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In a very, very interesting move, N.Y. Governor David Paterson has directed state agencies to revise their regulations to recognize same-sex marriages performed in other jurisdictions.

This will make NY the first (and only?) state to have no legislation permitting same-sex marriages, but policies recognizing those marriages from other states.

The revisions are most likely to involve as many as 1,300 statutes and regulations in New York governing everything from joint filing of income tax returns to transferring fishing licenses between spouses.

In a videotaped message given to gay community leaders at a dinner on May 17, Mr. Paterson described the move as “a strong step toward marriage equality.” And people on both sides of the issue said it moved the state closer to fully legalizing same-sex unions in this state.

This is an novel idea and I have to commend Gov. Paterson for trying. It doesn’t seem as though the state legislature will legalize same-sex marriage anytime soon, so this, at least, affords same-sex couples the same protections that married heterosexual couples receive.

The directive cited a Feb. 1 ruling by a State Appellate Court in Rochester that Patricia Martinez, who works at Monroe Community College and who married her partner in Canada, could not be denied health benefits by the college because of New York’s longstanding policy of recognizing marriages performed elsewhere, even if they are not explicitly allowed under New York law. The appeals court said that New York must recognize marriages performed in other states that allow the practice and in countries that permit it, like Canada and Spain.

“He saw no reason to stand in the way of making sure these couples benefit from the rights and protections that come with marriage,” said Susan Sommer, senior counsel for Lambda Legal, a group that advocates for gay rights. “It shouldn’t be the burden of each lesbian or gay couple to have to advocate before an agency every time a new issue comes up.”

I agree. While the legislature sorts itself out, the citizens should not be at a disadvantage. Good for him.

Yesterday, California’s Supreme Court issued an historic 4-3 ruling [pdf] overturning that State’s statutory ban on gay marriages. Glenn Greenwald at Salon has a terrific analysis of the ruling here. It is critical to note that this argument was made pursuant to the California Constitution, not the U.S. Constitution.

As noted in a footnote in that decision, the Connecticut Supreme Court is considering an identical issue in Kerrigan v. Comm’r of Public Health. That case was argued before the Justices one year and two days ago. Re-reading my posts on the oral argument, it seems to me that the most likely outcome is that the Court will punt the case back to the legislature. The days of the CT Supreme Court being on the forefront of progressive jurisprudence seem to be long gone.

While the year and two day delay seems lengthy (compare that to CA, where they issued their opinion in two months), it is not the longest delay I’ve seen from the Court. Further, with May being the last term of the Court, it is very likely that if we do not get a decision from them by the end of July, we won’t see one till September or October.

Anyway, this decision by the CA Court is truly a landmark decision, making California only one of two States in the country to recognize same-sex marriages (MA being the other). It is a good day for equality when a Court sees the “civil union” argument as nothing but more of the “separate but equal” travesty.

The title of this post is flippant, but the case it refers to is rather interesting. In State v. John F.M., the Supreme Court reversed the Appellate Court’s reversal of a conviction. John F. M. was convicted of sexual assault in the third degree under the sex with a kindred person subsection. It provides in relevant part:

(a) A person is guilty of sexual assault in the third degree when such person (2) engages in sexual intercourse with another person whom the actor knows to be related to him or her within any of the degrees of kindred specified in section 46b-21.

46b-21 provides:

No man may marry his mother, grandmother, daughter, granddaughter, sister, aunt, niece, stepmother or stepdaughter, and no woman may marry her father, grandfather, son, grandson, brother, uncle, nephew, stepfather or stepson. Any marriage within these degrees is void.

So you can’t have sex with any of those people either.  John F.M. first raised a sufficiency challenge - that based on the defendant’s testimony, the jury could not conclude that there did, indeed, exist such a relationship (the girl in question was the defendant’s step-daughter) and that the sex assault statute violates the equal protection clause because it prohibits only heterosexual conduct.

