Connecticut Marriage Argument

Today the Connecticut Supreme Court heard arguments from the parties in Kerrigan et al. v. Department of Public Health, in which 8 same-sex couples argue that they have a constitutional right to marry.  The case is brought under Connecticut's state constitution of 1965, which was amended during the 1970s by the addition of an Equal Rights Amendment, providing that equality of the law in Connecticut shall not be abridged on the basis of sex.

This Connecticut argument differed from all those that have gone before because it takes place in the context of a recent legislative enactment of a Civil Union Law, under which Connecticut affords to same-sex couples virtually all the legal rights and benefits that they would have if they were married to each other.  It was on this basis that the trial judge ruled in favor of the state, reasoning that as the state had given all the legal rights and benefits of marriage to same-sex couples, the deprivation of the actual status of marriage did not create such an inequality as would violate the constitutional equality guarantee.  (The California Supreme Court argument, yet to take place, presents a similar scenario, although they call the statute a Domestic Partnership Law in that state.)

The chief justice had withdrawn from the case, so the full seven-member bench was constituted with the addition of a court of appeals judge, Lubbie Harper, Jr.  As thus constituted, the bench consisted of five men and two women, with Senior Associate Jusitce David Borden presiding.  Of the seven members of the bench, two were African-American, Justice Flemming Norcott, Jr., and Judge Harper.  I heard all but a few minutes of the argument.  (There was a brief recess at the two-hour mark and I misjudged the return, so didn't hear a few minutes of the argument by the state commencing after the recess.)  During all the time I was watching, the two women on the bench, Justices Joette Katz and Christine Vertefeuille, asked no questions and made no comments.  Most of the questions were posed by Justices Borden and Richard L. Palmer.  Judge Harper and Justice Norcott also asked some questions and interjected some comments.  Justice Peter Zarella spoke only briefly and didn't really tip his hand.

None of the judges gave any clear signals of their views on the ultimate issues in the case.  From what I could see, Justice Palmer started out as a skeptic on various points of the plaintiffs' arguments, but during the state's case he seemed gradually to be modifying his views, but it's dangerous to make predictions based on observations of an unfamiliar bench.  (I'm not familiar with any of these judges, so I can't really speculate based on who is known to enjoy playing Devil's Advocate.)  They all seemed pretty neutral in their questioning, to the extent that the four who posed a significant number of questions and made some observations appeared careful to avoid committing themselves on all but a few intermediate points in the argument, but I got the feeling that Palmer was moving towards the plaintiffs' direction during his questions and comments on the state's case.

Bennett Klein of Boston-based Gay and Lesbian Advocates and Defenders argued for the plaintiffs, and Jane Rosenberg, an Assistant Attorney General, argued for the defendants, with a brief cameo appearance by Judith A. Ravel, attorney for the Town of Madison, whose town clerk was the one who turned down the marriage license applicants and thus earned the distinction of being personally served with process as a named defendant.  Ms. Ravel noted that the town clerk was just following the instructions of the Attorney General, and she didn't like being a defendant in the case.

I thought Bennett Klein did an absolutely splendid job with the plaintiffs' argument and rebuttal.  He was unflappable, had the authorities and cases at his fingertips, had good answers for all the questions, and kept steering the argument back to his strongest points, making small concessions when necessary but never losing sight of the main argument - that the state constitution's guaranty of equality has never been satisfied by "separate but equal," and that, as he began his argument, the legislature in the Civil Union Act had created "a separate institution for one minority group."  The legislative history of the Act showed that to the legislators "marriage means something," that is, they saw a distinction between civil unions and marriage, and if there is a distinction, then there is not complete equality.  Despite the state's claims that the law is "neutral" on its face, the legislative history shows "a considered decision to deny to one class of citizens the same institution that is available to other citizens."

Klein focused strongly on the state ERA, pointing out that as a matter of "plain language" it places sex on the same plain as race for purposes of equality analysis, and invoking Loving v. Virginia and Johnson v. California for the analytical point that the equality requirement is not satisfied by imposing a class-based discrimination equally on different classes.  That is, in Loving, both white people and people of color were prohibited from marrying members of the other group, but the Supreme Court saw through the fake equality.  In Johnson, the Court rejected the idea of segregating state prisoners by race, even if only for the first 60 days of incarceration in a new prison, even though the segregation was equally imposed on prisoners of all races.  From this Klein drew the lesson that in the case of marriage, where the choice of marital partner is restricted by sex, the fact that both men and women are equally disallowed from marrying members of their own sex does not mean that there is no sex discrimination going on.  Rather, the marriage statute creates a sex classification, and as a matter of state constitutional law should be subject to strict scrutiny.

Judging by the questioning, at least some of the members who spoke had trouble accepting that argument, and Borden in particular seemed to want to focus more on the idea of sexual orientation discrimination and whether sexual orientation should be treated as a suspect classification, throwing the burden on the state to justify differential treatment by proving a compelling state interest.  Under questioning, he established to his apparent satisfaction the point that if the court decides that some form of heightened scrutiny applies in this case, the state probably loses, but it was not clear that he was willing to take that step.

