-Sex

Spouses: FAQs for Post-Defense of

Marriage Act,” available at http-//travel.

state.gov/content/dam/visas/DOMA/

DOMA%20FAQsS. pdf ....................eccecceeeseeeeeseeeees 11

United States v. Windsor on Skilled Nursing

Facility Benefits for Medicare Advantage

Enrollees,” August 29, 2013, available at

http://www.cms.gov/Medicare/Health

Plans/HealthPlansGenInfo/Downloads/

SNF_Benefits_Post_Windsor.pdf...................... 13

+> DG) Gist

INTEREST OF AMICUS CURIAE

Amicus curiae Garden State Equality (“GSE”) is

New Jersey's largest organization advocating for the

civil rights of lesbian, gay, bisexual, and transgender

(“LGBT”) individuals and the greater LGBT

community.! Since its founding in 2004, GSE has

grown to more than 125,000 members and has

successfully advocated for the passage of no less than

213 LGBT hate-crime, antidiscrimination, and anti-

bullying laws in New Jersey. GSE also led the

campaign for New Jersey to ratify a marriage

equality bill, which was successfully passed by the

New Jersey Legislature in 2012, before being vetoed

by the Governor. GSE spearheaded a campaign to

override that veto.

In addition to its organizing, education and

advocacy related to LGBT issues in New Jersey, GSE

participated as a plaintiff in Garden State Equality

v. Dow, which successfully challenged New Jersey’s

laws precluding same-sex couples from marrying,

and relegating them to civil unions. That lawsuit

resulted in the legalization of same-sex marriage in

1 The parties have consented to the filing of this brief.

Respondents issued a blanket consent to the filing of all amicus

briefs on behalf of either party. See Docket Nos. 14-556, 14-562,

14-571, 14-574. A Letter of Consent from Petitioners has been

filed with the Clerk of the Court in accordance with Supreme

Court Rule 37.2(a). Pursuant to Rule 37.6, no counsel for any

party has authored this brief in whole or in part, and no person

or entity, other than the above-mentioned amicus curiae or its

counsel, made a monetary contribution intended to fund the

preparation or submission of this brief.

New Jersey in October 2013. See Garden State

Equality v. Dow, 216 N.J. 314 (2013).

GSE has a strong interest in the Court’s decision

in this case, which addresses an issue identical to

that presented in GSE’s New Jersey litigation—the

constitutionality of a State’s denial of marriage

licenses to same-sex couples. In campaigning for

marriage equality, as it did for many years, GSE

documented the experiences of same-sex couples in

New Jersey who were denied marriage, including the

various ways in which New Jersey's denial of

marriage harmed same-sex couples. GSE brings that

knowledge and understanding to bear as amicus

curiae in this case and urges this Court to reverse

the judgment of the United States Court of Appeals

for the Sixth Circuit.

—

SUMMARY OF ARGUMENT

This case presents the question whether the

Equal Protection Clause of the Fourteenth Amendment

requires a state to license a marriage between two

people of the same sex, and to recognize a marriage

between two people of the same sex when their

marriage was lawfully licensed and performed out-of-

state. Amicus curiae GSE respectfully submit that

the laws of Kentucky, Michigan, Ohio and Tennessee

withholding the right to marry from gay and lesbian

couples—and denying recognition of out-of-state same

sex marriages—violate the Equal Protection Clause of

the Fourteenth Amendment. As amicus curiae shows

in describing the experience of civil unions in New

Jersey, the only way to protect same-sex couples from

the grossly unequal and demeaning treatment to

which they are accordingly subjected is to afford

them the right to marry. Neither civil unions nor any

other legal arrangement short of actual marriage—

even those that ostensibly afford couples identical

legal rights—will suffice.

As amicus curiae GSE argues below, the

significance accorded the word “marriage” and the

injury caused by denying same-sex couples the right

to marry are profound. Marriage is the term that

society uses to recognize the deepest, most

significant, loving relationship into which two adults

can enter. As GSE has documented, government

officials, private businesses and organizations, as

well as individual citizens in New Jersey and

elsewhere, all recognize the uniqueness of marriage:

no other designation can ever capture that same

meaning or convey that same value.

Nor is relegating same-sex couples to a parallel

status of “civil union” or “domestic partnership” a

mere semantic difference. Since United States v.

Windsor, 570 U.S. __, 133 S. Ct. 2675 (2013), which

struck down the Defense of Marriage Act (“DOMA”),

federal agencies have overwhelmingly determined

that federal benefits will only be provided to same-

sex couples who are legally married. Moreover, as

amicus curiae sets forth below, New Jersey's

differentiation between marriage and civil union

profoundly and concretely altered the lives of same-

sex couples, resulting in civil union partners being

denied access to their loved ones in hospitals; being

deprived of health insurance by their partners’

employers; incurring additional financial burdens in

obtaining goods and services; suffering additional

costs to acquire additional legal protections for each

other and their children: and, ultimately, experiencing

psychological and dignitary injuries. Such treatment

of same-sex couples can only be justified by a compelling

state interest, which no state has been able to

demonstrate under the appropriate constitutional

standards.

Rather, all of the harms that same-sex couples

suffered in New Jersey and that amicus curiae

documents in this brief stem from the central truth

that other courts have recognized in striking down

restrictions on the rights of same-sex couples to

marry: marriage signifies a couple’s commitment to

each other in the most profound way recognized by

our law and society; that, as a result, marriage

extends to couples not only a menu of legal rights

and privileges but also the social and symbolic

recognition of that relationship’s meaning and value,

for which no other institution can serve as an

adequate substitute.

Based on its experience with New Jersey's

denial of marriage to same-sex couples, amicus

curiae GSE urges this Court to reverse the decision

below and hold that the Equal Protection Clause

guarantees the right of same-sex couples to marry.

—..

ARGUMENT

I. THe History OF CIvi. UNIONS IN NEW JERSEY

On June 26, 2002, six same-sex couples filed a

complaint seeking a declaration that New Jersey’s

denial of marriage licenses to them violated the due

process and equal protection guarantees of Article I,

Paragraph 1 of the New Jersey Constitution and an

injunction compelling the State to grant them

marriage licenses. See Lewis v. Harris, 188 N.J. 415,

427 (200G). After the parties filed cross-motions for

summary judgment, the trial court granted summary

judgment to the State, id. at 428, a decision which

was affirmed by a divided appellate panel. See Lewis

v. Harris, 378 N.J. Super. 168 (App. Div. 2005).

On October 25, 2006, the New Jersey Supreme

Court reversed, concluding that New Jersey’s failure

to afford same-sex couples the same rights as

opposite-sex couples violated the State’s equal-

protection guarantee. Lewis, 188 N.J. at 423, 457.