The defendant relied, in his first claim, on an 1827 decision of the CT Supreme Court - State v. Roswell, which held that the relationship between the two must be proven by the state other than by the testimony of the defendant. The Court engages in an analysis and discussion of Connecticut caselaw from 1827 onwards that erodes Roswell and overrules it.

Indeed, since Schweitzer was decided, this court repeatedly has reaffirmed the principle that, “cohabitation as husband and wife is [admissible] evidence, and often sufficient evidence, that the parties have been validly married, but does not in itself constitute a marriage.”

The Court also recaps the law on admission of a party:

[S]tatements made out of court by a party-opponent are universally deemed admissible when offered against him . . . so long as they are relevant and material to issues in the case. . . . [T]he vast weight of authority, judicial, legislative, and scholarly, supports the admissibility without restriction of any statement of a party offered against that party at trial.

The Court also found that the Appellate Court improperly extended the (overruled) Roswell rule of marital relationships to evidence of parentage.

The Court then turns to the equal protection argument. This, too, it resolves in favor of the state, but in my opinion, their argument is strained and it seems like they are reaching. Result oriented is what these opinions are called.

The claim was that the sex assault statute, which prohibits intercourse between people related in the manner defined in 46b-21, violates equal protection, because the “degrees of kinship” are defined in heterosexual terms.

The Court engages in some statutory construction:

To resolve the state’s claim, we must determine whether the phrase ‘‘degrees of kindred’’ in § 53a-72a (a) (2) incorporates by reference the precise male-female unions enumerated in § 46b-21.

For some reason, it looks at what “degrees” and “kindred” mean and determine that:

Accordingly, § 53a-72a (a) (2) plainly does not incorporate the precise male-female unions enumerated in § 46b-21 but, rather, incorporates only the proximity of relation specified therein, namely, parent-child, grandparent-grandchild, sibling-sibling, aunt/uncle-niece/nephew and stepparent-stepchild. Because § 53a-72a (a) (2) applies equally to both same sex and opposite sex sexual intercourse between individuals who are related within the degrees of kinship specified in § 46b-21, it does not create the allegedly unconstitutional classification and, therefore, does not violate the equal protection clause of the federal constitution.

It does seem absurd that the Statute would prohibit heterosexual relationships and not same-sex relationships, but that statute was likely written before same-sex relationships were much accepted as they are today. To that extent, is it the Court’s job to rewrite the intent of the statute as it is written? The legislature surely could have amended the statute at any point in the past so many years - especially since civil unions have been on their mind - and they did not.

Anyway, it’s interesting.  It takes a statute that is pretty darn specific and broadens its application. I think I got most of it. If I missed something, feel free to leave a comment, Marty.

There’s actually a reversal in the Appellate Court (amongst some affirmances), but I think this post has gone on long enough, so I’ll leave you with a quote. At least there isn’t much chance it will get reversed.

Because the state concedes, however, and we agree, that the defendant’s conviction of criminal mischief in the first degree cannot be reconciled with his conviction of arson in the third degree because the conviction of each crime depends on proof of irreconcilably inconsistent states of mind, the judgment must be reversed as to those crimes and the case remanded for a new trial.

The Office of Legislative Research publishes interesting reports every month. This one, published in May, was about the following:

You asked for statistics on the number of civil unions performed in Connecticut by town.

The table below displays information provided by the Department of Public Health showing the number of civil unions by town, from October 1, 2005, when the law authorizing civil unions took effect, through the end of March 2007.

The long and short of it is that there are several towns where there hasn’t been a single one (Barkhamstead, Deep River, Franklin, Hartland, Harwinton, Ledyard, North Canaan, Scotland, Sherman, Sprague, Union and West Haven) and the leaders are the major cities and towns (Hartford, Bristol, New Haven, Danbury, Enfield, Groton, Greenwich, Guilford, Hamden, Manchester, Stamford, West Hartford, Branford and Bridgeport).

