Connecticut Supreme Court Rules 4-3 That Same-Sex Couples Have a Right to Marry

The Connecticut Supreme Court finally ended a protracted period of suspense that began on May 14, 2007, when the case was argued, announcing on October 10, 2008, that it had voted 4-3 in favor of the claim that same-sex couples have the same right to marry under the state’s constitution as different-sex couples. Justice Richard N. Palmer, writing for the court, found that the state’s 2005 Civil Union Act, which provides same-sex couples with access to all the state-law rights of married different-sex couples, failed the state constitution’s requirement of equal protection of the laws.

Connecticut thus became the third state in which the highest court has ruled in favor of a same-sex marriage claim, following Massachusetts in 2003 and California earlier this year. Courts in Vermont and New Jersey had also found a constitutional violation in the state’s denial of the benefits of marriage to same-sex couples, but left it to the legislatures to remedy the constitutional defect, resulting in the passage of civil union laws in both states.

The Connecticut court faced a question similar to that confronted in California, where the legislature had also establish a legal status other than marriage for same-sex couples that provided near-parity in state legal rights, called domestic partnership in that state. Although the Connecticut court did not go as far as the California court in constructing a constitutional theory for requiring the state to go all the way to marriage, it did break new constitutional ground for Connecticut.

The case was originally filed by Gay & Lesbian Advocates & Defenders, the Boston-based public interest law firm, on behalf of eight same-sex couples whose applications for marriage licenses had been denied. At the time, GLAD had recently achieved its triumphant victory in Massachusetts and was seeking to build on that victory in a neighboring state where attempts to achieve legal recognition for same-sex couples had not gotten very far in the legislature. Many state and national organizations joined in support of the litigation through amicus briefs and various other forms of assistance to the plaintiffs. GLAD Bennett Klein was lead counsel on the case.

Filing of the suit, however, helped to spur the legislature on to the adoption of a Civil Union Act, making Connecticut the first state to adopt a civil union act without being ordered to take action by a state high court ruling, although in California the progress towards a broad domestic partnership law had similarly proceeded without the spur of a court order. Then the State of Connecticut moved for summary judgment in the marriage case, arguing that passage of civil unions had cured any possible constitutional defect.

This argument persuaded the trial judge, who granted the state’s motion for summary judgment, concluding that whatever difference there was between civil unions and marriage was not significant enough to raise a constitutional claim.

Every judge on the seven-member court disagreed with that initial proposition. The majority and the three dissenting justices all agreed on this one point: that civil unions and marriage are different things, because marriage is more than just a bundle of legal rights. Marriage, as they all recognized, is a social institution of long standing that has meaning and social status beyond the concrete legal rights and responsibilities associated with it. Thus, all the judges agreed that the plaintiffs had raised a valid constitutional question.

The main disagreement was over the appropriate standard by which the court would evaluate this constitutional challenge. The most demanding level of judicial review is strict scrutiny, under which a law that abridges a fundamental right or disadvantages people based on a suspect classification is presumed to be unconstitutional unless the state can show a compelling need for the law that can only be achieved through the challenged policy. The least demanding level of judicial review is the "rational basis test," where the right at stake is not deemed fundamental, or the law does not embrace a suspect classification. This mode of judicial review presumes the constitutionality of the law and places on the challenger the burden to show that there is no rational basis for it. In some cases, courts have recognized a level of review intermediate between these two, where important individual interests are at stake or where the law disadvantages based on a classification that might be called "quasi-suspect." In these cases, the burden of justification is placed on the government, to show that the challenged law advances some important state interest and does so better than any less discriminatory alternative. The court’s decision of which level of review to use plays a major role in the outcome of a case for obvious reasons.

In the California marriage cases, the court decided that the marriage law’s exclusion of same-sex couples discriminated regarding a fundamental right – the right to marry – and involved a suspect classification – sexual orientation. As a result, it fell under strict scrutiny and the state’s arguments in support of the law were unavailing.

The Connecticut court was not willing to go that far, but the majority concluded that the law does discriminate on the basis of sexual orientation, and that gay people should be regarded as a "quasi-suspect class" under the state’s constitution, thus putting the burden on the state to justify excluding them from the right to marry.

Unlike the federal constitution, the Connecticut Constitution contains an express enumeration of the "suspect classes," with do not include sexual orientation, and the court was not willing to adopt the argument, which the California Supreme Court found appealing, that this was also an instance of sex discrimination. However, the court noted that its own past decisions had suggested that the existence of such an enumeration did not preclude the existence of intermediate categories, since the constitution also made clear that the guarantee of equal protection extends to everyone.

Justice Palmer carefully examined each of the various factors that the U.S. Supreme Court has used in identifying "quasi-suspect" classes. There was general agreement among all the Connecticut justices that of the four factors that the U.S. Supreme Court uses, gay people would qualify on three of them: a history of invidious discrimination against the class, that the characteristic in question is not relevant to a person’s ability to participate in society, and that the characteristic in question is either immutable or so fundamental to personal identity that the government could not insist on the individual trying to change it. Where the dispute came was on the question of political power. The Supreme Court has sometimes indicated that groups who are unable to protect their interests in the legislative process due to lack of political power may need the assistance of the courts through judicial review.

