In a landmark decision (with three dissents), the Connecticut Supreme Court today ruled in Kerrigan v. Commissioner of Public Health, that prohibiting same-sex marriages violates the State Constitution’s equal protection clause.
In doing so, CT joins CA and MA in legalizing gay marriages via judicial decisions.
I cannot overstate how happy and proud I am of this decision and the implications. For the first time in a very long time, the Supreme Court issued a passionate, reasoned and intelligent decision that thoroughly discusses the law and the reasoning behind its decision.
I suspect that this decision will (or should) be referred to, studied and taught in law schools in the State for years to come. If anything, this decision is an excellent primer on equal protection law – both State and Federal.
The court ruled that sexual orientation is a “quasi-suspect” classification, warranting intermediate scrutiny.
Among the arguments raised by the State (and the dissents) were that same-sex couples are not “similarly situated” to opposite-sex couples and that the real purpose of marriage is only procreation, not anything more spiritual or meaningful.
These arguments should be (and are) easily dispensed with. The Court also rejects the argument that Article 1, Section 20 of the state Constitution contains an exclusive list of suspect classifications.
6 of the 7 justices also agreed that gay persons have suffered a history of invidious discrimination, that the characteristics that distinguish the group’s members bear no relation to their ability to contribute to or perform in society, that the characteristics are immutable or otherwise not within their control and that the group is a minority.
Where the majority separates from Justices Borden and Vertefuille (who wrote two of the three dissents) is the last consideration: that the group is politically powerless.
Justice Borden, in his dissent, points to the passage of the civil union bill as evidence of the strong political power of the gay community. The majority, on the other hand, relies on Frontiero v. Richardson (establishing gender as a suspect class) and the circumstances in existence at the time of that decision (women were a voting majority, many were in Congress) that accorded women heightened protection.
I think Justice Borden is just wrong. As the majority notes, in CT, there are only 5 gay legislators (nationwide, the number is around 400 – that’s a very small number), no openly gay Supreme or Appellate Court judges and only one openly gay Superior Court judge.
Just because a civil union bill was passed and signed into law, doesn’t mean that the minority isn’t powerful. In fact, it is perhaps a sign of their lack of clout – after all, most gay couples would rather have had gay marriage from the outset. Further, this civil union bill was passed only after a decade of failed attempts.
The citations in this decision are, on one hand, predictable (In Re Marriage Cases (CA), Lewis v. Harris (NJ), Baker v. State (VT) and Opinion of the Justices to the Senate (MA)), and on the other hand, interesting (Loving gets a lot of mentions, as do Bowers and Lawrence. Brown v. Board is also mentioned as is McCulloch).
As a side note, I can’t remember the last time I saw so many citations in one decision.
In the end, it does come down to whether marriages connotes something greater than civil unions. Yes. Everything else is identical between these two (former) statuses. As my fellow CT blogger Ryan asks: “what’s in a name?”
‘‘Any married couple [reasonably] would feel that they had lost something precious and irreplaceable if the government were to tell them that they no longer were ‘married’ and instead were in a ‘civil union.’ The sense of being ‘married’—what this conveys to a couple and their community, and the security of having others clearly understand the fact of their marriage and all it signifies—would be taken from them. These losses are part of what same sex couples are denied when government assigns them a ‘civil union’ status. If the tables were turned, very few heterosexuals would countenance being told that they could enter only civil unions and that marriage is reserved for lesbian and gay couples. Surely there is [a] constitutional injury when the majority imposes on the minority that which it would not accept for itself.’’
Finally, one need only note the invocation of Plessy’s “separate but equal” to realize why this decision was the correct decision:
Accordingly, we reject the trial court’s conclusion that marriage and civil unions are ‘‘separate’’ but ‘‘equal’’ legal entities; Kerrigan v. Commissioner of Public Health, supra, 49 Conn. Sup. 664; and that it therefore ‘‘would be the elevation of form over substance’’; id., 667; to conclude that the constitutional rights of same sex couples are implicated by a statutory scheme that restricts them to civil unions. Although marriage and civil unions do embody the same legal rights under our law, they are by no means ‘‘equal.’’
On to the reactions:
The Governor issued a statement saying that, essentially, she doesn’t like it, but doesn’t want a culture war, so she will deign it appropriate to uphold the law. As of the writing of this post, she has not threatened to ask the Attorney General to imprison any of the plaintiffs in the case or any of the Justices in the majority.
The story has also gotten a lot of play on blawgs:
- Volokh (where some of the comments echo my question in this morning’s post – how prescient was I?)
- CT Local Politics
- CT News Junkie
- Capitol Watch
- Colin McEnroe
- A CT Law Blog
- The Blog of LegalTimes
- The Blogfather (Howard Bashman)
If you find more links, let me know and I’ll update.
Btw, how wrong was I?
It’s time to let the incomparable Freddie have the last word: