New Jersey, Illinois Eyed as Key DOMA Test


By Jamie Rubenstein

More than a month after the U.S. Supreme Court struck down the Defense of Marriage Act and California’s Prop 8, LGBT attorneys have wasted little time—particularly in key battleground states—in bringing fresh court and legislative challenges to erode barriers to equality.

In recent weeks attention has focused most heavily on New Jersey and Illinois, where LGBT equality advocates see the best hope for lifting or overturning state legal prohibitions in state court.

“Our next court hearing date in New Jersey is August 15 on our petition for a summary judgment,” said a spokeswoman for Lambda Legal, which represents the plaintiff Garden State Equality and is leading the LGBT challenge before a Superior Court judge in Trenton.

In a statement issued by Lambda’s deputy legal director, Hayley Gorenberg, the advocacy group noted that with DOMA now gone, the state “is, as a matter of law, in direct violation of the New Jersey Supreme Court order we won in 2006 that requires equality for same-sex couples, and in violation of the Equal Protection clause of the federal Constitution.”

Litigation in the Trenton court, which has also been joined by the American Civil Liberties Union (ACLU), comes as Democrats in the state legislature step up their push for an override of Governor Chris Christie’s veto of gay marriage legislation in 2012, with one legal source telling 429Magazine “they are just three votes shy” of clearing the override.

Meanwhile, in Illinois, Lambda Legal and the ACLU of Illinois have been on the offensive, filing its own summary judgment motion in Cook County Circuit Court on July 9, seeking a swift end to what the plaintiffs said is the “the harm and indignity couples face without the freedom to marry—which now includes the inability to access the 1,100 federal marriage benefits.”

The motion for summary judgment on the case dealing with civil unions and known as Darby v. Orr comes as Lambda Legal, in a parallel move, seeks to dismiss an intervening petition by the right-wing Thomas Moore Law Center.

“We are expecting oral arguments on the dismissal motion August 6,” explained senior staff attorney Christopher Clark for Lambda Legal in Chicago, who maintains there are similarities between Illinois and New Jersey in the type of cases being brought.

Nonetheless, “multi-tiered confusion” still reigns, with DOMA’s impact causing ongoing consternation among both same sex couples already married and those planning weddings. Questions also remain, he said, on the ability of couples in civil unions to gain federal benefits now that DOMA has been struck down.

In discussing ex-DOMA confusion, Clark said that “the status of labeling” as to a marriage’s “state of celebration or state of residence” remains an issue of contention still to be decided by federal agencies, including the IRS.

“We have yet to hear from the IRS,” even on related issues dealing with joint filing, Clark pointed out.


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