On this point, the dissenters argued that gay people actually have lots of political clout in Connecticut. After all, Connecticut was one of the earlier states to reform their sodomy laws, and over the past several decades Connecticut has passed a broad gay rights law, has legislated to allow second-parent adoptions, and has passed the civil union law. Clearly, in the dissenters’ view, these legislative victories would have been impossible had gay people been unable to form the political alliances necessary to advance their interests. Dissenting Judge David M. Borden also noted that a same-sex marriage bill had been introduced in the legislature to great fanfare, had achieved significant co-sponsorship, and had even been approved in committee, but had not been subjected to floor votes in the legislature yet for a variety of reasons.

To Borden and the other dissenters, Justices Christine S. Vertefeuille and Peter T. Zarella, gay political power in Connecticut was too far advanced to hold that gay people needed special protection of the courts.

However, the majority of the court concluded otherwise. Justice Palmer pointed out that the neither the U.S. Supreme Court nor the Connecticut Supreme Court had invariably insisted that all four factors must be presented to justify treating a particular group as needing judicial protection from discrimination. Indeed, he noted, it was clear from recent U.S. Supreme Court decisions that the current political power of particular groups was not a determinative factor. In recent cases, for example, the Supreme Court has found that race remains a suspect classification, even though some racial minorities have achieved substantial political power in this country, and that sex remains a suspect classification, even though women constitute a majority of the electorate and have made steady gains in placing their issues at the head of the legislative agenda. Indeed, in so-called "reverse discrimination" cases, the Court has used strict scrutiny to evaluate race discrimination claims by white plaintiffs, even though it would be hard to justify treating white people as a group as politically disadvantaged in the U.S.

Palmer found the analogy of gays and women to be appropriate for purposes of this analysis. Although the Connecticut Constitution expressly makes sex a suspect classification, the Supreme Court has refused to go that far under the federal constitution, instead using its multifactorial test to deem sex a "quasi-suspect" classification invoking intermediate scrutiny. Women, like gays, have substantial political power, but suffer from a history of discriminatory treatment by the state, usually based on stereotypes about the group.

Having concluded that intermediate or heightened scrutiny applies, the court put the burden on the state to justify having made available state law rights but denied the status of marriage. The court accepted the plaintiffs’ argument that civil unions are a lesser status than marriage, as civil unions are merely a bundle of legal rights and responsibilities, while marriage is a long-standing social institution. Indeed, noting the long history of discrimination against gay people in our society, the court majority saw the creation of a separate status (that included a declaration that only a man and a woman could marry) as a clear indication of inferior status.

Since the state had disclaimed any reliance on the bizarre "channeling procreation" theory that has won favor in some other state high courts that have rejected same-sex marriage claims (New York, Maryland, Washington State, for example), the court found only two justifications in the state’s argument: an interest in maintaining uniformity with the marriage laws of other states, and an interest in preserving the long-standing traditional definition of marriage. The court found both of these justifications lacking.

As to the former, Palmer wrote, the state had not explained why it was important to maintain uniformity. Clearly, such uniformity is breaking down, as neighboring Massachusetts and California (at least for now) have same-sex marriage. But, in addition, while acknowledging that a desire for uniformity might provide a rational basis for the distinction between same-sex and different-sex couples, Palmer found that under intermediate scrutiny the state had a burden to show why it was important, and had not done so.

As to the interest in preserving the traditional definition, Palmer dismissed this without great effort, pointing out that it was a way of saying that discrimination is insulated from challenge just because it is longstanding, a point not deemed worth much refutation.

Justice Borden’s dissent, joined by Justice Vertefeuille, focused primarily on the political power point, although he had differences with other parts of the majority decision, including the court’s conclusion, in the absence of any real proof – at least in his view – that civil unions would turn out in the long run to be of lesser status than marriages. Justice Zarella, by contrast, differed with the majority on virtually every point, to the extent of reviving, on behalf of the state, the channeling procreation argument. An essential element of the court’s equal protection analysis was the assertion that same-sex and different-sex couples are similarly situated with respect to the right at issue, a point the majority embraced based on its view that marriage was not just about procreation or necessarily about procreation. Zarella argued that marriage was, at its base, all about procreation, which he deemed the main justification for the state recognizing and buttressing this institution. If procreation is so central, then same-sex and different-sex couples are not similarly situated, in his view, because the former cannot procreate through sex.

All of the dissenters expressed concerns about the court preempting the political process by constitutionalizing a right to same-sex marriage, with Borden emphasizing his view that the political process was just chugging along toward same-sex marriage in any event, so there was no need in his view for the court to rush in and finish the task. Justice Palmer’s rejoinder was to point out that the marriage bill had been pulled off the floor without a vote due to many legislators stating they were not ready to vote on the issue. He also noted that at the time when the Supreme Court decided to treat sex as a quasi-suspect classification, there were arguments that the pending Equal Rights Amendment to the federal constitution, which had been approved by Congress overwhelmingly and sent to the states for ratification, would take care of the problem of sex discrimination, obviating the need to interpret the Equal Protection Clause to provide special judicial protection for women, but in the event the ERA fell short of the necessary states for ratification. (Some have argued, of course, that the Court’s action took the wind out of ERA’s sails, giving cover to those who argued it was not needed because the Court had granted women the necessary protection.)

The court’s decision concludes with an order to send the case back to the trial court, with directions to grant summary judgment in favor of the plaintiffs. The court’s opinion did not expressly state when and how the ruling would be implemented, so we await word from experts on Connecticut procedure. However, Connecticut has the practice of releasing opinions long in advance of their official effective date. As this opinion is designated as officially released on October 28, the remand to the trial court does not go into effect until then.