Friday, October 10, 2008

Connecticut Allows Same-Sex Marriage

Today, the Connecticut Supreme Court issued its opinion in Kerrigan v. Commissioner of Public Health ruling that same-sex couples have the right to marry. The case began in 2004 with the filing of a complaint by same-sex couples claiming that their constitutional rights to equal protection and due process were violated when they were denied marriage licenses. In April 2005, the Connecticut General Assembly enacted Public Act 05-10 to allow same-sex couples to obtain civil union licenses. Section 14 of that law reads:

Parties to a civil union shall have all the same benefits, protections and responsibilities under law, whether derived from the general statutes, administrative regulations or court rules, policy, common law or any other source of civil law, as are granted to spouses in a marriage, which is defined as the union of one man and one woman.
The plaintiffs filed a motion for summary judgment and its supporting memorandum on the merits of the case. The Attorney General, in opposition, filed a reply brief and sought summary judgment on behalf of the State. On June 12, 2006, Judge Pittman denied the plaintiff’s motion, in an opinion ruling that the exclusion of same-sex couples from marriage did not violate the Connecticut Constitution.

The Supreme Court reversed the trial court agreeing with the plaintiffs that the state's marriage law discriminates against them because it applies only to heterosexual couples, therefore denying gay couples the financial, social and emotional benefits of marriage.

The trial court rendered summary judgment in favor of the defendant state and local officials upon determining that, because this state’s statutes afford same sex couples the right to enter into a civil union, which affords them the same legal rights as marriage, the plaintiffs had not established a constitutionally cognizable harm. We conclude that, in light of the history of pernicious discrimination faced by gay men and lesbians, and because the institution of marriage carries with it a status and significance that the newly created classification of civil unions does not embody, the segregation of heterosexual and homosexual couples into separate institutions constitutes a cognizable harm. We also conclude that (1) our state scheme discriminates on the basis of sexual orientation, (2) for the same reasons that classifications predicated on gender are considered quasi-suspect for purposes of the equal protection provisions of the United States constitution, sexual orientation constitutes a quasi-suspect classification for purposes of the equal protection provisions of the state constitution, and, therefore, our statutes discriminating against gay persons are subject to heightened or intermediate judicial scrutiny, and (3) the state has failed to provide sufficient justification for excluding same sex couples from the institution of marriage. In light of our determination that the state’s disparate treatment of same sex couples is constitutionally deficient under an intermediate level of scrutiny, we do not reach the plaintiffs’ claims implicating a stricter standard of review, namely, that sexual orientation is a suspect classification, and that the state’s bar against same sex marriage infringes on a fundamental right in violation of due process and discriminates on the basis of sex in violation of equal protection. In accordance with our conclusion that the statutory scheme impermissibly discriminates against gay persons on account of their sexual orientation, we reverse the trial court’s judgment and remand the case with direction to grant the plaintiffs’ motion for summary judgment.
The decision makes Connecticut the third state where the highest court has ruled to legalize same-sex marriage, following the Supreme Courts of Massachusetts (Goodridge v. Dept. of Public Health) and California (In re Marriage Cases). The constitutionality of prohibiting marriage to same-sex partners has come before the Court of Appeals in New York (Hernandez v. Robles) and the New Jersey Supreme Court (Lewis v. Harris) but those courts decided to defer to their respective state legislatures.

This November, voters in several states will cast their ballots on the issue of same-sex marriage. California voters will decide on Proposition 8 which changes the California Constitution to eliminate the right of same-sex couples to marry in California. Arizona will vote on Propostion 102 which will "amend the Arizona Constitution to provide that only a union of one man and one woman shall be valid or recognized as a marriage". Florida has Amendment No. 2 on its ballot. The Florida Marriage Protection Amendment states "Inasmuch as marriage is the legal union of only one man and one woman as husband and wife, no other legal union that is treated as marriage or the substantial equivalent thereof shall be valid or recognized."

For more reading, see Same-Sex Marriage and the Constitution: We All Deserve the Freedom to Marry by Evan Gerstmann (Call # KF539 .G47 2008) in the BLS collection. Chapters include: Reason and prejudice: is the heterosexual monopoly on marriage rational? -- Looking for stricter scrutiny: sexism, heterosexism, and class-based equal protection -- The fundamental right to marry -- Same-sex marriage and the fundamental right to marry -- Should courts create new rights?

See also, Beyond Straight and Gay Marriage: Valuing All Families under the Law by Nancy D. Polikoff (Call # 38 .P65 2008) which has chapters: The changing meaning of marriage -- Gay rights and the conservative backlash -- Redefining family -- The right and the marriage movement -- LGBT families and the marriage-equality movement -- Countries where marriage matters less -- Valuing all families -- Domestic partner benefits for all families -- Coping with illness : medical care and family and medical leave

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