In news that no doubt has my mother-in-law and her partner kvelling already, the Connecticut Supreme Court has ruled by a 4-3 margin that gay couples must be afforded the right to marry (PDF), and that efforts to establish a separate-but-equal civil union scheme were insufficient to grant the equality to which gay couples are entitled under the Connecticut Constitution.
[With this ruling, says the NYT, CT joins MA and CA as the only states that allow same-sex couples to marry. CT, NH, NJ and VT all protect civil unions, and HI, ME, OR and WA have passed domestic partnership laws that allow same-sex couples to receive "some of the same benefits granted to those in civil unions."]
This decision builds off of and relies upon earlier ones in Massachusetts, California and New Jersey, and I'll do what I can to give you some flavor. On separate-but-equal:
Especially in light of the long and undisputed history of invidious discrimination that gay persons have suffered; we cannot discount the plaintiffs’ assertion that the legislature, in establishing a statutory scheme consigning same sex couples to civil unions, has relegated them to an inferior status, in essence, declaring them to be unworthy of the institution of marriage. In other words, ‘‘[b]y excluding same-sex couples from civil marriage, the [s]tate declares that it is legitimate to differentiate between their commitments and the commitments of heterosexual couples. Ultimately, the message is that what same-sex couples have is not as important or as significant as ‘real’ marriage, that such lesser relationships cannot have the name of marriage.’’
Although the legislature has determined that same sex couples are entitled to ‘‘all the same benefits, protections and responsibilities . . . [that] are granted to spouses in a marriage’’; General Statutes § 46b-38nn; the legislature nonetheless created an entirely separate and distinct legal entity for same sex couples even though it readily could have made those same rights available to same sex couples by permitting them to marry. In view of the exalted status of marriage in our society, it is hardly surprising that civil unions are perceived to be inferior to marriage. We therefore agree with the plaintiffs that ‘‘[m]aintaining a second-class citizen status for same-sex couples by excluding them from the institution of civil marriage is the constitutional infirmity at issue.’’ Accordingly, we reject the trial court’s conclusion that marriage and civil unions are ‘‘separate’’ but ‘‘equal’’ legal entities; and that it therefore ‘‘would be the elevation of form over substance’’; to conclude that the constitutional rights of same sex couples are implicated by a statutory scheme that restricts them to civil unions. Although marriage and civil unions do embody the same legal rights under our law, they are by no means ‘‘equal.’’ As we have explained, the former is an institution of transcendent historical, cultural and social significance, whereas the latter most surely is not. Even though the classifications created under our statutory scheme result in a type of differential treatment that generally may be characterized as symbolic or intangible, this court correctly has stated that such treatment nevertheless ‘‘is every bit as
restrictive as naked exclusions’’; because it is no less real than more
tangible forms of discrimination, at least when, as in the present case, the statute singles out a group that historically has been the object of scorn, intolerance, ridicule or worse.
Or, as the Lambda Legal Defense and Education Fund stated in its amicus brief (cited favorably by the Court): ‘‘Any married couple [reasonably] would feel that they had lost something precious and irreplaceable if the government were to tell them that they no longer were ‘married’ and instead were in a ‘civil union.’ The sense of being ‘married’ -- what this conveys to a couple and their community, and the security of having others clearly understand the fact of their marriage and all it signifies -- would be taken from them. These losses are part of what same sex couples are denied when government assigns them a ‘civil union’ status. If the tables were turned, very few heterosexuals would countenance being told that they could enter only civil unions and that marriage is reserved for lesbian and gay couples. Surely there is [a] constitutional injury when the majority imposes on the minority that which it would not accept for itself.’’
Much ink is then spilled on turf familiar to Con Law nerds -- what level of scrutiny do discriminations against gays receive under the law? The Court struck a middle course -- not merely rational basis (or the rational basis + animus of Cleburne/Moreno/Romer), and not quite strict scrutiny, but quasi-suspect status and intermediate scrutiny, which is how gender-based classfications are evaluated under the law. This is a more heightened level of scrutiny than that currently afforded to gays under the federal Constitution, and it requires that the state provide an "exceedingly persuasive" justification that the classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives. Why?