Jane Rosenberg's argument for the state built on the trial court's decision, arguing that for purposes of legal analysis only the legal rights and benefits of marriage were relevant to the court's decision, and thus the Civil Union Law took care of any inequality existing before its enactment.  She pushed over and over again on the argument that at this point the case is just about semantics, but Justice Borden was unwilling to accept this, going out of his way -- even further than Klein in the main argument -- to described marriage as a "status," not just a word.  Judge Harper, who seemed rather neutral in his questioning during the plaintiffs' argument, seemed to become more combative during the state's argument, and Judge Palmer, who had not seemed particularly supportive of the plaintiffs during their argument, emerged as more their champion during the state's argument, challenging the idea that this was just about semantics by asking about the "stigma" of a separate institution and later directly challenging Rosenberg on her analysis of the suspect classification tests.

Rosenberg pushed on the argument that the Connecticut legislature has been progressive on gay rights, passing a civil rights law, a hate crimes law, a civil union law, and a law authorizing same-sex couples to adopt children, in many cases being ahead of the curve of most other states, as a way of asserting that gay people, at least in Connecticut, are not politically powerless, and thus are not entitled to the extra protection according those marked by a suspect classification.  Several of the judges jumped on this, including Palmer, asking whether that meant that women and people of color were no longer politically powerless and thus not entitled to strict scrutiny of laws discriminating against them, and Klein had a good comeback on this argument during his rebuttal.  Indeed, the rebuttal struck me as very useful, pinning down some misconceptions created by the state's argument. 

In the end, although I thought Rosenberg did a very professional job, I think she was outclassed in the argument by Klein, whose motivation -- after all -- seemed much stronger.  Rosenberg was doing a professional job, while Klein was advocating for a movement.  The incentives change the atmosphere.

What the state never really did was to articulate a good, nondiscriminatory reason for denying same-sex couples the right to marry at the same time it was bestowing on them all the state law rights and benefits of marriage.  The best Rosenberg could come up with was "tradition."  Clearly, after Lawrence v. Texas, she could not argue moral disapproval, and after the enactment of a civil union law, she couldn't very well use the "channeling procreation" argument that had triumphed in New York and Washington State and Indiana -- indeed, she disavowed reliance on that argument, while observing that of course in a rational basis case, as she argued this was, the court could rely on that argument if it wanted, noting that it was advanced by some amicus briefs.  But I think there was common agreement among justices speaking to the point that if the best she could come up with was tradition, she would lose if there were heightened scrutiny, and indeed might even lose in a rational basis argument.

Handicapping the outcome?  This is a difficult one.  It is really hard to know how the fact of the civil union law will cut with this court.   (Justice Burden even raised the strategic question to Klein that if he won, that would provide a disincentive for legislatures to pass civil union laws elsewhere, because opponents could argue that by passing them, they were setting up a case for the state supreme court to order the next step of marriage.) 

There are several possible outcomes here. 

One, if the court wishes to avoid the evil day of having to decide the merits of the case, would be to find fault with the lower court on an intermediate step in the analysis and send the case back for reconsideration.  The lower court really failed to take on the analytical task of determining the appropriate level of judicial scrutiny as a matter of detailed analysis of the tests prescribed by federal and state precedents, and the court could decide to send the case back with the dictate that a factual trial record be made so that this can be done properly, especially on the question of "immutability."  Justice Burden seemed critical that questions involving disputed facts, such as the question of "immutability" of sexual orientation, seemed to have been bypassed by the trial court in its grant of summary judgment.

Another possibility, unfortunately, is for the court to do what the California Court of Appeal has done, as the trial court did in this case, to find that what is really at stake in the case are the rights and benefits of marriage, and those had been adequately addressed by the legislature in the existing laws (Domestic Partnership in California, Civil Union in Connecticut).  After all, it could be argued, in Vermont the legislature responded to Baker v. State by passing a civil union law, and with the acquiescence of the plaintiffs, the Supreme Court decided that its equality mandate had been fulfilled.  In New Jersey, the Supreme Court made clear in its opinion that passage of a civil union law by the legislature in response to its decision would be "presumptively constitutional."  And, in Washington State last summer, the Supreme Court, in rejecting the marriage claim, pointedly noted that the plaintiffs had not wished the court to consider civil unions-- with the clear implication that had that alternative been on the table, the court might have gone for it.

Finally, of course, the court could follow the lead of Massachusetts and decree that marriage must be opened up to same-sex couples on the same basis that it is presently available to different-sex couples.

If I were placing bets at this point, I might bet on the first course - further litigation - but it would be foolish to bet, since two members of the court said nothing, and no members of the court said enough to indicate in any substantial way how they are leaning on the ultimate merits of the case.  I'm left confused especially by Justice Palmer, who at times sounded like an ardent gay rights advocate, at others like a defender of traditional marriage, and at yet others like somebody genuinely puzzled by various intermediate steps in the analysis proposed by Klein.

What can be said is that the same-sex marriage advocates in this case gave it their best shot, that Klein lived up to his excellent reputation as the winner of the first AIDS discrimination case decided by the US Supreme Court, and that if the battle is lost in the short term in this case, it will not be for lack of the best possible representation.