ADF Alliance Alert

This post may be updated.

Doma Watch information about the Kerrigan case: “On August 27, 2004, the ACLU and GLAD (the organization that filed the Goodridge lawsuit in Massachusetts) filed a lawsuit on behalf of seven same-sex couples claiming a right to marry under the Connecticut Constitution. Connecticut does not have a DOMA.”

A 4-3 majority on the Connecticut Supreme Court has voted to redefine marriage.

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Numerous reports are accessible through Google News.

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Links to the opinions:

• SC17716 – Kerrigan v. Commissioner of Public Health
• SC17716 Dissent – Kerrigan v. Commissioner of Public Health (Borden, J.  joined by Vertefeuille, J.)
• SC17716 Dissent – Kerrigan v. Commissioner of Public Health (Vertefeuille, J.)
• SC17716 Dissent – Kerrigan v. Commissioner of Public Health (Zarella, J.)

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Majority opinion, excerpts

PALMER, J.  joined by NORCOTT, KATZ, AND HARPER, Js.:

We conclude, first, that the trial court improperly determined that the distinction between civil unions and marriage is constitutionally insignificant merely be cause a same sex couple who enters into a civil union enjoys the same legal rights as an opposite sex couple who enters into a marriage. We also conclude that our statutory scheme governing marriage impermissibly discriminates against gay persons on the basis of their sexual orientation . . .

We do not doubt that the civil union law was designed to benefit same sex couples by providing them with legal rights that they previously did not have. If, however, the intended effect of a law is to treat politically unpopular or historically disfavored minorities differently from persons in the majority or favored class, that law cannot evade constitutional review under the separate but equal doctrine. See, e.g., Brown v. Board of Education, 347 U.S. 483, 495, 74 S. Ct. 686, 98 L. Ed. 873 (1954); cf. In re Marriage Cases, supra, 43 Cal. 4th 830–31; Opinions of the Justices to the Senate, supra, 440 Mass. 1209. In such circumstances, the very existence of the classification gives credence to the perception that separate treatment is warranted for the same illegitimate reasons that gave rise to the past discrimination in the first place. 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.16 We therefore conclude that the plaintiffs have alleged a constitutionally cognizable injury, that is, the denial of the right to marry a same sex partner. We next must determine whether the state’s differential treatment of same sex and opposite sex couples nevertheless satisfies state constitutional requirements . . .

CONCLUSION

We recognize, as the Massachusetts Supreme Judicial Court did in Goodridge v. Dept. of Public Health, supra, 440 Mass. 309, that ‘‘our decision marks a change in the history of our marriage law. Many people hold deepseated religious, moral, and ethical convictions that marriage should be limited to the union of one man and one woman, and that homosexual conduct is immoral. Many hold equally strong religious, moral, and ethical convictions that same-sex couples are entitled to be married, and that homosexual persons should be treated no differently than their heterosexual neighbors. Neither view answers the question before [the  court]. Our concern is with [our state] [c]onstitution as a charter of governance for every person properly within its reach.’’ Id., 312.

The drafters of our constitution carefully crafted its provisions in general terms, reflecting fundamental principles, knowing that a lasting constitution was needed. Like the framers of the federal constitution, they also ‘‘knew [that] times can blind us to certain truths, and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the [c]onstitution endures, persons in every generation can invoke its principles in their own search for greater freedom.’’ Lawrence v. Texas, supra, 539 U.S. 579. Not long ago, this court made the same essential point, explaining that ‘‘as we engage over time in the interpretation of our state constitution, we must consider the changing needs and expectations of the citizens of our state.’’ State v. Webb, 238 Conn. 389, 411, 680 A.2d 147 (1996). This admonition applies no less to the guarantee of equal protection embodied in our constitution than to any other state constitutional provision. Even though the right to marry is not enumerated in our constitution, it long has been deemed a basic civil right. E.g., Loving v. Virginia, supra, 388 U.S. 12 (‘‘[m]arriage is one the basic civil rights of man’’ [internal quotation marks omitted]); Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541, 62 S. Ct. 1110, 86 L. Ed. 1655 (1942) (same). Although we traditionally have viewed that right as limited to a union between a man and a woman, ‘‘if we have learned anything from the significant evolution in the prevailing societal views and official policies toward members of minority races and toward women over the past half-century, it is that even the most familiar and generally accepted of social practices and traditions often mask unfairness and inequality that frequently is not recognized or appreciated by those not directly harmed by those practices or traditions. It is instructive to recall in this regard that the traditional, well-established legal rules and practices of our not-so-distant past (1) barred interracial marriage, (2) upheld the routine exclusion of women from many occupations and official duties, and (3) considered the relegation of racial minorities to separate and assertedly equivalent public facilities and institutions as constitutionally equal treatment.’’ In re Marriage Cases, supra, 43 Cal. 4th 853–54. Like these once prevalent views, 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 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.