Gay persons have been subjected to and stigmatized by a long history of purposeful and invidious discrimination that continues to manifest itself in society. The characteristic that defines the members of this group -- attraction to persons of the same sex -- bears no logical relationship to their ability to perform in society, either in familial relations or otherwise as productive citizens. Because sexual orientation is such an essential component of personhood, even if there is some possibility that a person’s sexual preference can be altered, it would be wholly unacceptable for the state to require anyone to do so. Gay persons also represent a distinct minority of the population. It is true, of course, that gay persons recently have made significant advances in obtaining equal treatment under the law. Nonetheless, we conclude that, as a minority group that continues to suffer the enduring effects of centuries of legally sanctioned discrimination, laws singling them out for disparate treatment are subject to heightened judicial scrutiny to ensure that those laws are not the product of such historical prejudice and stereotyping.
The state offered two justifications for denying marriage to gay couples: "(1) to promote uniformity and consistency with the laws of other jurisdictions; and (2) to preserve the traditional definition of marriage as a union between a man and a woman." The first one was scoffed at. As for the second, since the state expressly disavowed any claim that this was justified "in the best interests of children" or that "prohibiting same sex couples from marrying promotes responsible heterosexual procreation," all they had left was TRADITION=TRADITION, and that wasn't enough:
Although we acknowledge that many legislators and many of their constituents hold strong personal convictions with respect to preserving the traditional concept of marriage as a heterosexual institution, such beliefs, no matter how deeply held, do not constitute the exceedingly persuasive justification required to sustain a statute that discriminates on the basis of a quasi-suspect classification.... Tradition alone never can provide sufficient cause to discriminate against a protected class, for ‘‘[neither] the length of time a majority [of the populace] has held its convictions [nor] the passions with which it defends them can withdraw legislation from [the] [c]ourt’s scrutiny.’’
And quoting from a few of my favorite SCOTUS decisions (cites deleted for clarity):
Moral disapproval alone, however, is insufficient reason to benefit one group and not another because statutory classifications cannot be ‘‘drawn for the purpose of disadvantaging the group burdened by the law.’’ Thus, just as ‘‘a bare . . . desire to harm a politically unpopular group’’ is not a legitimate basis for a statutory classification; so, too, is moral disapprobation an inadequate reason for discriminating against a disfavored minority. As the United States Supreme Court has stated more than once, ‘‘[p]rivate biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.’’
It is only because the state has not advanced a sufficiently persuasive justification for denying same sex couples the right to marry that the traditional definition of marriage necessarily must be expanded to include such couples. If the defendants were able to demonstrate sufficient cause to deny same sex couples the right to marry then we would reject the plaintiffs’ claim and honor the state’s desire to preserve the institution of marriage as a union between a man and a woman. In the absence of such a showing, however, we cannot refuse to follow settled equal protection jurisprudence merely because doing so will result in a change in the definition of marriage. Contrary to the suggestion of the defendants, therefore, we do not exceed our authority by mandating equal treatment for gay persons; in fact, any other action would be an abdication of our responsibility.
In sum, the state has failed to establish adequate reason to justify the statutory ban on same sex marriage. Accordingly, under the equal protection provisions of the state constitution, our statutory scheme governing marriage cannot stand insofar as it bars same sex couples from marrying.
Look: I will always prefer when gay couples are afforded equal rights when the decisions emerge from the political branches rather than the courts. Those democratic processes lend these rights a heightened level of poltiical legitimacy that doesn't occur as quickly when the rights are extended first by the judiciary. Over time, however, decisions like these and the reality they create do help shape public opinion towards progress, and I sure as hell prefer winning these cases to losing them, and welcome courts interpreting the (Connecticut and US) Constitution as a living document which evolves to protect and promote equality in each generation. So, for all the Nutmeg State's gay couples, gay families, gay teens and kids, and for all the future generations who will enjoy these rights, congratulations. It's a sunny day.