The court found that same-sex couples in New Jersey

faced regular “social indignities and economic

difficulties ...due to the inferior legal standing of

their relationships compared to that of married

couples,” including higher health care premiums,

denial of health care coverage, and the refusal of

hospitals and medical care providers to recognize

same-sex partners as family members during health

care crises. /d. at 426. Further, the New Jersey

Supreme Court concluded that the State had “failed

to show a public need for [its] disparate treatment” of

same-sex couples in New Jersey. /d. at 457. In the

absence of a legitimate governmental purpose, the

court held that “denying to committed same-sex

couples the financial and social benefits and privileges

given to their married heterosexual counterparts”

violated the equal protection guarantee of the New

Jersey Constitution. /d.

To remedy this constitutional violation, the New

Jersey Supreme Court directed the State to “either

amend 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.” Jd. at 463.

The court noted, however, that purportedly “identical

schemes called by different names” might offend the

State Constitution. Jd. at 459.

In response to Lewis, on December 12, 2006, the

New Jersey Legislature enacted the Civil Union Act,

stating its intent “to comply with the constitutional

mandate set forth” in Lewis, N.J.S.A. 37:1-28(e), and

purporting to provide to same-sex couples “all the

rights and benefits that married heterosexual

couples enjoy.” N.J.S.A. 37:1-28(d). The Act directed

that “[clivil union couples shall have all of the same

benefits, protections and responsibilities under law,

whether they derive from statute, administrative or

court rule, public policy, common law or any other

source of civil law, as are granted to spouses in a

marriage.” N.J.S.A. 37:1-31(a). The Legislature also

established a Civil Union Review Commission

(“CURC”’ or “the Commission”), which it charged with

evaluating “the effectiveness of the act”; collecting

“information about the act’s effectiveness from

members of the public, State agencies and private

and public sector businesses and organizations”;

determining “whether additional protections are

needed”; and determining “the effect on same-sex

couples, their children and other family members of

being provided civil unions rather than marriage.”

N.J.S.A. 37:1-36(c).

In February 2008, the CURC issued an interim

report setting forth its preliminary finding that the

Civil Union Act failed to comply with the constitutional

requirements of Lewis. The Commission cited evidence

that the Civil Union Act was not guaranteeing to

same-sex couples the full rights and benefits enjoyed

by heterosexual married couples in the State. N.J.

CURC, First Interim Report of the New Jersey Civil

Union Review Commission (Feb. 19, 2008) (“Interim

Report, available at http://www.state.nj.us/Ips/dcr/

downloads/1st-InterimReport-CURC.pdf (last visited

Feb. 25, 2015). For example, the Commission detailed

significant disparities between the legal protections

and benefits afforded to couples in civil unions in

New Jersey and those permitted to marry in the

areas of employment and health care and cited

evidence that same-sex couples and their children

face the stigma of “second-class legal status.” /d. at 4,

9-13.

Six months later, the CURC issued its final

report, in which it unanimously concluded that the

Civil Union Act’s creation of a parallel civil union

status “invites and encourages unequal treatment of

same-sex couples and their children” and

“demonstrates that the provisioning of the rights of

marriage through the separate status of civil unions

perpetuates the unequal treatment of committed

same-sex couples.” N.J. CURC, The Legal, Medical,

Economic & Social Consequences of New Jersey's

Civil Union Law 1-2 (Dec. 10, 2008) (“Final Report’),

available at http-://www-nj.gov/ips/dcr/downloads/

CURC-Final-Report-.pdf (last visited Feb. 25, 2015).

In light of “the overwhelming evidence presented to

the Commission.” the CURC unanimously

recommended to the Legislature and the Governor

that the law be amended “to allow same-sex couples

to marry” and that it be done “expeditiously because

any delay in marriage equality will harm all the

people of New Jersey.” Jd. at 3.

New Jersey's political branches failed to act to

remedy the problems identified by the CURC. A bill

providing for marriage equality cleared the Senate

Judiciary Committee in 2009, but the full Senate

refused to pass the measure. See N.J. Senate Rejects

Bill Legalizing Gay Marriage, Star-Ledger, Jan. 7,

2010. Two years later, the New Jersey Legislature

passed a gay marriage bill, but it was vetoed by

Governor Chris Christie. MaryAnn Spoto, Gov.

Christie Vetoes N.J. Gay Marriage Bill, Star-Ledger,

Feb. 18, 2012.

As a result, same-sex couples in New Jersey

returned to the courts. Specifically, on March 18,

2010, the plaintiffs in Lewis filed a motion in aid of

litigants’ rights with the New Jersey Supreme Court.

See N.J. Court Rule 1:10-3. In that motion, the Lewis

plaintiffs contended that the CURC’s findings—as

well as evidence adduced by the Legislature during

hearings on the marriage equality bill pending in

2009-conclusively demonstrated that the State’s

Civil Union Act violated the equal-protection principle

announced in Lewis. Thus, the JZewis plaintiffs

argued, they were entitled to relief from the New

Jersey Supreme Court in the form of an order

permitting them and all other same-sex couples to

marry in the State. On July 26, 2010, the Court

denied the motion without prejudice to the matter

being raised in a new lawsuit. Lewis v. Harris, 202

N.J. 340 (2010).

On June 29, 2011, a group of plaintiffs, including

GSE, filed suit in the Superior Court of New Jersey,

alleging that New Jersey's exclusion of same-sex

couples from the institution of civil marriage violated

the Equal Protection and Due Process Clauses of the

Fourteenth Amendment, as well as the equal

protection and due process guarantees of Article I,

Paragraph 1 of the New Jersey Constitution.

Plaintiffs’ state and federal equal protection claims

survived pretrial motion practice, see Garden State

Equality v. Dow, No. MER-L-1729-11, 2012 N.I.

Super. Unpub. LEXIS 360 (N.J. Super. Ct.-L. Div.

Feb. 21, 2012), and the case proceeded to discovery.

The GSE lawsuit focused on the experiences of six

same-sex couples—two of whom were named plaintiffs

in the Lewis litigation—and upon the myriad harms

that were visited upon them by their relegation to

the separate civil union status.

While fact discovery was ongoing, this Court

issued its opinion in Windsor striking down DOMA

and holding that the federal government must

extend federal marital benefits to same-sex couples

who are lawfully married in states that have granted

same-sex couples the right to civil marriage.

Immediately following that decision, GSE moved for

10

summary judgment arguing that the civil union

regime violated state and federal equal protection

principles because, post- Windsor, New Jersey’s same-

sex couples would be denied the full panoply of

federal marriage benefits that they would receive

were they permitted to marry. The superior court

granted GSE’s motion for summary judgment,

Garden State Equal v. Dow, 2013 N.J. Super.

Unpub. LEXIS 2585, at *88 (Law Div. Sept. 27, 2013)

(“the current inequality visited upon same-sex civil

union couples offends the New Jersey Constitution,

creates an incomplete set of rights that Lewis sought

to prevent, and is not compatible with a reasonable

conception of basic human dignity”), and the New

Jersey Supreme Court subsequently denied the

State’s request for a stay, finding that after Windsor,

“same-sex couples in New Jersey are now being

deprived of the full rights and benefits the State

Constitution guarantees.” Garden State Equality v.

Dow, 216 N.J. 314, 326 (2013). The State then

withdrew its appeal.

While same-sex marriage is now legal in New

Jersey, that State’s failed experiment with civil

unions demonstrates that equality can never be fully

realized by relegating same-sex couples to a state-

created separate status. More to the point here, the

New Jersey experience shows the real effects of

denying marriage to similarly situated couples solely

on the basis of their sexual orientation.

Il DENYING SAME-SEX COUPLES MARRIAGE LICENSES

DEPRIVES THEM OF FEDERAL BENEFITS

DOMA had prohibited the federal government

from recognizing legal same-sex marriages authorized

11

by state law. 1 U.S.C. § 7. Its invalidation by this

Court therefore prompted federal agencies to re-

evaluate whether same-sex couples were eligible for

federal benefits. Most agencies reacted to Windsor by

extending benefits to all legally married same-sex

couples but denying the same benefits to those same-

sex couples that were in civil unions or some other

lesser legal arrangement. Thus, for example:

The Office of Personnel Management, announced

that same-sex couples in civil unions were not

entitled to benefits under federal health benefit,

life imsurance, or longterm care insurance

programs. See Office of Personnel Management

Benefits Administration Letter No. 13-203 GWuly

17, 2013), available at https://www.opm.gov/

retirement-services/publications-forms/benefits-ad

ministration-letters/2013/13-203.pdf (last accessed

Feb. 25, 2015) (explaining that “same-sex couples

who are in a civil union or other forms of domestic

partnership other than marriage will remain

ineligible for most Federal benefits programs”);

The State Department decided that it would only

recognize actual marriages when determining

spousal eligibility for immigration purposes. See

U.S. Dep't of State, “U.S. Visas for Same-Sex

Spouses: FAQs for Post-Defense of Marriage Act,”

available at http-//travel.state.gov/content/dam/

visas/DOMA/DOMA%20FAQs.pdf (last visited

Feb. 25, 2015);

The Department of Defense made clear that it

would extend benefits only to legally married

same-sex couples. See Press Release, American

Forces Press Service, DOD Announces Same-Sex

12

Spouse Benefits (Aug. 14, 2013), available at http:/

lwww.defense.gov/news/newsarticle.aspx?id=120621

(“{IJn consultation with the Department of Justice

and other executive branch agencies, the Defense

Department will make spousal and family benefits

available ... regardless of sexual orientation, as

long as service member-sponsors provide a valid

marriage certificate.”);

The Department of Labor announced that it too

would only extend benefits to legally married

same-sex couples. Wage and Hour Division, U.S.

Department of Labor, “Fact Sheet #28F:

Qualifying Reasons for Leave under the Family

and Medical Leave Act” (2013) (defining spouse for

the purposes of the FMLA as “a husband or wife

as defined or recognized under state law for

purposes of marriage in the state where the

employee resides, including ‘common law

marriage and same-sex marriage.”); U.S.

Department of Labor, “Guidance to Employee

Benefit, Plans on the Definition of ‘Spouse’ and

‘Marriage’ under ERISA and the Supreme Court’s

Decision in United States v. Windsor,” available at

http://www.dol.gov/ebsa/newsroom/tr13-04.

htm] (last accessed Feb. 25, 2015) (excluding civil

union partners from spousal coverage under the

Earned Retirement Income Security);

The Internal Revenue Service issued a ruling

confirming that same-sex married couples would

be treated the same as opposite-sex married

couples for federal tax purposes, but that civil

union couples would be treated differently. Rev.

Rul. 2013-17, at 4, 12; (“For Federal tax purposes,

13

the term ‘marriage’ does not include registered

domestic partnerships, civil unions, or other

similar formal relationships recognized under

state law that are not denominated as a marriage

under that state’s law.”); and

e The Centers for Medicare & Medicaid Services

(“CMS”) issued a memorandum directing

Medicare Advantage organizations to cover

services in skilled nursing facilities for “validly

married” same-sex spouses, to the same extent

that services would be required for opposite-sex

spouses. Memorandum from Danielle R. Moon,

Director of CMS, “Impact of United States v.

Windsor on Skilled Nursing Facility Benefits for

Medicare Advantage Enrollees,” August 29, 2013,

available at http://www.cms.gov/Medicare/Health

Plans/HealthPlansGenInfo/Downloads/SNF_Bene

fits_Post_Windsor.pdf (last visited Feb. 25, 2015).

In short, as these administrative actions in the

wake of Windsor show, to deny marriage licenses to

same-sex couples is to deny them myriad federal

benefits that legally married couples enjoy. The

resulting violation of the Equal Protection Clause

ought not be countenanced.

Ill. NEW JERSEYS EXPERIENCE WITH CIVIL UNIONS

DEMONSTRATES THAT DENYING SAME-SEX

COUPLES THE RIGHT TO MARRY DENIES THEM

EQUAL PROTECTION

LGBT couples’ experiences in New Jersey

demonstrate that-even putting aside the issue of

federal marriage benefits-the difference between

marriage and civil unions is not one of mere

14

nomenclature. Rather, as the CURC found and as

GSE v. Dow plaintiffs showed in the course of the

litigation, during New Jersey's six-year experiment

with civil unions, same-sex couples routinely

encountered significant obstacles in exercising their

civic rights, including problems being allowed to

make decisions regarding medical treatment for their

civil union partners, withholding of health benefits

and workplace protections, and denial of rights

accorded others by family law. Fina/ Report at 11-15.

These burdens also unfairly disadvantaged the

children of same-sex couples.

This disparate treatment of same-sex couples in

New Jersey cannot be regarded simply as private

discriminatory conduct by individuals who act in

contempt or ignorance of the law. Rather, it was a

direct product of the State’s refusal to allow same sex

couples to marry. As the Commission reported,

“denying... access to the widely recognized civil

institution of marriage while conferring legal benefits

under a parallel system ... imposes a second-class

status on same-sex couples and sends the message

that it is permissible to discriminate against them.”

Final Report at 8. The inequality found by the

Commission, described below, will exist in any state

where same-sex couples are prohibited from

marrying. Final Report at 2. See also Latta v. Otter,

771 F.3d 496, 500 (9th Cir. 2014) (“preventing same-

sex couples from marrying and refusing to recognize

same-sex marriages celebrated elsewhere, impose

profound legal, financial, social and psychic harms on

numerous citizens of those states”) (internal

quotation marks and citation omitted).