83 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.84 The judgment is reversed and the case is remanded with direction to grant the plaintiffs’ motion for summary judgment and application for injunctive relief. In this opinion NORCOTT, KATZ and HARPER, Js., concurred.

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BORDEN, J., with whom VERTEFEUILLE, J., joins, dissenting. The majority concludes that sexual orientation is a quasi-suspect class under our state constitutional provisions guaranteeing equal protection of the laws; article first, § 1, and article first, § 20, of the constitution of Connecticut, as amended by articles five and twenty-one of the amendments;1 and, based on that conclusion, the majority further concludes that our statute confining marriage to opposite sex couples violates the rights of same sex couples under those constitutional provisions because the statute does not survive the heightened scrutiny required by that constitutional classification.2 In my view, the majority’s decision to grant quasi-suspect class status to sexual orientation is contrary to a sound and prudent interpretation of constitutional standards regarding equal protection of the laws because it unduly minimizes the unique and extraordinary political power of gay persons3 in this state, both generally speaking, and particularly in regard to the question of whether gay marriage should be recognized in this state.

I conclude that sexual orientation does not constitute either a suspect or a quasi-suspect class under our state constitution. I also reject the other claims raised under our state constitution, by the plaintiffs, eight same sex couples,4 namely, that our definition of marriage as limited to the union of a man and a woman creates an impermissible gender classification in violation of the plaintiffs’ right to equal protection and deprives the plaintiffs of their fundamental constitutional right to marry, and conclude, accordingly, that our civil union and marriage statutes survive the constitutionally minimum standard of rational basis review. I therefore dissent and would affirm the trial court’s judgment.5

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VERTEFEUILLE, J., dissenting. . . . I therefore write separately simply to emphasize two points.
First, ‘‘[i]t is well established that a validly enacted statute carries with it a strong presumption of constitutionality . . . . The court will indulge in every presumption in favor of the statute’s constitutionality . . . . Therefore, [w]hen a question of constitutionality is raised, courts must approach it with caution, examine it with care, and sustain the legislation unless its invalidity is clear.’’ (Internal quotation marks omitted.) State v. McKenzie-Adams, 281 Conn. 486, 500, 915 A.2d 822, cert. denied, U.S. , 128 S. Ct. 248, 169 L. Ed. 2d 148 (2007).

Moreover, because of this strong presumption favoring a statute’s constitutionality, ‘‘those who challenge its constitutionality must sustain the heavy burden of proving its unconstitutionality beyond a reasonable doubt.’’ (Emphasis added; internal quotation marks omitted.) Id. Our jurisprudence thus requires the highest possible standard of proof in order to sustain a challenge to the constitutionality of a statute validly enacted by our legislature. In my view, Justice Borden’s compelling opinion respects both of these fundamental, time-honored principles. Accordingly, I respectfully dissent.

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ZARELLA, J., dissenting. The majority concludes that the marriage laws,1 which define marriage as the union of one man and one woman,2 classify on the basis of sexual orientation, that this classification is subject to intermediate scrutiny under article first, §§ 1 and 20, of the Connecticut constitution, as amended by articles five and twenty-one of the amendments,3 and that, under this heightened level of review, the state has failed to provide sufficient justification for limiting marriage to one man and one woman.

The latter conclusion is based primarily on the majority’s unsupported assumptions that the essence of marriage is a loving, committed relationship between two adults and that the sole reason that marriage has been limited to one man and one woman is society’s moral disapproval of or irrational animus toward gay persons. Indeed, the majority fails, during the entire course of its page opinion, even to identify, much less to discuss, the actual purpose of the marriage laws, even though this is the first, critical step in any equal protection analysis. I conclude, to the contrary, that, because the long-standing, fundamental purpose of our marriage laws is to privilege and regulate procreative conduct, those laws do not classify on the basis of sexual orientation and that persons who wish to enter into a same sex marriage are not similarly situated to persons who wish to enter into a traditional marriage.

The ancient definition of marriage as the union of one man and one woman has its basis in biology, not bigotry. If the state no longer has an interest in the regulation of procreation, then that is a decision for the legislature or the people of the state and not this court. Therefore, I conclude that the equal protection provisions of the state constitution are not triggered. I further conclude that there is no fundamental right to same sex marriage. Accordingly, I dissent . . .