Justice of the Peace Associations
Newsletter


Summer  2004 Documentation
Table of Contents
Resignation Letter from Linda Gray Kelley
In Defense of Gay Marriage
Marrying Gays: A JP's Personal Experience
Letter from Attorney General Richard Blumenthal
                  Statutory Analysis
                  Constitutional Questions
                  Conclusion
Letter from AG Blumenthal to Gov. Mitt Romney

Resignation Letter from Linda Gray Kelley to Attorney Daniel Winslow, Chief Legal Counsel to Governor Romney, April 27, 2004

It is with my deepest regrets that I must submit my resignation as Justice of the Peace for the Commonwealth. You made it crystal clear Sunday at the JP conference that we are to follow the law, without waffling and avoidance of couples seeking same-sex marriages. In good conscience, I cannot agree to follow that directive. I am bound by the laws of God and the Catholic church.  

It pains me for several reasons. Many of my dearest friends over the years have been homosexual. They may never understand. I have felt torn over this, but must be accountable to my own conscience, God, and church. 

It also has forced me to quit a job I love; one that I excel at; one that took some doing in obtaining. I have contacted all my couples and have returned their deposits. They are not pleased that I am breaking my contract with them, but understand that I must take a stand...I must make a stand for my beliefs. This saddens me more than you can ever know. 

I forgive the judicial branch, who started the ball rolling, and all the legislators that continue to make this happen. I ask God’s forgiveness for the bitterness in my heart towards these people who have caused me to quit this office. I harbor no ill-will toward any homosexual group. We are all God’s children. I hereby request that in two years…If the situation should reverse, that you would again consider me as a Justice of the Peace for the Commonwealth, knowing that I have and always will, perform it with integrity.
 
Sincerely, 
Linda Gray Kelley
Charlton, Mass.

In Defense of Gay Marriage. The issue of gay marriage is a challenging one because most of us have never given it any thought before this.  It has not been a part of our consciousness.  All of a sudden we're in the throws of a debate that is packed with emotion, a significant amount of illogic and we're wondering what we're supposed to do. Some feel it is wrong, period.  Some feel it compromises their beliefs.  Some feel it violates marriage. Some are comfortable with it.

I cannot address everyone's fears, anger, or opinions.  But I would like to make a few observations.

For Roman Catholics who say they cannot go against their religion or the Church I remind us that we perform civil marriages, WHICH THE CHURCH DOES NOT RECOGNIZE.  You hear it all of the time, "They were married outside  the Church".  "They just had a civil marriage, not a church wedding."  And you know that the Church does not esteem those marriages very highly at all. Yet, we have all been performing marriages in a manner not recognized or approved by the Church.  We've been doing it since we took the oath at the onset of our commissions.  How is what is before us any different with
respect to the Church' stance? We haven't let it interfere with the civil marriages we have been performing for years. 

As for the often quoted reason for not recognizing gay marriage: "It threatens heterosexual marriage.", well, there is absolutely no logic in that statement.  To all the married couples out there, do you really believe that?  Do you really believe your own marriage is going to weaken, be threatened, fall apart if gay couples marry?  Has it been weakened, threatened or begun to fall apart during all these years that gay couples have been living together?  Raising children?  Contributing to the community?  Being elected to Town Meeting, City Council, State Legislature, Congress?  I cannot believe that we have been effected in the least.

As for the "children" part of the argument!  Are we going to require  every childless couple to produce a document from their physicians stating that they are not able to have children? And, if that is the case, are going to require them to adopt?  If marriage is about children (and of course it is, but not exclusively) then we will have to be able to address the absence of children in many marriages. You see how ludicrous that would be?  Heterosexual couples choose on a regular basis for their own personal reasons not to bear children nor to adopt them.  We have never questioned the validity of those marriages.