In all, there were 649 unions in 2005, 722 in 2006 and 78 this year, for a total of 1449.

Update: Well, I spoke too soon. Apart from the CTNewsJunkie post, GLAD liveblogged the argument and CTLocalPolitics has commentary in the comments here.

Original: So, now that the oral argument has been conducted, what mattered to the justices? I had the oral argument playing in the background while I worked today, so I wasn’t paying rapt attention. I did get a general gist of what went on, though.

Justice Borden was very concerned about the civil union bill and how integral it was to plaintiff’s argument. He wondered if the Court were to find that the bill is a violation of the EP clause and the legislature repealed the bill the very next day, would plaintiffs lose? Plaintiff’s counsel argued that the bill only underscored their argument and was their argument was not dependent on it. I’m not sure Justice Borden was convinced.

Judge Harper asked whether there was a right to same-sex marriage as opposed to just marriage. One of the justices said that the plaintiffs were free to marry whomever they wanted (as long as they were of the opposite sex). I think this is essentially the argument. It will turn on whether the judges feel that gays and lesbians are a “suspect class” deserving of greater scrutiny.

From the Courant:

If the justices determined that gay and lesbian couples fell into this status, they would more intensively scrutinize the state’s motives in distinguishing between civil unions and marriage, and whether those objectives were both rational, and narrowly tailored. It was this type of analysis that formed the underpinnings of the 2003 Massachusetts Supreme Court ruling that afforded same-sex couples the right to marry.

Plaintiff’s counsel made a very strong point:

Klein replied that the fundamental principles of marriage are not based on gender.”It is really a relationship of two legal equals based on mutual consent by which they take responsibility for each other, and that relationship is protected by the state,” he said.

Also, Lawrence was invoked a lot.

Plaintiff’s opening brief is here and the Reply brief is here [both pdf]

As of this point, I have no idea what the outcome will be. If I were to guess, I’d guess that the Court would deny the appeal, but strongly suggest that the legislature make it happen.

I was going to link to other CT blogs that might have more info, but only one has a post about this so far.

Previous coverage:

• Gay marriage oral argument today

Technorati Tags: connecticut, gay marriage, same sex marriages

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!

Technorati Tags: connecticut, same sex marriages, gay marriage

With the new legislature now in session (and the super-majority held by the Democrats), the co-chairs of the Judiciary Committee have indicated that same-sex marriage legislation will be on the agenda this session.

The two Democratic leaders of the General Assembly’s judiciary
committee say they intend to introduce a bill legalizing gay marriage,
even though Gov. M. Jodi Rell has said she would veto such a measure.

Same support and opposition protests to follow. Stay tuned.

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Attorney General Blumenthal announced yesterday [formal opinion here] that Connecticut would give full faith and credit to civil unions entered into in other states. The question posed to AG Blumenthal was:

whether Connecticut courts will recognize out-of-state civil unions, same-sex marriages and same-sex domestic partnerships after Connecticut’s Act Concerning Civil Unions, 2005 Conn. Pub. Act No. 05-10 (the "Act" or "P.A. 05-10"), takes effect on October 1, 2005. In particular, [ ] whether, after October 1st, a couple that has entered into a civil union, same-sex marriage, or domestic partnership out-of-state may legally enter into a civil union in Connecticut with the same partner.

