The Connecticut Supreme Court ruled today that the state must allow same-sex couples to marry. In yet another decision with a one-vote margin,* this time 4 to 3, the court ruled in Kerrigan v Commissioner of Public Health, 2008 WL 4530885, that the already-existing civil union system in the state was not sufficient to provide equal protection of the law to gay couples.
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. Ironically, the court heard oral arguments more than a year ago, in the spring of 2007. The delay in reaching a decision had become something of a joke among lawyers. But it looks to me like the CT justices get to have the last laugh, since their timing was impeccable in terms of creating an impact. But — what kind of impact?
A big part of me wishes that they had just kept on navel gazing until the polls had closed. I have no doubt that the anti-gay forces especially in CA and other states where there is a marriage question on the ballot will have a field day with this news. Stop the queers now or [fill in horror story] will be upon us! On the other hand, maybe the news that a little vanilla state like CT now has gay marriage will reassure uncertain Californians that they won't be too far out in left field if they let their own supreme court decision stand. Will the third time be the charm? And if so, for which side?
Within CT, the decision may give life to an effort by conservatives to win a referendum on this year's ballot that would convene a state constitutional convention. As of August, the Connecticut Constitution Convention campaign had raised only $1,100, and I would bet that until today, not many people in or out of the state were aware of the possibility of a new constitutional convention. Oy.
Of course, it just might be that with the banking system and stock market crumbling like the twin towers, people have more important things to worry about and to base their vote on than who gets to get married in which state. Let's hope.
In terms of legal doctrine, the key points from the decision are in the following summary:
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 other words, the court ruled that classifications based on sexual orientation were subject to the same intermediate (neither the strictest nor the most lenient) standard for judicial review as used for classifications based on sex.
It's unclear right now when the ruling will take effect. The Associated Press is reporting that same-sex marriages may begin within the month. CT does not have a residency requirement for marriage, so out-of-staters can avail themselves of a nutmeg wedding if they so desire.
A big shout-out to the terrific lawyers at GLAD who are sweeping through New England leaving more and more equality in their wake. Ben Klein argued the case in the CT Supreme Court – WTG, Ben! The incomparable Mary Bonauto directs the GLAD civil rights project. Congrats also (indulge me here) to another participating attorney – CT ACLU legal director (and my former student) Renee Redman.
The CT decision leaves only one outstanding litigation challenge to a marriage law: the case brought by Lambda Legal in Iowa. Oral arguments before the Iowa Supreme Court have been scheduled for December 9. The win in CT will certainly give added ammunition in that case for the legal arguments. Politically, without anyone having to mention it, there is no way that the electoral outcome in California will not also have a huge impact in Iowa.
UPDATE Oct. 12 – The main dispute within the court, to the extent one can tell from the opinions, appears to have been over whether sexual orientation classifications in 2008 Connecticut should be subject to heightened scrutiny given the degree of political power that gays have achieved. Two of the three dissenting justices would have ruled against plaintiffs on that ground. (The third dissenter argued that marriage is about procreation, so same-sex couples are not similarly situated to straight couples, and thus don't fit the criteria for marriage.)
In equal protection law, the theory behind judicial review is that courts should intervene to override legislative determinations only when the political process has failed. One example of the failure of democratic process is when minorities are so powerless that they cannot achieve reasonable gains through normal legislative bargaining.
The Kerrigan majority ruled that gay people were an example of a "sensitive, though not suspect" minority because sexual orientation has been the basis of ingrained stereotypes and a long history of discrimination. The court emphasized that the U.S. Supreme Court found sex to be a quasi-suspect classification, despite the degree of political power attained by women at the time when the Supreme Court ruled on that issue. Analogizing to women, the Connecticut Supreme Court reasoned that sexual orientation discrimination should be subject to the same degree of scrutiny as sex discrimination.
* In almost every state where the state's highest court has ruled on a challenge to the exclusion of same-sex couples from marriage, the final decision has been by a one vote margin. This has been true both in the states that have granted the right to marry – MA, CA and now CT – and also in the states where it has lost – NJ and WA. In NY, there was a two vote margin, but one judge recused himself; if he had participated, the likely result would have been the same, but with a one vote difference. — The victories and losses don't get any closer than this.