15

A. Civil Union Couples in New Jersey Lacked

Workplace Benefits and Protections Equal to

Their Married Counterparts

In Lewis, the New Jersey Supreme Court noted

that “[wlithout the benefits of marriage,” same-sex

couples were forced to pay “excessive health insurance

premiums because employers did not have to provide

coverage to domestic partners.” Jd. at 426.2

Additionally, the Court found, same-sex couples “receive

fewer workplace protections than married couples.”

Id. at 449. The Civil Union Act did not fix those

problems; rather, inequality in employment benefits

and workplace protections persisted until same-sex

couples were afforded the right to marry. During

New Jersey's experiment with civil unions, lesbian

and gay employees were routinely denied benefits—

including health insurance—-that were extended to

heterosexual married employees. Final Report at

11-13.

As one New Jersey resident testified, after being

denied coverage for his civil union partner—who, as a

result, had to buy more costly, less comprehensive

insurance—the “civil union” designation served as an

invitation to employers to treat same-sex couples

2 See also Diaz v. Brewer, 656 F.3d 1008 (9th Cir. 2011), cert.

denied, 2013 U.S. LEXIS 4941 (June 27, 2013) (plaintiffs

successfully challenged Arizona law preventing state employees

from enrolling their same-sex partners in state health

insurance due to their inability to marry); Andersen v. King

County, 158 Wn.2d 1, 41-42 (Wash. 2006) (“many day-to-day

decisions that are routine for married couples are more

complex, more agonizing, and more costly for same-sex couples.

A married person may be entitled to health care and other

benefits through a spouse.”).

16

differently. See CURC Hr’g, Sept. 26, 2007, at 79

(Test. of Robert Corcoran). At the very least, the

designation caused confusion on the part of employers,

who were accustomed to administering benefits

based upon marriage and, as one employment law

attorney told the Commission, were “questioning

whether they have to provide benefits” to couples in

civil unions because their benefits “plan says ‘spouse’

or ‘marriage.” CURC Hr’g, Oct. 24, 2007, at 81 (Test.

of Luanne Peterpaul). See also CURC Hr’g, Nov. 5,

2008, at 43-44 (Test. of John Corbitt), available at

http://www.nj.gov/oag/dcr/downloads/Transcript-

CURC-11052008.pdf (last visited Feb. 25, 2015). But

whether due to confusion or not, the result was the

same: employers did not extend equal benefits to

those who were not actually married. Thus, the

CURC hearings revealed that an employer denied

health care coverage to a Vietnam veteran’s civil

union partner because the employer’s benefits were

“only available to legally married spouses,” CURC

Hr’g, Sept. 26, 2007, at 64-65 (Test. of Donald

Rogers); a major pharmaceutical company refused to

list an employee’s civil union partner as a surviving

“spouse” under its pension plan, id. at 68-69; an

employer denied its employees’ civil union partners

flex-spending accounts, id. at 98 (Test. of Jesse

Thompson Adams); and a major airline denied an

employee the right to take family leave to care for his

civil union partner, CURC Hr’g, Oct. 24, 2007, at 97-

98 (Test. of Henri Simonetti). Indeed, as the example

of a GSE v. Dow plaintiff illustrated, even the State

of New Jersey failed to provide benefits to its

employees’ civil union partners. Thus, the plaintiff,

an employee of a New Jersey community college,

17

temporarily lost his health insurance coverage for his

civil union partner and children because the State’s

insurance auditor did not recognize civil union as a

valid relationship. Compl. 4 14, GSE v. Dow, MER-L-

1729-11 (N.J. Super. Ct., L. Div. June 29, 2011).

Furthermore, the relegation of committed same-

sex couples to civil union status caused disparate

treatment of lesbian and gay employees subject to

collective bargaining agreements (“CBAs”). Thus, if a

previously negotiated CBA referred only to “spousal”

benefits, those contracts excluded from coverage

those who were not married, even if they were in civil

unions. CURC Hr’g, Sept. 26, 2007, at 42-44 (Test. of

Jodi Weiner, Int’] Bhd of Elec. Workers Local 456);

see also CURC Hr’g, May 21, 2008, at 41 (Test. of

Mauro Camporeale, Ex. Dir., Bergen Ct’y Central

Trades and Labor Council, AFL-CIO), available at

http://www.nj.gov/oag/dcr/downloads/Transcript-

CURC-and-Public-Hearing-05212008.pdf (last visited

Feb. 25, 2015). That is, because they could not marry,

lesbian and gay workers were “treated differently

from straight employees.” CURC Hr’g, May 21, 2008,

at 38 (Test. of Carla Katz, Pres., Comme’ns Workers

of Am. Local 1034), Ex. 20; id. at 49 (Test. of

Rosemarie Cipparulo) (“{IIt’s demoralizing and

divisive for workers in the same job title, doing the

same work, to be subject to different benefits”).

Exclusion from marriage also created additional

adverse consequences for employees of companies

that funded their own insurance plans—nearly fifty

percent of New Jersey, Fina/ Report at 11—and were

therefore governed by the federal Employee

Retirement Income Security Act, 29 U.S.C. § 1001 et

18

seqg., (“ERISA”), which allows self-insured employers

to choose how to define “spouse.” As the CURC found,

ERISA-governed New Jersey employers who provide

marriage-based benefits frequently declined to

expand their spousal definitions to include partners

in civil unions, thus denying healthcare, pension, and

other benefits to those who could not marry. /d. at

11-12. One witness testified that he would be unable

to continue the health care coverage of his civil union

partner after his retirement because Johnson &

Johnson, his employer of 29 years, refused coverage

under ERISA. CURC Hr’g, Oct. 15, 2008, at 54-55

(Test. of Roger Asperling). Similarly, employers often

invoked other provisions of federal law that reference

marriage to deny same-sex couples benefits, including

so-called “COBRA” benefits after termination of

employment under 29 U.S.C. §§ 1161-1169, see

CURC Hr’g, Sept. 26, 2007, at 91 (Test. of Thomas

Mannix). In stark contrast to New Jersey, the CURC

found that in states such as Vermont and

Massachusetts where marriage equality was the law,

ERISA-governed employers routinely extended

benefits to same-sex partners. Fina/ Report at 6, 11,

20; CURC Hr’g, March 19, 2008, at 132-33 (Test. of

Mark Solomon, Dir., Mass Equality), available at

http://www.nj.gov/oag/dcr/downloads/Transcript-

CURC-03192008.pdf (last visited Feb. 25, 2015);

CURC Hr’g, Sept. 26, 2007, at 38 (Test. of Tom

Barbera, V. Pres., AFL-CIO).

