October 2008 Articles

   Hartford Courant Article   NY Times Article    Excerpts from the Majority Opinion  The Ruling (link to external pdf)   

 

State Supreme Court Legalizes Same-Sex Marriage

By DANIELA ALTIMARI  Published October 11, 2008  in the Hartford Courant
The state Supreme Court on Friday delivered gay and lesbian couples the validation they have long been seeking — the right to marry. In a 4-3 decision, the court ruled that same-sex couples cannot be prevented from marrying — and that civil unions, those marriage-like legal arrangements that Connecticut has offered to gay people since 2005, are not an acceptable substitute. "Interpreting our state constitutional provisions in accordance with firmly established equal protection principles leads inevitably to the conclusion that gay persons are entitled to marry the ... same-sex partner of their choice," Justice Richard Palmer wrote. "To decide otherwise would require us to apply one set of constitutional principles to gay persons and another to all others." The 85-page ruling means that thousands of gay couples soon will be able to marry in Connecticut, perhaps as early as next month. It also provides fresh fuel to opponents of same-sex marriage, who are pushing for a mechanism that would permit them to amend the state constitution to prohibit same-sex unions.

Connecticut will join Massachusetts and California as the only states to permit gay partners to wed. Meanwhile, high courts in New York and New Jersey have opted not to expand the legal rights of same-sex couples.

Friday's landmark decision was met with cheers and tears of joy from gay activists throughout the state and nation. Janet Peck held the hand of Carol Conklin, her partner of more than three decades, as they walked to the podium at an afternoon press conference at the Hilton Hartford hotel.

"For 33 years, my heart has ached for this moment," said Peck, 56. The Colchester couple, one of eight plaintiff couples in the case, chose not to get a civil union because they considered it inferior to marriage.

On Friday, Peck called Conklin "my soon-to-be spouse."

The ruling culminates a long march toward acceptance for gay and lesbian couples, a journey that has shifted from the halls of the state Capitol to the chambers of the state's highest court. Through the years, legislators held countless hearings, and political support kept building — but gay rights activists decided last year to wait until the courts had weighed in.

"For nine years, the Connecticut legislature and the Connecticut courts have been moving along a path where they have considered a whole host of decisions pertaining to same-sex couples," said Rep. Michael Lawlor, a Democrat from East Haven and outspoken supporter of same-sex marriage. "Both the courts and the legislature have evolved. ... This is a topic most people didn't even think about 15 years ago."

The majority opinion, written by Palmer and joined by Justices Flemming L. Norcott Jr. and Joette Katz, along with Appellate Judge Lubbie Harper (sitting for Chief Justice Chase T. Rogers, who recused herself), rejects the notion of a "separate but equal" system of civil unions.

"Although marriage and civil unions do embody the same legal rights under our law, they are by no means 'equal,'" Palmer wrote. "As we have explained, the former is an institution of transcendent historical, cultural and social significance, whereas the latter most surely is not."

In other words, "separate but equal is not OK," said Susan Schmeiser, professor of family and gender law at the University of Connecticut School of Law. "Nothing short of marriage is going to satisfy the equal protection concern."

The court's ruling significantly expands the judicial protections afforded to gays and lesbians, Schmeiser said. "The bulk of the opinion is devoted to establishing that gay men and lesbians warrant protected status under the Connecticut constitution ... based on the history of discrimination that gay men and lesbians have suffered."

In a statement released minutes after the decision was posted on the judicial branch website, Gov. M. Jodi Rell said that she disagreed with it but would uphold it. She said that she was proud to sign the state's civil unions law in 2005, the first in the nation enacted without a court mandate, and thought it was "equitable and just," but that she does not support same-sex marriage.

And yet, Rell added, "the Supreme Court has spoken. ... I do not believe their voice reflects the majority of the people of Connecticut. However, I am also firmly convinced that attempts to reverse this decision — either legislatively or by amending the state constitution — will not meet with success. I will therefore abide by the ruling."