And of course we know of the appeal to the Bible.  Well, we don't follow the Bible today in many, many ways.  We have laws that forbid slavery even though the Bible sanctioned it and even instructed slaves to "love" their masters.  We don't observe the year of Jubilee during which all debts are forgiven; we don't really tithe, which the Bible promotes, nor do we really keep Sunday as a holy day, not really.  We don't offer sacrifice as the Bible instructs, we don't practice an eye-for-an-eye justice and so on and so forth.
It has been interpreted by Scripture scholars that when St. Paul admonishes married men not to have relations with a man that he is talking about fidelity in marriage not about homosexuality. And the divorce rate cannot be blamed on homosexuals, can it? But whatever the case, the point is that we have evolved in so many ways beyond what the human community understood about who we are, how we are to behave, what God expects of us....and we are still learning.

Each of us needs to examine the reasons we take the position we do against gay marriage and be really honest in our conclusions. I think the big stumbling block is the sexual dimension.  I really believe that is what gets people hung up.  Yet, I am equally certain that though the sexual dimension is part and parcel of every heterosexual marriage, we do not reduce heterosexual marriage to the sexual dimension.  We understand it broadly, we understand the partnership aspect of it, we understand the friendship part of it, we understand the companionship part of it.....we do not reduce it to the sexual part of it.  Yet that is precisely what we do with homosexual marriage.....we do not consider any other element of marriage except the physical intimacy.  And that is unfortunate, I believe.

I believe that if we are going to refuse to solemnize the marriages of gay couples that we should not solemnize any marriages, period. I don't believe we have the right to interpret the law as we see fit.  I
respect each persons conclusion about gay marriage but I do not approve of selective application of the law.

Thank you for the opportunity to offer my opinion about this very important issue in our society.

Rosaria Salerno 
Past President and Board Member of MJPA

Marrying Gays: A JP's Personal Experience
I have had the wonderful privilege of solemnizing numerous same sex marriages. I have been deeply moved by the couples.  They have been together for decades already when they come to be married and, even so....or maybe because of the "delay" they've experienced, they are totally taken up in the moment.  There are copious tears in some cases.  They are so very appreciative of this new possibility for them.  Most of the couples I have married have been together for anywhere from 30 to 10 or 7 years.  Only once have I had a couple together for 4yrs, 3yrs and 1yr.  All the others have been together for  long faithful relationships.  They really are grateful for the welcome they find when they come here to be married.  I guess there is some skepticism (well founded, I'd say) on their part and they are pleasantly surprised to have that dissipate because of the environment in my office.

When the Supreme Judicial Court ruled that Massachusetts would be solemnizing same sex marriages I quickly took a look at my ceremony text. I would have to make changes.  What a wonderful surprise it was as I read the ceremony with a gay couple in mind.....not one word of the text had to be changed (other than bride/groom that is). It is so crystal clear to me from that observation that marriage is about love not gender.  To the extent that it has been about gender that has been our doing.  There is nothing inherent in marriage or love that is about gender.  To limit love as we have been doing, to limit marriage as we have been doing shows the extent of our own limitations.  I am so happy we are breaking through those limitations.  Society will be the better for this, I have no doubt.                                 

   Rosaria Salerno

Letter from Attorney General Richard Blumenthal to Diane Goss Farrell, Westport First Selectwoman, and Kenneth M. McKeever, Esq. Lyme Town Attorney, dated May 17, 2004

Dear First Selectwoman Farrell and Attorney McKeever:
I write in response to your letters, which request my interpretation of Connecticut's General Statutes as they pertain to the legality of same sex marriages in our state. Specifically, you wish to know whether local officials may issue marriage licenses to, or perform marriage ceremonies for, same sex couples.

The question of whether the law permits -- or should permit -- same sex couples to marry is under debate and discussion in communities, legislatures and courts throughout our nation. On this issue, learned and well-intentioned people differ passionately. But public officials, like ourselves, must apply the law irrespective of our own personal views, unswayed by the policy arguments – however persuasive – on each side of the debate. Ultimately, the role and the responsibility of the General Assembly is to enact laws that reflect the State's public policies. Our duty is to interpret and apply these laws, as we are sworn to do.

