Friday, October 10, 2008

Connecticut Constitution Protects Same-Sex Couples' Right to Marry

"Ding dong! the bells are gonna chime"

The Connecticut Supreme Court held today that it violated the equal protection rights of gay and lesbian persons under the Connecticut constitution to deny them the freedom to marry civilly. The Court's opinion in Kerrigan v. Commissioner of Public Health rejected the state's argument that the marriage exclusion was constitutional because Connecticut offers same-sex couples "civil unions" with the same state-controlled legal incidents of marriage. At least when such an exclusion "singles out a group that has historically been the object of scorn, intolerance, ridicule or worse," even "symbolic or intangible" differential treatment is a constitutional harm Connecticut courts may address. And because marriage "is an institution of transcendent historical, cultural and social significance," whereas the new vintage status of civil unions (created by the Connecticut legislature during this lawsuit) most surely is not," the two legal regimes are not equal in a way insulating them from judicial review, the 4-3 majority ruled.

The Connecticut majority held that the marriage exclusion was a "quasi-suspect classification," which means that the state had to produce "an exceedingly persuasive justification" for its discrimination, not one that is barely rational. (This intermediate scrutiny standard is more deferential than the strict scrutiny used by the California Supreme Court in In Re Marriage Cases this past May.) The court rejected the state's claim that promoting uniformity and consistency with other states' and countries' marriage laws was a sufficiently important purpose to satisfy intermediate scrutiny. And it also rejected the argument that preserving the "traditional" definition of marriage as limited to relationships between one man and one woman could justify the statute.

And so the court ordered the case be sent back down to grant the plaintiffs a declaration that the exclusion of same-sex couples from civil marriage violated the Connecticut constitution and an injunction requiring state officials to let them marry.

Now, the question remains whether California will remain with Massachusetts and Connecticut as the only states in the union to allow same-sex couples to marry, or whether the voters will approve Proposition 8 on November 4 and eliminate the right of same-sex couples to marry in California.

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