By Lisa Keen, keen news service
The Connecticut Supreme Court ruled Oct. 10 that gay couples in Connecticut must be able to obtain marriage licenses the same as straight couples.
The decision puts Connecticut on track to become the third state to guarantee equal protection in marriage licensing for same-sex couples—both legal and political victories for the LGBT community. And the political victory comes at a particularly critical time—less than four weeks away from ballot measures in three states on whether to amend state constitutions to ban same-sex marriage. And they come less than four weeks away from a rare Connecticut statewide vote on whether to hold a convention to consider amendments to its constitution.
'Given that we are less than a month away from national elections, the biggest question about this decision is what impact, if any, it will have politically,' wrote longtime gay legal activist Nan Hunter on her blog, Hunter for Justice.
The Connecticut vote on whether to hold a constitutional convention comes every 20 years and, by coincidence, was already on the ballot for this year and already being supported by anti-gay marriage activists.
If voters call for such a convention, the legislature could—with two-thirds majority of both houses—amend the state constitution to ban same-sex marriage. That amendment would then have to go back to voters for approval.
But both chambers are controlled by Democrats and Governor Rell said, in her statement, that she is 'firmly convinced that attempts to reverse this decision—either legislatively or by amending the state Constitution—will not meet with success.' The Connecticut legislature passed, and Gov. Rell signed, a civil unions law for the state in 2005.
Civil unions = 'segregation'
In very strong language, the Connecticut Supreme Court majority characterized civil unions as a form of 'segregation' and says they do 'cognizable harm.' It said the disparate treatment of gay and straight couples violates the state law against sexual orientation discrimination and that the courts should scrutinize such discrimination as carefully they do gender discrimination.
This latter statement is seen as especially significant, legally speaking, because it says the Connecticut courts should view sexual orientation as a 'quasi-suspect classification.' Such a classification requires that laws treating people differently based on sexual orientation must have more than just a rational reason, though it stops short of requiring a more difficult, compelling reason.
The California Supreme Court, in its landmark decision in May, said laws banning gay marriage discriminate against gay people as a suspect class and impinge on their fundamental right to have 'their family relationship accorded the same respect and dignity enjoyed by an opposite-sex couple.' The California court then concluded that the state's rationale for treating gays different—to retain a traditional and well-established definition of marriage— cannot be seen as either compelling or necessary.
Connecticut's case was argued May 14, 2007, but conspicuously absent from that panel was and this decision was the court's new chief justice, Chase T. Rogers. Rogers recused herself because members of her husband's law firm, Robinson & Cole, authored a friend-of-the-court brief for the Lambda Legal Defense and Education Fund. Lambda is a national organization that supports gay marriage and has been involved in lawsuits in six states where same-sex couples sought the right to marry.
The Connecticut decision was a 4-3 vote, with the three dissenting justices each submitting his or her own brief.
The majority decision, penned by Justice Richard Palmer, an appointee of former Governor Lowell Weicker, concluded that 'our conventional understanding of marriage must yield to a more contemporary appreciation of the rights entitled to constitutional protection.'
'Interpreting our state constitutional provisions in accordance with firmly established equal protection principles,' wrote Palmer, 'leads inevitably to the conclusion that gay persons are entitled to marry the otherwise qualified same-sex partner of their choice. To decide otherwise would require us to apply one set of constitutional principles to gay persons and another to all others. The guarantee of equal protection under the law, and our obligation to uphold that command, forbids us from doing so. In accordance with these state constitutional requirements, same sex couples cannot be denied the freedom to marry.'
Palmer was joined in the decision by three other Republican appointees.
Two of the three dissenting justices were Republican appointees. Justice David Borden, the lone Democratic appointee on the court, disagreed with the majority's conclusion that laws based on sexual orientation are a quasi-suspect class, deserving of the same level of scrutiny as laws based on sex. Justice Peter Zarella said the majority failed to appreciate the original purpose of marriage laws, which he said is procreation. As such, he said, those laws do not discriminate based on sexual orientation and 'persons who wish to enter into a same sex marriage are not similarly situated to persons who wish to enter into a traditional marriage.'
Republican Governor Jodi Rell issued a statement shortly after the decision was released, saying that, 'I disagree' with the majority decision, 'but as governor, I will uphold it.'
Gay & Lesbian Advocates & Defenders, a Boston-based gay litigation group, filed the lawsuit, Kerrigan v. Connecticut, on behalf of Elizabeth Kerrigan and her partner Joanne Mock, and seven other same-sex couples. The couples attempted to obtain marriage licenses in Connecticut just after the Massachusetts marriage decision went into effect in 2004 but were refused.
Bennett Klein, an attorney for New England's Gay & Lesbian Advocates & Defenders, which led the Massachusetts case, Goodridge, said the California and Connecticut cases were 'identical.'
'They are the only two states in which marriage litigation took place in the context of a state system that paralleled marriage,' said Klein. In California, it was domestic partnership; in Connecticut, it is civil unions. When he argued the Kerrigan case, the justices 'keyed in on' the significance of this parallel system, said Klein. 'And there was a lot of discussion about heightened scrutiny for sexual orientation discrimination, and about the inadequacy of calling the relationships for same-sex couples by a different name.'
On the Hartford Courant Web site, video is posted showing the lead plaintiffs finding out the news about the decision and asking each other, 'Will you marry me?' See www.courant.com/news/politics/hcu-gaymarriage-1010,0,7812756.story?page=2.
Now, the remaining same-sex marriage case pending before a state supreme court is in Iowa.
©2008 Keen News Service