Other opponents, however, are already ratcheting up their campaign to stop same-sex marriage. They are pushing for passage of a ballot question asking voters if the state should convene a constitutional convention. Their hope is to use the convention to allow the state constitution to be reworked to allow for something called "direct initiative," a mechanism that permits citizens to force a vote on matters of public policy, such as same-sex marriage.

"The court has just usurped democracy in Connecticut and redefined marriage by judicial force," said Peter Wolfgang, executive director of the Family Institute of Connecticut. Connecticut voters will have one opportunity on Nov. 4 to reassert their right to self-government, he said.

Dissenting opinions were written by now-retired Justice David Borden, who was acting chief justice when the case was heard in May 2007, Justice Christine Vertefeuille and Justice Peter Zarella.

Senior Justice William J. Sullivan, one of the more conservative members of the court, removed himself from the panel just days before the case was scheduled to be heard. He did not give a reason.

Borden said it was far too early to say that civil unions signify second-class status. "Our experience with civil unions is simply too new and the views of the people of our state about it as a social institution are too much in flux to say with any certitude that the marriage statute must be struck down in order to vindicate the plaintiffs' constitutional rights," he wrote.

In his dissenting opinion, Zarella invoked that traditional view of marriage. "The ancient definition of marriage as the union of one man and one woman has its basis in biology, not bigotry," he wrote. "The fact that same sex couples cannot engage in sexual conduct of a type that can result in the birth of a child is a critical difference in this context."

Most of the eight couples in the case, Kerrigan et al. v. Commissioner of Public Health et al., are parents — in fact, there are 14 children spread among them.

According to an analysis of a U.S. Census Bureau survey by the Williams Institute, about 30 percent of the 9,546 same-sex couples in Connecticut are raising children.

Gay Marriage Is Ruled Legal in Connecticut        


By ROBERT D. McFADDEN
Published: October 10, 2008  New York Times

A sharply divided Connecticut Supreme Court struck down the state’s civil union law on Friday and ruled that same-sex couples have a constitutional right to marry. Connecticut thus joins Massachusetts and California as the only states to have legalized gay marriages. Connecticut thus joins Massachusetts and California as the only states to have legalized gay marriages.

The ruling, which cannot be appealed and is to take effect on Oct. 28, held that a state law limiting marriage to heterosexual couples, and a civil union law intended to provide all the rights and privileges of marriage to same-sex couples, violated the constitutional guarantees of equal protection under the law.

Striking at the heart of discriminatory traditions in America, the court — in language that often rose above the legal landscape into realms of social justice for a new century — recalled that laws in the not-so-distant past barred interracial marriages, excluded women from occupations and official duties, and relegated blacks to separate but supposedly equal public facilities.

“Like these once prevalent views, our conventional understanding of marriage must yield to a more contemporary appreciation of the rights entitled to constitutional protection,” Justice Richard N. Palmer wrote for the majority in a 4-to-3 decision that explored the nature of homosexual identity, the history of societal views toward homosexuality and the limits of gay political power compared with that of blacks and women.

“Interpreting our state constitutional provisions in accordance with firmly established equal protection principles leads inevitably to the conclusion that gay persons are entitled to marry the otherwise qualified same-sex partner of their choice,” Justice Palmer declared. “To decide otherwise would require us to apply one set of constitutional principles to gay persons and another to all others.”

The ruling was groundbreaking in various respects. In addition to establishing Connecticut as the third state to sanction same-sex marriage, it was the first state high court ruling to hold that civil union statutes specifically violated the equal protection clause of a state constitution. The Massachusetts high court held in 2004 that same-sex marriages were legal, while California’s court decision in May related to domestic partnerships and not the more broadly defined civil unions.

The Connecticut decision, which elicited strong dissenting opinions from three justices, also opened the door to marriage a bit wider for gay couples in New York, where state laws do not provide for same-sex marriages or civil unions, although Gov. David A. Paterson recently issued an executive order requiring government agencies to recognize same-sex marriages performed in other states.