Finally, civil unions undermined workplace

equality for same-sex couples because, in order to

obtain benefits regularly provided to others, these

couples had to advocate with their employers for

coverage. That inquiry required them to divulge

19

details of their private lives in the employment

context, making them more vulnerable to discri-

mination. Louise Walpin, a GSE v. Dow plaintiff,

“felt compelled to inquire whether her prospective

employers offered benefits to civil union partners

when looking for a nursing job in New Jersey,” and

often “wonderled) whether some employers

discriminated against her and did not hire her

because her inquiries disclosed her sexual

orientation.” Compl. J 47, GSE v. Dow. This type of

forced “outing,” of course, does not exist in

jurisdictions where same-sex couples are allowed to

marry.

B. Same-Sex Couples, Because They Could Not

Marry, Faced Unequal Treatment and a Lack

of Recognition in Public Accommodations and

Civic Life Under the Civil Unions Act

Beyond workplace benefits, the record before the

CURC revealed that the inequality effected by

extending same-sex couples the right to enter a civil

union but not marriage extended to nearly all

aspects of these couples’ financial, commercial, and

civic dealings, perpetuating what the New Jersey

Supreme Court called a “system of disparate

treatment.” Lewis, 188 N.J. at 453.3 The civil union

3 See also Windsor, 133 S. Ct. at 2681 (“purpose and effect” of

law denying recognition to same-sex marriages “are to impose a

disadvantage, a separate status, and so a stigma upon all who

enter into same-sex marriages made lawful by the unquestioned

authority of the States”); Perry v. Brown, 671 F.3d 1052, 1063-

64 (9th Cir. 2012), vacated and remanded by Hollingsworth v.

Perry, 133 S. Ct. 2652 (2013) (moting that preventing same-sex

couples from marrying “lessens the status and human dignity of

gays and lesbians in California, and [] officially reclassiflies]

20

designation-—that is, the inability to marry—proved a

symbol of difference and inferiority for same-sex

couples and an obstacle to their participation in

myriad aspects of civic life.

As the Commission observed, many civil union

couples encountered “obstacles and frustrations”

because government, employer, and health care

forms would “not address or appropriately deal with

the status of being in a civil union.” Final Report at

9. This “lack of recognition,” id., resulted in “unequal

treatment” for same-sex couples, id. at 14, which

“persistled] despite directives from the New Jersey

Department of Health and Senior Services regarding

the implementation of the Civil Union Act.” Jd. at 15.

Indeed, local branches of nationwide financial

services, real estate, and other companies delayed or

altogether refused to change their policies, forms, or

their relationships and families as inferior to those of opposite-

sex couples” and “single[sjout a disfavored group for unequal

treatment”); Campaign for Southern Equal. v. Bryant, 2014

U.S. Dist. LEXIS 165913, at *5 (S.D. Miss. Nov. 25, 2014)

(“Mississippi's same-sex marriage ban deprives same-sex

couples and their children of equal dignity under the law. Gay

and lesbian citizens cannot be subjected to such second-class

penny a a In re Marriage Cases, 183 P.3d 384, 445 (Cal.

2008) (noting that denying marriage only to same-sex couples

risks “causling] the new parallel institution that has been made

available to those couples to be viewed as of a lesser stature

than marriage and, in effect, as a mark of second-class

citizenship”); Kerrigan v. Comm’r of Pub. Health, 289 Conn.

135, 151 (Conn. 2008) (“[mlaintaining a second-class citizen

status for same-sex couples by excluding them from the

institution of civil marriage is the constitutional infirmity at

issue.” (quoting Opinions of the Justices to the Senate, supra,

440 Mass. 1201, 1209 (Mass. 2004)) (emphasis in original)).

21

computer programs to accommodate the new and

anomalous legal category engendered by “civil

unions.” As a result, individuals—because they could

not marry—were forced to supply additional

information or documentation, in order to engage in

financial transactions, CURC Hr’g, Oct. 24, 2007, at

61-63 (Test. of Kevin Slavin); buy or refinance a

house, id. at 47 (Test. of Rose Levant-Hardy); apply

for insurance, Compl. 7 33(c), GSE v. Dow; or even

arrange for the funeral of a loved one, id. J 33(b).

This contributed to the inferior status profoundly

experienced by same-sex couples, as did the difficulty

experienced by these couples in filing their taxes.

CURC Hrg at 107, Oct. 24, 2007 (Test. of Leslie

Farber, Chair, N.J. State Bar Assoc. Gay, Lesbian,

Bisexual, Transgender and Intersex Section); Compl.

9 44, GSE v. Dow: see also Quarto v. Adams, 395

NJ. Super. 502 (App. Div. 2007) (resolving dispute of

same-sex couple married in Canada with Division of

Taxation regarding ability to file joint tax. return).

Likewise, many government agencies failed to accord

equal recognition to same-sex couples, even those in

civil unions. Thus, one witness before the CURC

encountered difficulty at the Department of Motor

Vehicles when attempting to change his surname to

match that of his civil union partner. Sept. 26, 2007

CURC Hr’g at 98-99 (Test. of Jesse Thompson

Adams). Likewise, prospective jurors in civil unions

often felt compelled to “out” themselves during voir

dire by stating their relationship status in response

to the question whether they are married or single.

See CURC Hr’g, Oct. 10, 2007, at 67-68 (Test. of

Veronica Kairos); Compl. 9 32, GSE v. Dow.

22

Unequal treatment of same-sex couples also

persisted in hospitals and critical-care settings even

though New Jersey law required hospitals to

recognize the rights of individuals in civil unions to

access their partners during medical treatment.

Final Report at 14; May 21, 2008 CURC Hr’g at 20-

21 (Test. of John Calabria, Dep’t of Health and

Senior Servs.). Several GSE v. Dow plaintiffs were

subject to this mistreatment. Daniel Weiss was

denied access for a painfully long period, after his

partner, John T. Grant, had been struck by a car and

rushed to an emergency room with a shattered skull

and an epidural hematoma; still, hospital staff

insisted on calling John’s sister and having her drive

four hours to the hospital in the middle of the night

so she could sign medical authorizations for him.

Compl. 4 31(a), GSE v. Dow. When Tevonda

Bradshaw went into labor and was admitted to the

hospital, her partner, Erica Bradshaw, was not

recognized as the child’s parent and Erica was forced

to go home to retrieve Tevonda’s identification while

Tevonda was in the process of giving birth to their

child, even though Erica and Tevonda were in a civil

union. Jd. 4 31(b). And on two occasions, Cindy

Meneghin had to explain to emergency room staff

that her partner, Maureen Kilian, had a right to

make decisions on Cindy’s behalf if she could not do

so herself, just as she would if they were married. /d.

q 310).