I have concluded that the Connecticut Legislature has not authorized the issuance of a Connecticut marriage license to a same sex couple, or the performance of a marriage ceremony for a same sex couple, in Connecticut. I can reach no conclusion on whether a Connecticut court would hold that limiting the status of “marriage” to opposite sex couples violates constitutional standards. Ultimately, the courts will have the final say in interpreting our laws, and more particularly in determining whether those laws conform to constitutional principles. Unless and until such time as they are declared unconstitutional, however, our marriage statutes enjoy a presumption of constitutionality.

I. STATUTORY ANALYSIS

First, I note that Chapter 815e of our general statutes -- devoted to and entitled "Marriage" -- does not specifically define the term "marriage." That is to say, there is no specific provision in our marriage statutes that defines the term as strictly between a man and a woman, or that prohibits a man from marrying a man, or a woman from marrying a woman.

However, the very first provision of our general statutes instructs us that "words and phrases shall be construed according to the commonly approved usage of the language . . . ." Conn. Gen. Stat. § 1-1(a). Our marriage statutes refer repeatedly to a "bride" and a "groom"; Conn. Gen. Stat. § 46b-25; as well as to a "husband" and a "wife." Conn. Gen. Stat. § 46b-36 & -37. These terms are commonly understood to refer to a "man" and a "woman," and not to two members of the same sex. See Baker v. Nelson, 191 N.W.2d 185, 186 (Minn. 1971).1

With this scant legislative guidance, the Attorney General's Office therefore concluded in an opinion to Commissioner Douglas Lloyd, dated June 17, 1980, that the General Assembly did not intend for a "marriage" relationship to exist between other than one man and one woman. 1980 Conn. Op. Atty. Gen. June 17, 1980. Actions by our General Assembly and our courts since the issuance of that opinion over two decades ago have only reinforced this conclusion, and have done nothing to undercut it. In fact, several recently enacted statutes state explicitly that Connecticut does not authorize marriage between members of the same sex.

Specifically, in 1991, when passing laws prohibiting discrimination based upon an individual's sexual orientation, the General Assembly stated:

Nothing in sections 4a-60a, 45a-726a, 46a-51, 46a-54, 46a-56, 46a-63, 46a-64b, 46a-65, 46a-67, 46a-68b, and 46a-81a to 46a-81q, inclusive, subsection (d) of section 46a-82, subsection (a) of section 46a-83, and sections 46a-86, 46a-89, 46a-90a, 46a-98, 46a-98a and 46a-99 [all statutes that involve human rights and opportunities] shall be deemed or construed . . . (4) to authorize the recognition of or the right of marriage between persons of the same sex.

Conn. Gen. Stat. § 46a-81r. This provision, contained in a piece of legislation entitled "An Act Concerning Discrimination On The Basis Of Sexual Orientation," is found in Chapter 814c of the General Statutes, entitled "Human Rights and Opportunities."

Further, in 2000, when the General Assembly passed "An Act Concerning The Best Interest of Children In Adoption Matters," P.A. No. 00-228, it made clear in §1(4) of that Act: "It is further found that the current public policy of the state of Connecticut is now limited to a marriage between a man and a woman." Conn. Gen. Stat. § 45a-727a(4) (emphasis supplied). This provision is found in Chapter 803 of the General Statutes, entitled "Termination of Parental Rights and Adoption."

In § 5 of the same Act, P.A. No. 00-228, codified at Conn. Gen. Stat. § 45a-727b, the General Assembly underscored this point, providing:

Nothing in this section and sections 45a-724, 45a-727, 45a-727a and 45a-731 shall be construed to establish or constitute an endorsement of any public policy with respect to marriage, civil union or any other form of relation between unmarried persons or with respect to any rights of or between such persons other than their rights and responsibilities to a child who is a subject of an adoption as provided for in sections 45a-724 and 45a-727.

In floor debate on the measure, Sen. Donald Williams, Chair of the Judiciary Committee, made clear that the bill did "not change our policy on marriage in the state of Connecticut." 43 S. Proc., Pt. 8, 2000 Sess., pp. 2456-57.

The General Assembly's statements are consistent with Connecticut common law as well. In the only Connecticut decision that discusses the issue at all, the Connecticut Appellate Court held that the union of two persons of the same sex "[c]learly . . . is not a marriage recognized under [Conn. Gen. Stat.] § 46b-1 because it was not entered into between a man and a woman." Rosengarten v. Downes, 71 Conn. App. 372, 378, cert. granted and dismissed, 261 Conn. 936 (2002).2 The Court noted that Connecticut statutes do "not endorse or authorize, respectively, civil unions or any other relationship between unmarried persons," and that "the common law of Connecticut regarding rights arising out of marital status makes clear that this legal relation contemplated a contract made between a man and a woman." Id. at 383, citing 1 Z. Swift, A Digest of the Laws of the State of Connecticut (1822), p. 18.

Our Supreme Court has stated that "[a]t least since Maynard v. Hill, 125 U.S. 190, 210-14 (1888), it has been clear that the legislature has plenary power to determine the circumstances under which a marital relationship is created and terminated." Carabetta v. Carabetta, 182 Conn. 344, 346 (1980). Although a marital relationship is in its origins contractual, depending as it does upon the consent of the parties, 'a contract of marriage is sui generis. It is simply introductory to the creation of a status, and what that status is the law determines.'" Id., quoting Gould v. Gould, 78 Conn. 242, 245 (1905).

Thus, I am aware of no statute or legislative history authorizing the issuance of a marriage license to a same sex couple, or the performance of a marriage ceremony for a same sex couple in this state. To the contrary, the Connecticut Appellate Court has stated that Connecticut has a "strong legislative policy against permitting same sex marriages." Rosengarten v. Downes, 71 Conn. App. 372, 384, cert. granted and dismissed, 261 Conn. 936 (2002). Hence, local officials cannot legally issue marriage licenses to or perform ceremonies for same sex couples under current law. Issuing a marriage license or performing a marriage ceremony without authority or contrary to law could render an individual vulnerable to criminal sanctions. See e.g., Conn. Gen. Stat. §§ 46b-23 and 46b-32.

Notably, the General Assembly's use of the phrases "current public policy" and "is now limited" when most recently addressing the issue of same sex marriages in P.A. No. 00-228, § 1(4) gives emphasis to what is essentially a truism for all legislative enactments: that the policy of the state can change. Only the General Assembly can give effect to this change in policy by amending the general statutes. "The legislature is free to modify or clarify the policy as it desires. Until it does so, however, we are limited to an interpretation of the statutes as presently written." Connecticut Light and Power Co. v. Texas-Ohio Power, Inc., 243 Conn. 635, 655 n.16 (1998).3

II. CONSTITUTIONAL QUESTIONS

As in all cases that impact the civil rights of citizens, our courts must ultimately determine whether this State's law violates constitutional principles by declining to authorize or recognize marriages between same sex couples. A number of cases raising constitutional challenges to state laws that limit marriage to opposite sex couples are presently making their way through the various courts of the nation. No reliable prediction can be made whether a consensus will emerge among the state or federal courts, or how our own state courts will rule on a particular constitutional challenge. A summary of representative constitutional challenges shows that they raise serious legal issues, whatever their ultimate outcome.

Although the analytical framework for equal protection claims is similar under the federal and Connecticut constitutions, the Connecticut Supreme Court has made clear that the equal protection clauses of the Connecticut Constitution may provide greater protection than does their federal counterpart. Ramos v. Town of Vernon, 254 Conn. 799, 827-28 (2000). Thus, decisions holding that laws limiting marriage to opposite sex couples do not violate the United States Constitution, though instructive, do not preclude an equal protection claim challenging the limitation under the Connecticut Constitution. Cf. Baker v. Vermont, 744 A.2d 864, 870 n.2 (Vt. 1999) (holding that limiting marriage to opposite-sex couples violated state constitution and not reaching federal constitutional claims). Indeed, the Connecticut Constitution contains language similar to that relied upon, in part, by the Vermont Supreme Court in striking down statutes in that State that limit the benefits of marriage to opposite sex couples. See Conn. Const. art. I, § 1 ("no man or set of men are entitled to exclusive public emoluments or privileges from the community"); Baker v. Vermont, 744 A.2d 864, 874 (Vt. 1999).

Under either the federal or state constitutions, however, the first step in analyzing an equal protection claim is to determine the level of scrutiny the court must apply in determining the validity of the challenged statutes. Donahue v. Town of Southington, 259 Conn. 783, 794 (2002). That level of scrutiny depends on whether the classification created by the statutes burdens a suspect class or infringes on a fundamental right. Id. If so, the court will subject the statute to heightened scrutiny. Id. If not, the court will grant more deference to the legislature and hold the statute constitutional so long as it is "'rationally related to a legitimate government purpose.'" Id., quoting Barton v. Ducci Electrical Contractors, Inc., 248 Conn. 793, 814 (1999).

The crucial question thus becomes whether limiting marriage to opposite sex couples burdens a suspect class or infringes on a fundamental right. Courts that have examined similar classifications between same sex and opposite sex couples have characterized the class involved in one of two ways, either as based on sex or as based on sexual orientation. Compare Baehr v. Lewin, 852 P.2d 44, 69 (Haw. 1993) (treating classification as based on sex) with Singer v. Hara, 522 P.2d 1187, 1196 (Wash. Ct. App. 1974) (treating classification as based on sexual orientation). Classifications based on sex are inherently suspect and subject to heightened scrutiny under both the federal and state constitutions. See Kadrmas v. Dickinson Public Schools, 487 U.S. 450, 459 (1988) (applying intermediate scrutiny to sex classification); Daly v. DelPonte, 225 Conn. 499, 513-14 (1993) (indicating, in case involving classification based on disability, that classifications based on characteristics enumerated in Article First, § 20 of the Connecticut Constitution, including sex, are subject to strict scrutiny). By contrast, classifications based on sexual orientation are generally held to be subject only to rational basis scrutiny. See, e.g., Romer v. Evans, 517 U.S. 620, 631-32 (1996).

There is insufficient precedent to know whether Connecticut courts would hold that the State's limit on marriage to couples of the opposite sex is a classification based on sex or a classification based on sexual orientation. Although the limitation would more likely be upheld if viewed as being based on sexual orientation, that analysis would not fully insulate it from attack. Indeed, the Supreme Judicial Court of Massachusetts has held that Massachusetts' ban on same-sex marriages failed to survive even the most deferential level of scrutiny. See Goodridge v. Dep't of Public Health, 798 N.E.2d 941, 961 (Mass. 2003).

Moreover, even where no subject class is at issue, a statute will still be subject to strict scrutiny under either equal protection or due process if it infringes on a fundamental right. See Ramos v. Town of Vernon, 254 Conn. 799, 840-41 (2000) (applying similar analysis to equal protection and due process claims asserting violations of fundamental rights). The principle is well-established and long-accepted that the right to marry is fundamental. See, e.g., Loving v. Virginia, 388 U.S. 1, 12 (1967). It does not necessarily follow, however, that a court would consider the right to marry someone of the same sex to be fundamental. Some courts addressing the issue have concluded that the fundamental right to marry is limited to opposite sex couples, reasoning that marriage by definition is between a man and a woman. See, e.g., Standhardt v. Superior Court of Ariz., 77 P.3d 451, 458 (Ariz. Ct. App. 2003); Baehr, 852 P.2d at 556. Others have held to the contrary. See, e.g., Goodridge v. Dep't of Public Health, 798 N.E.2d 941, 961 (Mass. 2003). Ultimately, Connecticut's courts must decide whether the fundamental right to marriage encompasses the right to marry someone of the same sex. See Ramos v. Town of Vernon, 254 Conn. 799, 836-37 (2000). (noting that the due process clauses of the Connecticut Constitution may provide greater protections than their federal counterpart). Only after answering that threshold question can the analysis proceed to determine whether the State must justify its limitation by a compelling state interest, or merely by a rational basis.

III. CONCLUSION

In conclusion, Connecticut's statutes do not presently allow or authorize state or local officials either to issue a marriage license to, or conduct a marriage ceremony between, couples of the same sex. No reliable prediction is possible on how a court will rule on the various constitutional challenges that could be brought in Connecticut. Reaching the constitutional issues is unnecessary and unwise at this time. The duly enacted laws of this state enjoy a presumption of constitutionality until a court rules to the contrary. State v. Rizzo, 266 Conn. 171, 212 (2003). This office has a duty to defend the constitutionality of duly enacted state laws against constitutional challenges. "It is the policy of this Office that we will not provide advisory opinions to resolve the issue of the constitutionality of a state statute, except where the statute is unquestionably unconstitutional on its face.

Letter from AG Blumenthal to Gov. Mitt Romney dated May 17, 2004

Dear Governor Romney: 
I write in response to your letter dated April 29, 2004, and sent to the Governors and Attorneys General of 49 States. 

Respectfully, I decline your invitation to provide advice on how Massachusetts law would impact on same sex couples who reside in Connecticut and seek to be married in Massachusetts. Specifically, your question necessarily requires an analysis of Massachusetts law, which I have neither authority nor expertise to interpret as part of my duties. 

As you will note, an opinion I have released to local officials in my state concludes that the Legislature has not authorized the issuance of a Connecticut marriage license to a same sex couple, or the performance of a marriage ceremony for a same sex couple, in Connecticut. This State’s Legislature has stated “that the current public policy of the state of Connecticut is now limited to a marriage between a man and a woman.” Conn. Gen. Stat. § 45a-727a(4). The Connecticut Legislature has also specifically stated that the human rights statutes should not be construed “to authorize the recognition of or the right of marriage between persons of the same sex.” Conn. Gen. Stat. § 46a-81r. As you well know from your own experience in Massachusetts, whether a Connecticut court would uphold Connecticut law against any constitutional challenge cannot be predicted with accuracy. 

Your letter cites to a Massachusetts statute declaring “null and void” marriages contracted in your Commonwealth by parties residing, and intending to continue to reside, in another jurisdiction “if such marriage would be void if contracted in such other jurisdiction.” Mass. G.L. c. 207, § 11. The statute apparently requires an analysis of whether a marriage conducted in Massachusetts would be “void” in Connecticut. Your letter concludes with a statement of your view that same sex marriages are “not permitted” under Connecticut law. 

Under Connecticut law, however, whether a marriage is “void” is a different question from whether the marriage is “permitted” or “authorized.” Carabetta v. Carabetta, 182 Conn. 344, 348-49 (1980) (“[i]n the absence of express language in the governing statute declaring a marriage void for failure to observe a statutory requirement, this court has held in an unbroken line of cases . . . that such a marriage, though imperfect, is dissoluble rather than void.”). As stated in our opinion, same sex marriages are not authorized in Connecticut. But that fact does not make them automatically void, because our state has no statute declaring same sex marriages void so. The answer to your question therefore depends on the legal effect and meaning of a provision of your own statute, particularly the term “void,” as interpreted by Massachusetts courts and the Massachusetts Attorney General. 

I am neither equipped nor authorized to determine what the Massachusetts Legislature meant when it used the word “void” in your statute. For this, I suggest you rely on your own State’s Attorney General for advice. In my own view, this course would be preferable to relying on the Attorneys General of 49 states to construe the term “void” under Massachusetts law, thereby risking inconsistent and conflicting interpretations. 

Very truly yours, 
RICHARD BLUMENTHAL