In a historic 4-3 ruling on Friday, the Connecticut Supreme Court reversed a state ban on same-sex marriage, effective Oct. 28.
Connecticut now becomes the third state to legalize gay marriage, following Massachusetts and California.
Gay and lesbian advocates called the ruling, which cannot be appealed because the case involves the state constitution, “a turning point on gay issues,” in the words of George Chauncey, an expert on gay marriage and director of Yale’s Lesbian, Gay, Bisexual and Transgender Studies program.
Republican Gov. M. Jodi Rell has said that she will — begrudgingly — uphold the ruling. In a statement Friday, Rell said she is “firmly convinced that attempts to reverse this decision, either legislatively or by amending the state Constitution, will not meet with success.” And other Republican politicians have lambasted the Court for legislating from the bench.
Meanwhile, Democratic legislators in Hartford have called the decision “thrilling.” But they also said they worry about the decision’s timing: one month before Election Day. The month is more than enough time, state Democrats said, for several Catholic and anti-gay-marriage groups to possibly rile up Connecticut voters to have a constitutional convention to overturn the divided Court.
In language that harkened to past bans on interracial marriage and legal exclusion of blacks and women, the Court ruled that banning gay marriage, even when allowing civil unions, violates equal protection.
Justice Richard Palmer argued in the majority opinion, joined by Yale lecturer Flemming Norcott Jr., that separating heterosexual and homosexual couples into “separate institutions” is a “cognizable harm.”
“To decide otherwise would require us to apply one set of constitutional principles to gay persons and another to all others,” Palmer wrote.
The 84-page opinion in the case, Kerrigan et al v. State Commissioner of Public Health et al, pivoted on the determination that a law based on sexual orientation qualifies for heightened judicial scrutiny, Yale Law School professor Ian Ayres ’81 LAW ’86 said. Ayres, who has written a book on gay rights, wrote an amicus brief to the Court in support of overturning the ban.
Establishing that heightened scrutiny — which depended, in part, on the Court’s conclusion that sexual orientation is unrelated to a person’s ability to contribute to society — occupied the first 60 pages of the decision. Applying the standard once it was reached took just five pages.
The ruling is the first standing opinion to determine that sexual orientation is an immutable characteristic whether or not it is biological like race, said Kenji Yoshino LAW ’96, a constitutional law professor at New York University who used to teach at Yale. Yoshino has written about his own experiences as a open homosexual in his 2007 book, “Covering: The Hidden Assault on Our Civil Rights.”
“Because it’s such a deep aspect of personhood, you shouldn’t have to change it even if you could,” he said. “We don’t need, say, a gay gene in order to have gays be protected.”
Senior Justice David Borden countered in his dissent that gays are not a “quasi-suspect” class because they are not politically powerless and that the distinction between marriage and civil unions is not an “impermissible gender classification in violation of … the right to equal protection.”
In a separate dissent, which the minority said was supported by many religious and anti-gay-marriage groups, Justice Peter Zarella argued that because the “purpose” of marriage laws is a biological one — “to privilege and regulate procreative conduct,” he wrote — same-sex couples would not satisfy the same qualification for marriage.
“If the state no longer has an interest in the regulation of procreation, then that is a decision for the legislature or the people of the state and not this court,” Zarella noted.
The ruling is specific to Connecticut’s constitution and not binding on other states, but state courts do sometimes look to other states to persuade their own decisions, Yoshino said. With the addition of Connecticut, he said legalizing gay marriage starts to look like a “national trend line” instead of two outliers.
“Three’s a crowd,” he said.
FULL AND EQUAL CITIZENS
Bennett Klein, a Gay and Lesbian Advocates and Defenders attorney for the eight-couple suit against the state, said the decision has ensured that gay and lesbians couples can be treated as “full and equal citizens.”
Still, in a statement issued immediately after the ruling, Rell said Friday she disagreed with the ruling. She said the Court did not voice the opinion of the majority of Connecticut residents. Still, Rell added, she “will uphold [the decision].”
Her statements did not assuage the efforts of several religious and anti-gay-marriage groups, including the Family Institute of Connecticut and the Connecticut Catholic Conference. The groups said they will encourage citizens to vote for a constitutional convention and, subsequently, a referendum to reverse the court’s ruling. The question will appear on the ballot Nov. 4.
“If the Court will not respect its proper role to interpret, not make, law,” FIC Executive Director Peter Wolfgang said Friday, “then we will seek other remedies.”
Connecticut Republican chairman Chris Healy said gay marriage is a legislative matter and not one for the courts to decide.
Democratic state leaders say they fear there is enough time for state Republicans to organize themselves and overturn the Court’s decision. State Senate Majority Leader Martin Looney said he is concerned that the decision’s timing will give anti-gay-marriage residents “momentum.”
But many state politicians, from both parties, said that there may not be enough interested voters to pass a referendum.
Despite the ruling, same-sex couples in Connecticut will not able to gain any of the federal tax benefits heterosexual couples receive. For instance, if an individual in a same-sex marriage were to die, his or her partner would still be considered by the federal government to be a legal stranger, Chaucey said.
“This is a tremendous symbolic victory,” Chauncey said. “[But] there is still a long struggle ahead of us to equalize gay and straight relationships.”
In 2005, the Constitution State became the first state to legislatively enact civil unions without a court order, Chauncey said. The Kerrigan case was originally filed in August 2004.