These incidents are not isolated. Many health

care providers informed civil union partners that

they were not entitled to receive health information

about their partners or to be in the same room with

them while they receive treatment. See CURC Hrg,

23

Oct. 10, 2007, at 12-13 (Test. of Paul Walker); CURC

Hr’g, Oct. 24, 2007, at 51-52 (Test. of Lori

Davenport); N.J. Sen. Judiciary Comm. Hr’g at 59

(Dec. 7, 2009) (Test. of William Paul Beckwith)

(recounting that a New Jersey hospital emergency

worker refused to recognize him as next-of-kin for his

civil union partner). One individual, prior to having

surgery, noticed that a hospital worker changed the

status of her emergency contact from “civil union

partner” to “friend,” a status that has no legal

meaning, but epitomizes the denigration of

committed relationships that was experienced

routinely by same-sex couples because they could not

actually marry. N.J. Sen. Judiciary Comm. Hr’g at

180 (Test. of Margaret Maloney). Nor were these

incidents inconsequential: the lack of recognition of a

status other than marriage led to delays in the

provision of critical care in life-threatening

situations. See CURC Hr’g, Oct. 24, 2007, at 27-29,

and CURC Hr’, Oct. 15, 2008, at 40-47 (Test. of

Gina Pastino) (explaining delay in son’s emergency

treatment due to time spent with hospital staff

explaining relationship of partner to her son).

New Jerseys experience teaches that this

unequal treatment flows from the designation of

same-sex couples as something other than married.

In the words of one individual whose civil union

partner was denied access to her in a life-threatening

situation, had her partner been able to say “This is

my spouse, and we are married,’ people would

instantly know the significance of that relationship.

They may not like it, but at least everybody has a

frame of reference in this society regarding the term

marriage and spouse and husband and wife.

24

Everybody knows what that means.” Oct. 15, 2008

CURC Hr’g at 43-44 (Test. of Gina Pastino), Ex. 23.

In contrast to these New Jersey couples, married

same-sex couples have had their relationships

recognized and given full effect in these most

vulnerable moments. For example, one Massachusetts

woman described the “huge relief’ that marriage

brought her and other same-sex couples, because “lilf

you have a car crash and end up in the hospital that

you don’t know, or an ER, you know that you’re going

to be treated like anybody else.” CURC Hr’g, April

16, 2008, at 52 (Test. of Marsha Hams), available at

http://www.nj.gov/oag/dcr/downloads/Transcript%

20CURC-and-Public-Hearing-04162008.pdf (last visited

Feb. 25, 2015). Meanwhile, by compelling contrast,

one individual described the pain of having his out-

of-state marriage go unrecognized in New Jersey and

the relief he experience when same-sex marriage was

legalized.

We moved out here from California 3 years

ago and were immediately down-graded to a

civil union. It was infuriating that our legal

marriage was not recognized as such. We've

been married for 13 years, granted legally

only for a portion of that. Having our

marriage recognized, and marriage equality

in New Jersey has affirmed our relationship

as being as valid as my sister and brother

in-law’s (who, as an aside, was the Rabbi

who married us when it was still illegal).

Civil unions are a far cry from being

married, and not very affirming of the love

we have. Since New Jersey recognizes our

25

marriage, we can file married on the federal

level, which has dramatically improved our

tax situation. It also makes it impossible for

employers to discriminate and not cover my

husband with the myriad of benefits that

come with employment. Being married is

one of the great joys in our life, and having

it recognized by the State as well as the

Feds, while it does nothing for our love or

commitment to each other, affirms it to

others and makes us equal citizens.

Statement of Lee Shapiro-London in Email from

GSE, Feb. 27, 2015.

Finally, the lack of recognition encountered by

same-sex couples in New Jersey was magnified when

they travelled outside of New Jersey. Several GSE v.

Dow plaintiffs experienced anxiety about traveling

for fear that, in the event of an emergency, their civil

union status would not be recognized, because it was

not marriage. Compl. 9734, GSE v. Dow. For

example, plaintiff Daniel Weiss carried paper and

electronic copies of his healthcare proxies everywhere

he went, in the event that such an emergency

occurred. Id. ¥ 42.

In sum, these anecdotes from New Jersey

demonstrate not merely the unique and anomalous

legal status of civil unions, which were routinely

unrecognized by private organizations and public

agencies. But the treatment afforded same-sex

couples by government workers, medical staff and

facilities, is illustrative of a principle that is more

directly relevant here: that same-sex couples suffer

26

in very real ways when they are not permitted to

marry.

C. Same-Sex Couples and Their Children

Suffered Disparate and Unfair Financial

Burdens Under the Civil Unions Regime

Because They Could Not Marry

The Civil Union Review Commission concluded

that, even after the passage of the Civil Union Act,

same-sex couples continued to face economic and

financial inequities, and that these disadvantages

had a predictably negative impact on their children.

Final Report at 24. Specifically, the Commission

concluded that, as many individuals testified, the

Civil Union Act did little to alter the preexisting

norm, where, faced with uncertain legal standing,

same-sex couples were forced to face “[t]he prospect

of litigating from now into eternity to get the benefits

and protections” that married couples receive as a

matter of course. Sept. 26, 2007 CURC Hr ¢ at 85

(Test. of Steven Carter). See also Final Report at 14.

As a consequence, civil union couples and their

families found themselves bearing the expensive

burden of taking legal steps to effect the recognition

of their relationships in New Jersey while opposite-

sex married couples enjoyed clear, statutorily

prescribed rights. Unsurprisingly, this burden was

experienced most acutely by lower income New

Jersey residents, who are disproportionately people

of color. See CURC Hr’g, May 21, 2008, at 32-33

(Test. of Nicole Sharpe, Office of the Pub. Advocate);

Final Report at 14. By contrast, in marriage equality

states, married same-sex couples no longer need, in

the words of one CURC witness from Massachusetts,

27

to use “a special gay rights lawyer” to effect financial

and real estate transactions. CURC Hr’g, April 16,

2008, at 53 (Test. of Sue Shepherd).

For example, despite the Civil Union Act’s

requirement that “laws related to tuition assistance

or higher education for surviving spouses or children”

apply “in like manner” to civil union couples,

N.J.S.A. 37:1-32(v), the Free Application for Federal

Student Aid used by New Jersey neither recognized

the legal relationship of same-sex parents, nor

permitted children to list one parent as a second

dependent in the household, disqualifying them from

certain grants or unsubsidized loans. /d. at 14. Thus,

children of same-sex couples were often denied

financial aid to which they may be entitled. CURC

Hr’g, April 16, 2008, at 13-14 (Test. of Jane Oates,

Exec. Dir., Comm’n on Higher Educ.).