The opinion in Connecticut was hailed by jubilant gay couples and their advocates as a fulfillment of years of hopes and dreams. Hugs, kisses and cheers greeted eight same-sex couples as they entered the ballroom at the Hartford Hilton, where four years ago they had announced they would file a lawsuit seeking marriage licenses.

One of those couples, Joanne Mock, 53, and her partner, Elizabeth Kerrigan, 52, stood with their twin 6-year-old sons, choking back tears of joy and gratitude. Another plaintiff, Garret Stack, 59, introduced his partner, John Anderson, 63, and said: “For 28 years we have been engaged. We can now register at Home Depot and prepare for marriage.”

Religious and conservative groups called the ruling an outrage but not unexpected, and spoke of steps to enact a constitutional ban on gay marriage. Peter Wolfgang, executive director of the Family Institute of Connecticut, blamed “robed masters” and “philosopher kings” on the court. “This is about our right to govern ourselves,” he said. “It is bigger than gay marriage.”

But the state, a principal defendant in the lawsuit, appeared to be resigned to the outcome.

Gov. M. Jodi Rell said that she disagreed with the decision, but would uphold it. “The Supreme Court has spoken,” she said. “I do not believe their voice reflects the majority of the people of Connecticut. However, I am also firmly convinced that attempts to reverse this decision, either legislatively or by amending the state Constitution, will not meet with success.”

Attorney General Richard Blumenthal said his office was reviewing the decision to determine whether laws and procedures will have to be revised — local officials will issue marriage licenses to gay couples without question, for example — but he offered no challenge and said it would soon be implemented.

Excerpts  from the Supreme Court Majority Opinion         [Read the entire ruling]

ELIZABETH KERRIGAN ET AL. v. COMMISSIONER OF PUBLIC HEALTH ET AL. (SC 17716)
Argued May 14, 2007—officially released October 28, 2008

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.  (p.4)

We agree with the plaintiffs that, despite the legislature’s recent establishment of civil unions, the restriction of marriage to opposite sex couples implicates the constitutional rights of gay persons who wish to marry a person of the same sex. (p.8)

 [W]e cannot discount the plaintiffs’ assertion that the legislature, in establishing a statutory scheme consigning same sex couples to civil unions, has relegated them to an inferior status, in essence, declaring them to be unworthy of the institution of marriage. (p.9)

Although marriage and civil unions do embody the same legal rights under our law, they are by no means ‘‘equal.’’ As we have explained, the former is an institution of transcendent historical, cultural and social significance, whereas the latter most surely is not. (p.10)

Despite the truly laudable effort of the legislature in equalizing the legal rights afforded same sex and opposite sex couples, there is no doubt that civil unions enjoy a lesser status in our society than marriage." (p.11)

[G]ranting same sex couples the right to marry 'will not alter the substantive nature of the legal institution of marriage; same-sex couples who choose to enter into the relationship with that designation will be subject to the same duties and obligations to each other, to their children, and to third parties that the law currently imposes [on] opposite-sex couples who marry.’ Nor will same sex marriage deprive opposite sex couples of any rights. In other words, limiting marriage to opposite sex couples is not necessary to preserve the rights that those couples now enjoy.... Although it is true that authorizing same sex couples to marry represents a departure from the way marriage historically has been defined, the change would expand the right to marry without any adverse effect on those already free to exercise the right.  (p.58)

Religious freedom will not be jeopardized by the marriage of same sex couples because religious organizations that oppose same sex marriage as irreconcilable with their beliefs will not be required to perform same sex marriages or otherwise to condone same sex marriage or relations. Because, however, marriage is a state sanctioned and state regulated institution, religious objections to same sex marriage cannot play a role in our determination of whether constitutional principles of equal protection mandate same sex marriage. (p.59)

Interpreting our state constitutional provisions in accordance with firmly established equal protection principles 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. (p.66)