Since CT recently passed a civil unions bill, recognizing out-of-state civil unions fits with public policy and therefore will be recognized. The AG concluded as follows:

• The Connecticut General Assembly in Public Act No. 05-10 specifically approved civil unions for same-sex couples. Since this law expressly articulates our State’s public policy, civil unions performed under the laws of other States are valid in Connecticut under the Full Faith and Credit Clause of the United States Constitution.
• At present, our courts will conclude that Connecticut law and the Full Faith and Credit Clause of the United States Constitution require Connecticut to recognize Vermont civil unions and California same-sex domestic partnerships. Other out-of-state, legally authorized same-sex domestic partnerships may be recognized as civil unions in Connecticut depending on how specific provisions of other States’ laws compare to ours.
• Same-sex couples whose civil unions and domestic partnerships are performed in other States and recognized in Connecticut already have a valid civil union in Connecticut that need not and cannot be repeated in Connecticut.
• The Connecticut General Assembly has specifically determined that same-sex marriages are contrary to Connecticut law. Because the legislature has determined that marriages in Connecticut may only be between a man and a woman, same-sex marriages performed under laws of any other State violate Connecticut’s expressly articulated public policy and are not required by the Full Faith and Credit Clause of the United States Constitution to be recognized here.
• Because same-sex marriages performed under the laws of another State are not valid marriages or civil unions in Connecticut, same-sex couples married under the laws of another State are allowed by Connecticut law to obtain a Connecticut civil union.

So, civil unions - yes. Same-sex marriages - no, but can get civil unions. If my memory serves me correctly, a lawsuit has already been filed challenging the law defining marriage as between a man and a woman. As of now, however, AG Blumenthal has rendered, in my opinion, a pretty accurate reading of the law. Read the whole formal opinion to see a discussion of the FF&C clause in CT.

UPDATE: Well, no one can really be surprised. Gov. Schwarzenegger has announced that he will veto this bill to honor the voters who approved an initiative 5 years ago to keep marriages between women and men. I still don’t get what some people have against gay marriages. I just don’t.

Hello again. As you’ve noticed - blogging has been horrible on my part. I’ve been occupied with work and family. One story did catch my eye this morning, though. Updating an earlier report, Jurist and the NYTimes are now reporting that California’s Assembly has also narrowly passed a same-sex marriage bill. The bill now goes to Gov. Arnold S for his approval, although whether he will grant that is not yet clear.

Hello everyone! I’ve been extremely busy this week, which is why there hasn’t been any posting. I’m terribly sorry and I’m sure I’ve missed some interesting legal developments. I also received a decision in a case which went to trial 5 months ago, and unfortunately, as is the case with most Habeas claims, we lost.

On a slightly brighter note (want to know why it’s not all bright? Read this), California’s Senate passed a measure that would legalize same-sex marriages by a vote of 21-15. It will now  go to the Assembly, which has rejected similar measures in the past.

Gov. Arnold Schwarzenegger, who supports the state’s domestic-partner laws and has signed several related bills, has said he believes that legalization of same-sex marriage should come from either the voters or the courts. His administration points out that voters passed an initiative in 2000 that says that California recognizes marriages only between a man and a woman.

Backers of the measure suggested that the Senate vote would give them enough momentum to win in the Assembly, where proponents fell four votes short of getting the 41 votes needed for approval. The Assembly is expected to vote before the Legislature wraps up its business for the year next week.

A San Fransisco judge has already ruled that the Constitution mandates same-sex marriages, but it is being appealed. There’s much more in the news article than I have reproduced here, so please read it.

As most civil union opponents feared would happen, eight same-sex couples have filed suit in New Haven alleging equal protection violations. They plan to use the passage of the civil unions bill and the debate surrounding it to bolster their claim.

NYT reports that MA Gov. Romney will support a proposed amendment to the Constitution banning gay marriage. MA Courts have ruled that gay marriage should be permitted.

The new amendment, drafted by a coalition of conservative groups led
by the Massachusetts Family Institute, would generate some unusual
consequences. It would not, for example, require that same-sex
marriages that have already taken place be dissolved or invalidated.

Kris Mineau, president of the Massachusetts Family Institute, said his
group had decided not to require that because "the homosexual marriages
that occurred happened because of a flawed decision" made by judges,
and "it’s unfair to penalize those people for a bad decision made by
the courts."

