The Connecticut Supreme Court has just issued a ruling, in Kerrigan & Mock v. Dept. of Public Health, that the state constitution protects same-sex couples’ right to marry. Relying on the Connecticut constitution’s equal protection clause, the court struck down the state’s civil unions law, saying that it created a separate and unequal class of citizens without sufficient justification. The case was brought by eight gay and lesbian couples who contested the Madison, CT town clerk’s denial of their applications for marriage licenses.
Thanks to Gay and Lesbian Advocates & Defenders (GLAD), Love Makes a Family, and MassEquality for their activism that helped bring about this victory.
The 85-page decision is available here as a PDF. Highlights:
The issue presented by this case is whether the state statutory prohibition against same sex marriage violates the constitution of Connecticut. The plaintiffs, eight same sex couples, commenced this action, claiming that the state statutory prohibition against same sex marriage violates their rights to substantive due process and equal protection under the state constitution. The trial court rendered summary judgment in favor of the defendant state and local officials upon determining that, because this state’s statutes afford same sex couples the right to enter into a civil union, which affords them the same legal rights as marriage, the plaintiffs had not established a constitutionally cognizable harm.The remainder of the majority opinion makes a thorough case for treating sexual orientation as a protected class for purposes of equal protection rights, similar to race, religion, ethnicity and gender. The court notes that most of the federal case law to the contrary relied on the now-overruled Supreme Court decision in Bowers v. Hardwick, which had upheld Georgia’s anti-sodomy law.
We conclude that, in light of the history of pernicious discrimination faced by gay men and lesbians, and because the institution of marriage carries with it a status and significance that the newly created classification of civil unions does not embody, the segregation of heterosexual and homosexual couples into separate institutions constitutes a cognizable harm. We also conclude that (1) our state scheme discriminates on the basis of sexual orientation, (2) for the same reasons that classifications predicated on gender are considered quasi-suspect for purposes of the equal protection provisions of the United States constitution, sexual orientation constitutes a quasi-suspect classification for purposes of the equal protection provisions of the state constitution, and, therefore, our statutes discriminating against gay persons are subject to heightened or intermediate judicial scrutiny, and (3) the state has failed to provide sufficient justification for excluding same sex couples from the institution of marriage.
In light of our determination that the state’s disparate treatment of same sex couples is constitutionally deficient under an intermediate level of scrutiny, we do not reach the plaintiffs’ claims implicating a stricter standard of review, namely, that sexual orientation is a suspect classification, and that the state’s bar against same sex marriage infringes on a fundamental right in violation of due process and discriminates on the basis of sex in violation of equal protection.
…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’’; Evening Sentinel v. National Organization for Women, 168 Conn. 26, 35, 357 A.2d 498 (1975); 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.
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. 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.
Although this court has indicated that a group may be entitled to heightened protection under the state constitution because of its status as a quasi-suspect class, we previously have not articulated the specific criteria to be considered in determining whether recognition as a quasi-suspect class is warranted. The United States Supreme Court, however, consistently has identified two factors that must be met, for purposes of the federal constitution, if a group is to be accorded such status. These two required factors are: (1) the group has suffered a history of invidious discrimination; see United States v. Virginia, 518 U.S. 515, 531–32, 116 S. Ct. 2264, 135 L. Ed. 2d 735 (1996); Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 313, 96 S. Ct. 2562, 49 L. Ed. 2d 520 (1976); and (2) the characteristics that distinguish the group’s members bear ‘‘no relation to [their] ability to perform or contribute to society.’’
The United States Supreme Court also has cited two other considerations that, in a given case, may be relevant in determining whether statutory provisions pertaining to a particular group are subject to heightened scrutiny. These two additional considerations are: (1) the characteristic that defines the members of the class as a discrete group is immutable or otherwise not within their control; see, e.g., Lyng v. Castillo, 477 U.S. 635, 638, 106 S. Ct. 2727, 91 L. Ed. 2d 527 (1986) (for purposes of suspectness inquiry, relevant consideration is whether members of class ‘‘exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group’’); and (2) the group is ‘‘a minority or politically powerless.’’
To date, the United States Supreme Court has recognized two quasi-suspect classes, namely, sex; see, e.g., Frontiero v. Richardson, supra, 411 U.S. 686 (plurality opinion) (what ‘‘differentiates sex from such nonsuspect statuses as intelligence or physical disability . . . is that the sex characteristic frequently bears no relation to ability to perform or contribute to society’’); and illegitimacy. See, e.g., Mathews v. Lucas, 427 U.S. 495, 505–506, 96 S. Ct. 2755, 49 L. Ed. 2d 651 (1976) (applying heightened scrutiny because, inter alia, illegitimacy ‘‘bears no relation to the individual’s ability to participate in and contribute to society’’).
For the reasons that follow, we agree with the plaintiffs’ claim that sexual orientation meets all of the requirements of a quasi-suspect classification. 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 a
re subject to heightened judicial scrutiny to ensure that those laws are not the product of such historical prejudice and stereotyping.
There is no question, therefore, that gay persons historically have been, and continue to be, the target of purposeful and pernicious discrimination due solely to their sexual orientation…The defendants also concede that sexual orientation bears no relation to a person’s ability to participate in or contribute to society, a fact that many courts have acknowledged, as well.
It is highly significant, moreover, that it is the public policy of this state that sexual orientation bears no relation to an individual’s ability to raise children; see, e.g., General Statutes § 45a-727 (permitting same sex couples to adopt children); see also General Statutes § 45a-727a (3) (finding of General Assembly that best interests of child are promoted whenever child is part of ‘‘loving, supportive and stable family’’ without reference to sexual preference of parents); to an individual’s capacity to enter into relationships analogous to marriage; see General Statutes §§ 46b-38aa through 46b- 38pp (granting same sex couples all rights and privileges afforded to opposite sex couples who enter into marriage); and to an individual’s ability otherwise to participate fully in every important economic and social institution and activity that the government regulates. See General Statutes §§ 46a-81a through 46a-81n (generally banning sexual orientation discrimination in employment, trade and professional association membership, public accommodations, housing, credit practices, state hiring practices, state licensing practices and in administration of state educational and vocational programs as well as state-administered benefits programs).
These statutory provisions constitute an acknowledgment by the state that homosexual orientation is no more relevant to a person’s ability to perform and contribute to society than is heterosexual orientation. It therefore is clear that the plaintiffs have satisfied this second and final required prong for determining whether a group is entitled to recognition as a quasisuspect or suspect class.
Whether or not this argument is likely to fly outside the liberal Northeast, the paragraphs quoted above suggest that sexual orientation could be subsumed under “gender” for purposes of marriage equality–thus shutting down the common scare tactic that if we protect “sexual orientation”, pedophilia and bestiality will become constitutional rights. After all, the only difference between Adam & Eve and Adam & Steve is…well, you know.
This could be a winning strategy for transgender rights, too. Instead of a special carve-out for “gender expression and identity”, which makes some constitutional purists anxious, why not argue that discrimination based on conformity to gender stereotypes is just another form of gender discrimination? Airline stewardesses have made this argument to overturn appearance guidelines that required them to wear makeup and lose weight.
As we celebrate the Connecticut decision, let’s not forget to help our allies in California who are fighting the ballot measure that would repeal their marriage rights. Visit No on Prop 8 to learn more.