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New Jersey Gov. Chris Christie speaks at the Republican National Convention in Tampa, Florida, Aug. 28, 2012.

(Harry E. Walker/MCT)

A word of advice for Gov. Chris Christie: It’s time for him to end his effort to keep the rising tide of same-sex marriage from sweeping over his own state. History is against him — and so are the courts of New Jersey.

As gay couples prepare this morning to exchange vows ASAP, thanks to a unanimous Supreme Court opinion joined by its conservative members — including Justice Anne Patterson, whom Christie appointed — it’s time to pull the plug on his legal battle against marriage equality.

That battle heated up last summer when six families and the gay-rights group Garden State Equality petitioned for a summary judgment that New Jersey’s civil unions law fails to afford same-sex couples “the full rights and benefits enjoyed by heterosexual married couples” to which the Supreme Court has said they’re entitled under the equal-protection guarantee of the state constitution. Christie mobilized his lawyers to oppose the effort. His side has been taking a battering ever since.

In September, the administration lost in Superior Court, where Mercer County Assignment Judge Mary Jacobson granted the plaintiffs’ petition and ordered the state to begin issuing marriage licenses to same-sex couples beginning today. Last week, it lost in the Supreme Court, which agreed to hear its appeal of Judge Jacobson’s decision but rejected, 7-0, its request for a stay of her order.

Significantly, the justices found that “the state has not shown a reasonable probability of success (of winning the case) on the merits.” Even if they eventually overturn the judge’s finding that the state constitution requires marriage equality — an outcome that now seems remote — they agreed with her that no “irremediable harm” will befall the state if gay couples get married in the meantime.

As Jacobson wrote, California’s experience “teaches that marriage can be extended to same-sex couples in a state and then removed without dire consequences to the state.” In California, a voter-approved initiative in 2008 overturned same-sex marriage after a few months, but didn’t un-marry the some 18,000 couples that had obtained licenses in the meantime. The “largely abstract” harm alleged by Christie’s lawyers, she added, “pales in comparison to the concrete harm caused to plaintiffs by their current ineligibility for many federal marital benefits.”

That harm arose from the U.S. Supreme Court’s June decision in United States vs. Windsor that overturned the federal Defense of Marriage Act (DOMA), transformed the status of civil unions vis-à-vis marriage, and now has made New Jersey the 14th state, plus the District of Columbia, to legalize same-sex weddings.

What DOMA’s demise did was allow Washington to extend a broad range of tangible and emotional benefits to gay couples in lawful marriages — but not civil unions — covering such areas as joint tax returns, family and medical leave, Medicare, health insurance, pensions, retirement and spousal survivorship, the right to sponsor a non-citizen partner to live in the United States and the right to be buried in a national cemetery beside a partner.

Among the more creative claims by Christie’s lawyers has been that the New Jersey plaintiffs chose the wrong target and should be suing not the state but the federal government, since the alleged discrimination against civil union couples is caused by federal, not state, action. This denial of benefits, they added, also interferes with New Jersey’s sovereign right to decide how to apportion the obligations and privileges of marriage. In rejecting these points, Jacobson neatly exposed the indifference of the administration to its own stated concerns.

“Despite its impassioned arguments to this court, the state has shown no interest in challenging the federal agencies’ interpretations of Windsor to protect its sovereignty,” she wrote. “It has shown no interest in demanding the equality it claims must be accorded to New Jersey civil union couples from Congress or the federal courts.

“Plaintiffs would face an enormous litigation burden if they were required to challenge, on their own, every federal agency interpretation of Windsor denying equal access to marital benefits to civil union couples. Instead of using their creative legal talent and resources to protect its sovereignty and the equal protection rights of many of its citizens by challenging what it believes to be the federal government’s violation of its sovereignty, the state foists the unfair litigation burden on plaintiffs and other New Jersey civil union couples.

“Since the sovereignty of the state appears not to be important enough for the state to even attempt to protect it from incursion by the federal government, its invocation of sovereignty as a basis for granting a stay here is appropriately given short shrift.”

The state Supreme Court has scheduled oral arguments on the governor’s appeal for Jan. 6 and 7. Advocates of marriage equality should be comforted by knowing that the appeal will be heard by the present court rather than by a potential future court with a majority of Christie-appointed justices — justices who, he has taken pains to assure us, will share his distaste for what he calls “judicial activism.”

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