And Connecticut Makes Three: The State's Highest Court Declares Same-Sex Marriage Ban Unconstitutional

Connecticut has now become the third state to authorize same-sex couples to marry on precisely the same terms - and with the same name - as opposite-sex couples.

The state's highest court held in Kerrigan v. Commissioner of Public Health that the Connecticut State Constitution does not permit the state to exclude same-sex couples from civil marriage. The decision was closely split - 4-3 - and garnered three separate dissents. Significantly, the court found a constitutional violation even though Connecticut authorizes civil unions - a legal status that offers identical benefits and obligations to civil marriage.

In this column, I'll examine prior law, the recent ruling, and the argument it embraced - the argument that civil unions are not enough, and marriage itself is necessary for equality.

Connecticut Law Before the Kerrigan Ruling

For the first several years of the same-sex marriage controversy in the United States, Connecticut took no position. It did not pass a so-called mini-DOMA - that is, a state law modeled after the federal law defining marriage as a union between a man and a woman. Nor did it amend its constitution to ban same-sex marriage.

In 2005, however, the state legislature both granted and took something away from gays and lesbians in the same stroke. On one hand, it adopted a civil union law, which permitted same-sex couples to enter into a marriage-equivalent status that differed from marriage only in name. On the other hand, in the same law - and at the insistence of Republican Governor Jodi Rell -- the legislature officially defined "marriage" to be a union between a man and a woman.

In adopting such a law, Connecticut joined Vermont in offering the meaningful legal recognition embodied in a civil union, while denying the right to marry. New Hampshire and New Jersey later joined suit.

The Plaintiffs and the Ruling in Kerrigan

Kerrigan is typical in many ways of same-sex marriage cases. The plaintiffs are eight same-sex couples, each in the epitome of a loving, committed relationship, who were denied marriage licenses by a town clerk and sued. Four of the couples had entered into Connecticut civil unions. The other four were holding out for marriage.

The question for the Connecticut Supreme Court, then, was whether an identical, alternative status is sufficient to comply with the state's constitution. The majority answered that question in the negative, ruling that the exclusion of gays and lesbians from civil marriage is unconstitutional because it constitutes discrimination on the basis of sexual orientation.

The plaintiffs made a variety of constitutional arguments. For instance, they argued that the due process clause protects the right of same-sex couples to marry. They also contended that permitting individuals only to marry someone of the opposite gender constitutes sex discrimination. The court did not reach either of these arguments, however, focusing exclusively on the question of sexual orientation discrimination.

Like the U.S. Supreme Court, Connecticut's highest court asks, when evaluating a claim that a certain type of discrimination violates constitutional equal protection, whether the class of persons that is negatively affected by a given law is a "suspect" or "quasi-suspect" class - that is, a class of persons that has historically faced discrimination and that also meets other criteria. If a class of persons is granted "suspect" status, the court applies "strict scrutiny" in assessing the strength of the state's interest and whether the state could have pursued that interest via alternative means. If it counts as quasi-suspect, the court applies a lesser, but still demanding level of scrutiny called "intermediate" scrutiny.

Here, the Connecticut court held that separating persons by homosexual sexual orientation creates at least a "quasi-suspect" class, and thus, an intermediate level of scrutiny applies. In applying intermediate scrutiny, moreover, the Connecticut court held the state had offered an insufficient justification to survive such heightened scrutiny.

Why the Court Deemed Sexual Orientation To Define, At a Minimum, a Quasi-Suspect Class

The Connecticut court's decision to treat sexual orientation as a protected characteristic for equal protection purposes is significant. That argument has been made in many other same-sex marriage cases, but mostly rejected. (It was, however, recently accepted by the California Supreme Court in a similar case, which I discuss in greater detail below.)

The Connecticut constitution enumerates eight characteristics defining classes that automatically receive heightened scrutiny, and sexual orientation is not among them. The court observed, however, that the list has never been treated as exhaustive. Additional categories may receive similar treatment if they satisfy four criteria for heightened protection: (1) a history of invidious discrimination; (2) a characteristic that bears no relation to one's ability to perform or contribute to society; (3) immutability (the inability to change or opt out of the characteristic); and (4) political powerlessness. In a long and well-reasoned opinion, the majority found that gays and lesbians satisfied each of these criteria. It concluded that they were thus entitled to quasi-suspect status and the intermediate level of scrutiny that goes along with it.