This inequality was, as the Director of New

Jersey's financial aid program acknowledged to the

Commission, purely a matter of administrative

convenience: “[T]he problem,” he stated, “is in order

to have a new separate database, we have to create a

new form, new process, duplicate the application

process, duplicate ...the information process, and

that’s just something that’s extremely expensive and

almost impossible” given current fiscal constraints.

Id. at 19 (Test. of Michael Angulo, Exec. Dir., N.J.

Higher Educ. Student Assistance Auth.). See also

Final Report at 30 (noting that the costs of changing

the system have not been budgeted by the government).

28

D. The Maintenance of a Separate Non-

and Deprived Them of Equal Treatment

In addition to the disparate financial burdens

faced by same-sex couples and their families,

children of same-sex parents, as well as lesbian and

gay youth, in New Jersey were harmed by the State’s

relegation of same-sex relationships to an alternate

and inferior status. Indeed, New Jersey's maintenance

of the separate civil union status sent a message that

“same-sex couples are not equal to different-sex

married couples in the eyes of the law, that they are

‘not good enough’ to warrant true equality.” Fina/

Report at 2; see also id. at 35 (“[I]t is apparent that

affording access to [marriage] exclusively to opposite-

sex couples, while providing same-sex couples access

only to a novel alternative designation, realistically

must be viewed as constituting significant unequal

treatment to same-sex couples.”) (quoting Jn re

Marriage Cases, 183 P.3d at 445).

As the New Jersey Supreme Court acknowledged,

“[c]hildren have the same universal needs and wants,

whether they are raised in a same-sex or opposite-sex

family,” Lewis, 188 N.J. at 451, and, thus, one of the

core purposes of assigning legal significance to

committed relationships is to meet those “needs and

wants” by encouraging committed, monogamous

relationships among parents. /d. at 453; see also

Windsor, 133 S. Ct. at 2694 (DOMA, by failing to

recognize same-sex marriages, “humiliates tens of

thousands of children now being raised by same-sex

couples. The law in question makes it even more

difficult for the children to understand the integrity

29

and closeness of their own family and its concord

with other families in their community and in their

daily lives.”); accord Kitchen v. Herbert, 755 F.3d

1193, 1226 (10th Cir. 2014); Perry v. Brown, 671 F.3d

at 1069 n.4 (9th Cir. 2012) (“the children of same-sex

couples benefit when their parents marry”) (citing

Perry v. Schwarzenegger (Perry IV), 704 F. Supp. 2d

at 2010, 973, 980-81)); Varnum v. Brien, 763 N.W.2d

862, 883 (Iowa 2009) (“Society benefits... from

providing same-sex couples a stable framework

within which to raise their children... , just as it

does when that framework is provided for opposite-

sex couples.”). Even civil unions, we now know, have

a destabilizing effect on the children of same-sex

parents, in light of the legal uncertainty and

economic disadvantages visited upon same-sex

couples, all of which “prevent children of same-sex

couples from enjoying the immeasurable advantages

that flow from the assurance of a stable family

structure in which the children will be reared,

educated, and socialized.” Final Report at 36.

Indeed, New Jersey's experience demonstrates

that denying same-sex couples the right to marry

places children in a state of fear and vulnerability,

which is the natural result not only of the palpably

different treatment these families receive in

numerous settings, but of the inevitable perception

that their families are different from and inferior to

other families. Dr. Judith Glassgold, a _ licensed

practicing psychologist, testified that the Civil Union

Act contributed to an already existing stigma

associated with homosexuality, which affects the

children of same-sex relationships just as much as

their parents. April 16, 2008, CURC Hr’g, at 44-45.

30

Mary Jean Weston, a licensed clinical social worker

and Assistant Executive Director of the National

Association of Social Workers-New Jersey, testified

that children of same-sex couples under the Civil

Unions Act regime were “forced to understand and,

worse yet, explain the stigmatizing and cumbersome

label of civil union.” Jd. at 65.

The children of same-sex couples experienced

this stigma and vulnerability in a powerful and

poignant way. For example, Kasey Nicholson-

McFadden, the son of two GSE v. Dow plaintiffs,

testified before the New Jersey Senate Judiciary

Committee that, “it doesn’t bother me to tell kids

that my parents are gay, but it does bother me to say

they can’t get married, because it makes me feel that

our family is less than their family.” N.J. S. Jud.

Comm. Hr’g at 113 (Dec. 7, 2009); Compl. 4 13, GSE

v. Dow. A religious leader who officiates at many

weddings testified that, in his experience, children of

same-sex couples were confused by the label of “civil

union” which implies that their parents’ union “is

something less” and not “as meaningful” as marriage.

CURC Hr’g, Nov. 5, 2008, at 29-31 (Test. of Charles

Stevens). Kathryn Dixon, Vice President of the

National Association of Social Workers, affirmed that

civil unions did little to alleviate the stigma felt by

same-sex families, as her colleagues had “to spend

session hours hearing the grief of children and

families related to these issues.” N.J. S. Jud. Comm.

Hr’g (Dec. 7, 2009), at 102.

In contrast, the CURC heard testimony from

same-sex couples who are legally married in other

jurisdictions regarding the positive impact that being

31

married had on their children. See Fina/ Report at

22; CURC Hr’g, April 16, 2008, at 58-61 (Test. of

Laura Patey) (stating that her marriage was “always

in the forefront of [her son’s] thinking” because it

gave him “a sense of validation of being part of a real

family”); id. at 60-61 (Test. of Leah Powers) (“I

cannot tell you the impact that 15 mimutes and the

marriage license had on our two young guys.”). One

adult child of a same-sex couple from Massachusetts

testified that, growing up, he had been constantly

“afraid to ask my teammates or friends to stay at the

house because I was afraid that they would see that

my parents have one...bedroom, but I was also

afraid that my coach would either cut me from the

team or bench me, and that was something that

happened all the way up until my parents got

married,” at which point he “felt like finally I was

protected.” CURC Hr’g, April 16, 2008, at 47 (Test. of

Peter Hams), Ex. 18. This witness described the

marriage of his parents as “the biggest thing in my

life.” Jd.

