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The big news tomorrow today is going to be oral argument scheduled before the Supreme Court in Elizabeth Kerrigan et al. v. Commissioner of Public Health et al, which is the gay marriage case. Plaintiffs have made the argument that Connecticut’s civil union law is unconstitutional under the Equal Protection clause of the Constitution and amounts to “separate but equal” treatment.

There are about 20 amicus briefs filed, leading to the recusal of both new Chief Justice Rogers and her replacement on the panel, former Chief Justice Sullivan.

The Judicial Department has issued this release for tomorrow’s arguments, in case you are planning to attend. Note that arguments will be broadcast live [the link should work tomorrow, but if doesn't just go to the home page] on CT-N tomorrow.

Here is the excerpt of the issues from the Judicial Branch’s website:

Same Sex Marriage; Whether Prohibition of Marriage Between Same Sex Couples Violates Equal Protection and Due Process Guarantees of Connecticut Constitution.The plaintiffs are same sex couples who were denied marriage licenses. They commenced this action seeking, among other things, a judgment declaring that any statute, regulation or common-law rule that is applied to deny same sex couples the right to marry violates the Connecticut constitution. While their action was pending, the legislature enacted Public Acts 2005, No. 05-10 (the civil union law), which confers on same sex couples who register their relationship with the state the same rights granted to opposite sex couples whose unions are legalized. The act also restricts the term “marriage” solely to opposite sex couples.

The parties filed cross motions for summary judgment. In arguing that they were entitled to the unique status of marriage, the plaintiffs claimed that (1) marriage is a fundamental right; (2) a civil union is a legal institution of a lesser status than marriage; (3) the use of two different terms - “marriage” and “civil union” - denotes a form of segregation akin to that under the “separate but equal” doctrine; (4) the lack of general recognition of the term “civil union” means that they must constantly explain their legal status to others; and (5) because civil unions, unlike marriages, are not recognized in most other jurisdictions, the plaintiffs may not be able to avail themselves of federal and interstate rights and benefits.

The trial court rejected the plaintiffs’ arguments and rendered judgment in favor of the defendants. In so ruling, it found that the legislature’s intent in enacting the civil union law was to confer on same sex couples rights that are not only equal to, but are identical to, those enjoyed by opposite sex couples. It stated that although the plaintiffs feel that they have been relegated to a second-class status, the text of our statutes does not place them there. It further stated that the fact that different groups are referred to by two different names does not provide the basis for an equal protection or due process challenge. The court ruled that the plaintiffs’ claim regarding the absence of the term “civil union” in common parlance was speculative, and even if they should have to explain its meaning, that fact does not amount to legal harm. It acknowledged that other jurisdictions’ lack of recognition of same sex civil unions creates a host of ills and uncertainty for the plaintiffs in their attempt to avail themselves of rights outside of Connecticut. It stated, however, that the problem does not stem from the nomenclature used in the Connecticut legislation, but rather, from the other jurisdictions’ refusal to enact legislation that recognizes the basic civil rights that Connecticut has recognized.

In this appeal, the Supreme Court will determine whether the trial court was correct in rendering summary judgment in favor of the defendants.

Tomorrow sure will be fun!

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