Once the court settled on heightened scrutiny for sexual orientation discrimination, the case was basically over. Had the court ruled otherwise, the state would only have had to offer a "plausible policy" justification for the refusal to grant "marriage" to same-sex couples, rather than restricting them to civil unions. That's not a difficult standard for any governmental entity to meet. Under the intermediate scrutiny standard, however, the state must offer an important - even an "exceedingly persuasive" - justification for the discriminatory law. And in this context, that may be virtually impossible to do.

Unlike other states defending themselves in similar cases, Connecticut did not rely on arguments about marriage as a setting for procreation, or about the best interests of children supposedly being served by being raised by heterosexual parents. The state relied, instead, on a simple appeal to tradition: Same-sex couples, it argued, should be excluded from marriage because it was traditionally reserved for heterosexual couples.

While it is in some ways admirable that the state avoided overbroad declarations about the purpose of marriage and unsupported claims about the interests of children, the justification with which it was left didn't amount to much. Tradition alone, the court held, is not enough to justify discrimination against a class of persons that has suffered a history of invidious discrimination. After all, the tradition may merely be a tradition of discrimination that does not deserve any deference.

The court thus concluded, in the final analysis, that the law's exclusion of same-sex couples from "marriage" was unconstitutional discrimination, despite the availability and tangible comparability of civil unions. The state Supreme Court is the final arbiter of state constitutional questions, and the ruling is thus not capable of being appealed. Same-sex marriages can begin taking place in the state on October 28. (The Governor, despite her on-the-record opposition, has promised to uphold the ruling.)

The National Landscape: Where Connecticut Fits

Prior to this ruling, only two states - California and Massachusetts - permitted same-sex couples to marry, both by virtue of judicial rulings holding that equal marriage rights were constitutionally required. (Same-sex marriage is also legal in a number of foreign countries, including Spain, Belgium, Canada, the Netherlands, and South Africa.) Virtually every other state (exceptions: Rhode Island and New Mexico) expressly bans celebration or recognition of same-sex marriage, either by statute or constitutional amendment.

But to understand the import of the Connecticut ruling, we need to consider not only the jurisdictions that permit full-fledged marriage to same-sex couples, but also those that offer a marriage-alternative such as the civil union. At issue in Kerrigan was whether there is a constitutionally significant difference between marriage and a special status for same-sex couples with a different name, but with identical rights and obligations.

Marriage and Civil Union: Separate but Equal Legal Statuses?

The nation's first civil union law was adopted in 2000 by the Vermont legislature after the state's highest court ruled in Baker v. State that same-sex couples could not constitutionally be deprived of the common benefits of marriage. The court expressly gave the state legislature the choice between extending civil marriage rights to same-sex couples or creating an as-of-yet-unidentified alternative that would provide the same tangible benefits, even if it operated under a different label. The legislature thus invented the civil union as a constitutionally-sufficient alternative to civil marriage. (It is perhaps ironic that a status with such a short history now garners the approval of a majority of voters in most polls.)

But virtually all same-sex marriage litigation is brought under state constitutions (to avoid favorable rulings being overridden by the U.S. Supreme Court, which is the final arbiter of federal constitutional law). Thus, the constitutional questions - whether any form of legal recognition for same-sex couples is required and, if so, whether an alternative legal status, rather than civil marriage, is sufficient - need to be asked and answered in each state.

Twenty-seven states have amended their constitutions to prohibit same-sex marriage and, in most of them, marriage-equivalent statuses. (Three more states will consider such amendments in the November 2008 election.) In those states, the same-sex marriage question has essentially been pre-empted; litigating a state constitutional challenge would be futile since the constitution expressly permits the state to exclude same-sex couples from civil marriage.

In the remaining states, however, the constitutionality of the full or partial exclusion of same-sex couples from marriage and its benefits is ripe for determination by state courts. In states where the question has already been litigated, the results have been varied.

In New York, Washington, and Maryland, the state's highest court has ruled that the legislature may constitutionally exclude same-sex couples from marriage, and its benefits. In other words, in those states, the legislature need not open civil marriage or provide an alternative status to same-sex couples.