Gay and lesbian youth were also deeply affected

by the inferior label of civil unions, which was a

powerful symbol of their unequal status in New

Jersey. As one young person stated in 2009, “liln

New Jersey I am a second-class citizen, someone who

does not have equal rights, someone who it is

perfectly okay to treat differently according to the

State government.” N.J. S. Jud. Comm. Hr’g at 105

(Dec. 7, 2009) (Test. of John Otto). By contrast,

children in states with marriage equality are

encouraged to participate, not only in society, but

also in the kind of stable relationships that are, after

all, what marriage is all about. See CURC Hr’g, April

32

16, 2008, at 54 (Test. of Peter Hams) (describing

reaction of gay teenagers to the marriage of his

same-sex parents: “[Ylou can see in their eyes that

finally there’s hope that their relationship is just as

good as anybody else’s.”). Dr. Marshall Forstein,

Associate Professor of Psychiatry at Harvard Medical

School, testified that, for lesbian and gay teenagers

who already face a heightened risk of suicide,

depression, and marginalization, the full extension of

equal rights through marriage equality “has

significant meaning both internally and socially”

with great potential for mitigating their sense of

isolation and stigma. /d. at 33. He testified that the

same is true for the children of same-sex parents,

noting that since the advent of marriage equality in

Massachusetts, “there’s a sense that the children

themselves have new status in the culture because

their parents are legal.” Jd. at 37.

E. The Unequal Treatment Resulting from the

Civil Unions Act’s Withholding of Marriage

Caused Psychological and Dignitary Harm to

Same-Sex Couples

Finally, same-sex couples suffer psychological

and dignitary harm as a result of not being permitted

to marry. History shows that the burden has fallen

on same-sex couples to attempt, even when they were

in civil unions, to try to convince the world that their

relationships should be considered equal to different-

sex relationships. For example, the plaintiffs in GSE

v. Dow had to explain and justify their relationship

when attempting to buy family insurance, Compl.

§ 33(b), GSE v. Dow. when filling out medical forms

and obtaining medical care, id. 9 33(c); and even

33

when making funeral arrangements for family

members. Jd. 4 33(a). The CURC concluded that,

while “marriage” carries “persuasive weight,” lesser

status, including civil unions, “described situations in

which they were forced to explain their civil union

status, what a civil union is, and how it is designed

to be equivalent to marriage.” Fina/ Report at 9; see

also CURC Hr’, Sept. 26, 2007, at 52 (Test. of

Thomas Walton) (“We feel like this is going to be our

lives now, explaining to people what a civil union

is.”).

The GSE v. Dow plaintiffs’ relationships were,

like the relationships of opposite-sex couples who

may marry in New Jersey, a central element of their

lives; their commitment was as solemn and meaningful

as marriage. Yet these plaintiffs and other same-sex

couples, including those in civil unions, were

deprived of being viewed this way, thus devaluing

their relationships. See, e.g, Compl. 4 6, GSE v. Dow

(describing Danie) Weiss and John T. Grant’s “wish

to be recognized as a married couple in New Jersey,

where they work and make their home”); id ] 12

(describing Marcye and Karen Nicholson-McFadden’s

concern that their children will be taught “that their

parents’ relationship or their family is of lesser

importance than any other family in New Jersey’).

Indeed, in New Jersey, where at least they could

enter into civil unions, these couples nonetheless

could “not invoke the status of marriage in order to

communicate to their children and others the depth

and permanence of [their] commitment in terms that

society, and even young children, readily understand

and respect.” Jd. ¥ 52.

34

Indeed, not being able to marry proved to isolate

same-sex couples from the married world around

them, causing emotional and psychological distress.

See CURC Hr’g, April 16, 2008, at 33 (Test. of

Marshall Forstein, M.D.) (equating civil union status

with sexual orientation discrimination, which

“contributes to increased rates of anxiety, depression

and substance-use disorders”). And because only

same-sex couples were limited to civil unions,

N.J.S.A. 37:1-29 (defining civil union as “legally

recognized union of two eligible individuals of the

same sex”), civil union status actually reinforced the

notion that sexual orientation is a legitimate basis

upon which to disfavor certain classes of people. See

CURC Hr’, Oct. 24, 2007, at 42 (Test. of Anthony

Giarmo) (explaining that, as parent of gay son, he

understands civil unions to communicate that

“homosexuals justifiably [can] be placed in a separate

relationship category”).

zee

In sum, New Jerseys experience with civil

unions establishes two essential points. First, it

reminds us that marriage serves as the State’s

“recognition and approval of a couple’s choice to live

with each other, to remain committed to one another

and to form a household based on their own feelings

about one another and to join in an economic

partnership and support one another and any

dependents,” Perry v. Schwarzenegger, 704 F. Supp.

2d at 961, and “is the principal manner in which the

State attaches respect and dignity to the highest

form of a committed relationship and to the

individuals who have entered it,” Perry v. Brown,

35

671 F.3d at 1079. And, second, it shows that denying

such recognition “materially harm[s] and demean|s]

same-sex couples and their children.” Latta v. Otter,

771 F.3d 456, 472-73 (9th Cir. 2014).

Specifically, creating a separate status injures

same-sex couples because, among other factors, such

designation “increases costs and _ decreases

wealth... because of increased tax burdens,

decreased availability of health insurance and higher

transactions costs to secure rights and obligations

typically associated with marriage,” Ferry v.

Schwarzenegger, 704 F. Supp. 2d at 978; “singles out

gays and lesbians and legitimates their unequal

treatment,” id. at 979; and “instructs all .. . officials,

and indeed all persons with whom same-sex couples

interact, including their own children, that their

marriage is less worthy than the marriages of

others.” Windsor, 133 S. Ct. at 2696.

New Jersey’s experience in ultimately legalizing

same-sex marriage demonstrates the same point. As

one GSE member explains:

My husband and I[ had our civil union on

April 5, 2013, surrounded by 70 relatives

and friends. We became married on December

13 of the same year, as New Jersey adopted

full marriage rights for all Americans.

Although we were life partners, and civil

union was a wonderful commitment to that,

it was in December when we truly felt

“married.” We can fully call each other

‘husband,’ knowing that it is fully recognized.

We don’t call it “gay marriage.” We don’t say

we're “gay married.” We are just “married,”

36

and the peace of mind that comes with that

is indescribable.

Statement of Joseph Rici in Email from GSE, Feb.

27, 2015.

Every individual deserves to enjoy that peace of

mind; it should not be denied to anyone based upon

their sexual orientation. Amicus curiae urges this

Court to reverse the Court of Appeals’ judgment and

hold that the Equal Protection Clause of the

Fourteenth Amendment to the Constitution of the

United States commands that same-sex couples be

afforded the right to marry.

37

CONCLUSION

For these reasons, amicus curiae urges that the

Court reverse the judgment of the Court of Appeals

for the Sixth Circuit.

Respectfully submitted,

LAWRENCE S. LUSTBERG

COUNSEL OF RECORD

JOSEPH A. PACE

GIBBONS P.C.

ONE GATEWAY CENTER

NEWARK, NJ 07102

(973) 596-4500

LLUSTBERG@GIBBONSLAW.COM

COUNSEL FOR AMICUS CURIAE

MARCH 6, 2015