Asked if it would be confusing if some same-sex
couples were legally married, while others would be barred from getting
married, Mr. Mineau said, "It will be for a season, but eventually it
will be a thing of the past, a brief social experiment that happened
because of court activism."

Which brings me to my point - can a Constitutional amendment be… well, unconstitutional? One can see how an amendment banning same-sex marriages could be held to be in violation of the equal protection clause of that very same Constitution. It seems, therefore, that any such amendment that is in contradiction with an existing amendment would be invalidated.

I’m not a Conn. Law expert, so I do think I’m missing something. Any comments, clarifications, explainers would help.

While CT celebrates becoming the first state to voluntarily legalize civil unions, TX is considering a bill that would "ban homsexuals and bisexuals from being foster parents".

"It is our responsibility to make sure that we protect our most vulnerable children and I don’t think we are doing that if we allow a foster parent that is homosexual or bisexual," said the author of the amendment added late Tuesday, Republican Rep. Robert Talton of Pasadena.

TXpublicdefender at Injustice Anyhwere has continuing coverage.

Seriously, how stupid is this? We tell gay people that they can’t have loving families because they "sodomize" each other and pay no regard to how they actually are as parents/people? It is my understanding that to become a foster parent, one must go through quite a scrutinizing process. So if two people clear those hurdles, are loving parents, aren’t arrested for child abuse and most importantly, provide an orphan a caring home, who the hell cares whether those people are of the same gender.

Would you rather leave those kids homeless? That’s what this legislation seems to say. Disgusting.

UPDATE: Ok, the more I read about this, the more infuriated I get - I probably shouldn’t blog anymore about this, but when have I known to follow the path of wisdom.

So, read this bit from the Dallas News:

The measure would ban people who declare themselves, or are later found to be, gay, lesbian or bisexual from serving as foster parents.
Supporters say children should not be raised in what they consider an immoral environment that could confuse a youth’s sexual identity. The sponsor, Rep. Robert Talton, R-Pasadena, called homosexuality "learned behavior."

There is SO MUCH wrong with that I just don’t know where to start. But let’s take the first sentence - "later found to be gay lesbian or bisexual". What is there going to be? An inquiry into every single foster home? Are they going to send decoys? So this measure basically affects those who are out. Think of the wasted resources in trying to find out which foster families are gay or lesbian or worse - bisexual! Ugh.

More:

CPS says it does not keep track of how many children are in gay, lesbian or bisexual foster homes. Susan McKay, who worked for the agency for 27 years before retiring in 2002, estimated that 10 percent to 15 percent of Texas foster parents are gay. The Austin-based Lesbian/Gay Rights
Lobby of Texas estimates 1,100 to 3,000 foster children are living with gay parents.

Excellent. So they are going to take somewhere between 1100 and 3000 (think about that - THREE THOUSAND) kids out of these homes and put them…. where? Oh, and you do know how these kids end up in foster homes in the first place right? Yep. That’s right. This is such an unnecessary diversion from the real issue - the care of the children. Let’s stop letting our stupid prejudices get in the way and cut through this bullshit and focus on what’s important.

In a major step forward for society (or backward, depending on how you see it), CT has become the first state to legalize civil unions by including provisions in it’s General Statutes. MA and VT also permit civil unions/same-sex marriages, but have done so only after being ordered by the judiciary. Gov. Rell has signed this historic bill and it is now part of the law of the state.

All my coverage of this issue is available here.

Now I’m off to the Death Penalty debate. I’ll have a post on it when I return.

The Civil Unions bill [bill text] has passed in the House by a vote of 85-63.

Update: WTNH has a full story on the passing of the bill. The bill passed with two amendments in the House:

1. It was amended to include a definition of marriage as between a man and a woman
2. It was restricted to those above the age of 18 - a restriction that doesn’t exist in the marriage statute.

The bill now goes back to the Senate for a vote, where it can either be passed and sent to Gov. Rell, or rejected or changed with new amendments, in which case it will be sent back to the House.