In other states, however, the state's highest court has held that while marriage is not constitutionally required, a legal alternative with the same benefits must be offered. Take New Jersey as an example. In Lewis v. Harris, the state's highest court held that while the state constitution did not permit the legislature to deprive same-sex couples of the rights and obligations of marriage ("the rights of marriage"), but it did not need to provide access to the "right to marriage." The court threw the question of compliance to the "crucible of the democratic process," from which a civil union law emerged in 2006. New Jersey thus joined Vermont in offering a statutory alternative to marriage that has the constitutional imprimatur of the state's highest court.

Finally, there are a dozen states in which the constitutional question has not yet been asked - or, in the case of Iowa, which has a same-sex marriage case pending, answered.

When Civil Unions Are Not Good Enough: State Supreme Court Decisions Requiring the Name, Not Just the Benefits, of Marriage

In each of the three states that now authorize same-sex marriage - Massachusetts, California, and Connecticut - the state's highest court has specifically rejected the possibility of a constitutionally-sufficient alternative to marriage for same-sex couples.

In Massachusetts, the first state to authorize same-sex marriage, the Supreme Judicial Court first ruled, in Goodridge v. Department of Public Health, that same-sex couples had a constitutional right to marry. But its holding did not distinguish the form of marriage from its substance, emphasizing both the tangible and intangible benefits of marriage.

The state Senate thus tried to circumvent the ruling by introducing a civil union law. It then sought an advisory opinion from the same court as to whether such a law would satisfy the constitutional mandate articulated in Goodridge.

A majority of the Massachusetts justices joined an opinion that said no - only civil marriage could remedy the constitutional violation inflicted by excluding same-sex couples. It reached this conclusion in part based on the observation that the "dissimilitude between the terms 'civil marriage' and 'civil union' are not innocuous," but rather assign "same-sex, largely homosexual, couples to second-class status." (For additional analysis, please see my prior column on the Massachusetts decision.)

In California, the second state to authorize same-sex marriage, the state's highest court reached the same basic conclusion in its 2008 ruling in In re Marriage Cases (which I discussed, writing with Linda McClain, in this column and this one). There, the state had a domestic partnership law that had been amended and expanded in 2005 to be virtually identical to the civil union law in Vermont - and thus virtually identical to civil marriage. That domestic partners had to be cohabiting at the time they entered into the status was the only meaningful difference from marriage. Thus, when the California Supreme Court considered the constitutionality of the ban on gay marriage, the state already offered a very similar alternative to same-sex couples. The litigation centered, then, on the constitutional sufficiency of such an alternative.

The California court concluded, however, that the name - or at least the withholding of the name - means something. The right to marry as protected by the state constitution is a "couple's right to have their family relationship accorded dignity and respect equal to that accorded other officially recognized families." That equal dignity and respect is undermined by making the name turn on the identity of the parties.

Thus, the California court reasoned, the state legislature could not constitutionally comply with the state constitutional guarantees of due process and equal protection with a separate status, even if it was equal. (As in Connecticut, the California court granted heightened scrutiny to classifications on the basis of sexual orientation.)

Why Courts Rejecting Civil Unions Have Been Right to Do So

Connecticut's ruling is similar to the ones in Massachusetts and California, though in subtle ways it is also stronger. Connecticut's civil union law did grant same-sex couples identical rights and benefits to married couples, unlike California's domestic partnership law, which had one tangible difference. And Connecticut's ruling on constitutional sufficiency is marginally stronger than that of Massachusetts, since it came as part of a fully-litigated controversy rather than as an advisory opinion. But these distinctions are minor; it's fair to treat all three of these cases as standing for the same principle: When it comes to marriage, separate is not equal.

The civil union operates as a pragmatic step toward marriage equality - one that secures tangible benefits for same-sex couples despite the present political climate. Polls often show majority support for civil unions, but not for same-sex marriage. Despite the practical benefits, however, the stigma and second-class nature inherent in an alternative status is inescapable. That is a reality that Massachusetts, California and, now, Connecticut have rightly faced up to - and acknowledged with rulings ensuring the name of marriage is accessible to all.

It's hard to know how many states must recognize same-sex marriage before we have a critical mass, but three is a good place to start.