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And Connecticut Makes Three (Washington Blade)
Friday, October 17, 2008
By: Lou Chibbaro Jr.
The Connecticut Supreme Court ruled last week that same-sex couples have the right to marry under the state constitution and that a civil unions law enacted by the state three years ago fails to provide gay people with the "status and significance" of marriage. Under the historic 4-3 ruling, Connecticut is poised to join Massachusetts and California as the third state to allow same-sex couples to marry.
The court ruling sharply rebukes arguments by state officials, including Republican Gov. Jodi Rell, that same-sex marriage was not necessary to provide gay couples equal rights and protections under the state’s constitution because the civil unions provided all the rights and benefits of marriage.
“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,” the majority ruling states.
The court’s ruling says that sexual orientation “constitutes a quasi-suspect classification for purposes of the equal protection provisions of the state constitution.” Such a finding, according to the ruling, subjects laws discriminating against gay people in the state to “heightened or intermediate judicial scrutiny” and opened the way for the court to declare the state’s ban on same-sex marriage unconstitutional.
“Today’s victory fulfills the hopes and dreams of gay and lesbian families to live as full and equal citizens in Connecticut,” said Bennet Klein, an attorney for Gay & Lesbian Advocates & Defenders (GLAD), the gay rights litigation group that filed a lawsuit challenging the state law banning same-sex marriage.
“Marriage is unparalleled in the dignity, respect and protection it gives families,” Klein said.
But Peter Wolfgang, executive director of the Family Institute of Connecticut, said the ruling “usurped democracy in Connecticut and redefined marriage by judicial force.”
He called on voters to approve an initiative on the Connecticut ballot in November that would convene a state constitutional convention, which Wolfgang said could be used to amend the constitution to ban same-sex marriage.
Ballot measures asking whether such a convention should be held appear on the ballot automatically every 20 years under state law. State officials said the timing of the ballot measure this year is coincidental to the marriage controversy.
GLAD filed its lawsuit in 2004 on behalf of eight same-sex couples. The Connecticut court system named the case Kerrigan, Elizabeth, et el., v. Connecticut Department of Health, et al.
According to a weekend poll by the University of Connecticut's Center for Survey Research & Analysis, 53 percent of state residents support the ruling, while 42 percent do not.
Rell issued a statement saying that she disagrees with the ruling, but would uphold it.
“I continue to believe that marriage is the union of a man and a woman,” she said. “I also believe that the historic civil union law that I proudly signed in 2005 is equitable and just.”
The governor said she doesn’t believe the court’s decision reflects the views of most people in Connecticut.
“However, I am also firmly convinced that attempts to reverse this decision — either legislatively or by amending the state Constitution — will not meet with success,” she said. “I will therefore abide by the ruling.”
Impact on California?
Nan Hunter, a Georgetown University law professor and gay rights attorney, said she is concerned that the timing of the Connecticut Supreme Court decision could hurt efforts by gay advocacy groups to defeat ballot measures seeking to ban gay marriage in California, Arizona and Florida.
She said that coming less than a month before the November election, anti-gay groups might use the ruling forcing the legalization of gay marriage in Connecticut to stir up fear in the other three states as well as in Connecticut, where voters will be deciding on whether to call a state constitutional convention.
“I would expect that the right wing and anti-[gay] marriage groups will try to play this decision up as a source of fear for voters in those other states,” Hunter said. “That’s what they did on the national level with the Massachusetts decision in 2004,” she said, referring to the Massachusetts high court’s ruling legalizing same-sex marriage in that state.
“The economic news will be much more on the voters’ minds this year on the national level,” Hunter said. “But in the three states where there is a marriage issue on the ballot that they are going to be voting on one way or the other, I think the risk is that it will frighten voters in those states and could make it tougher for pro-gay advocates to win those elections.”
“Personally, I wish they had just waited a little longer,” Hunter said of the Connecticut Supreme Court justices. “They already waited a year and a half. They could have waited a month longer until after the election.”
Conservative groups that oppose gay rights criticized the Connecticut court decision as yet another example of how unelected judges overstepped their bounds by imposing gay marriage on another state.
“It’s ridiculous to imagine that the framers of the Connecticut Constitution could have even conceptualized the oxymoronic notion of ‘gay marriage,’ much less considered it a ‘constitutional right,’” said Matt Barber, an official with the Lynchburg, Va., based Liberty Alliance Action and Liberty Council and associate dean for Liberty University School of Law.
“Why do we even need the legislative and executive branches of government if we are going to allow the courts to brazenly legislate from the bench as a self-ordained Judiciocracy,” Barber said.
He called on conservative activists to redouble their efforts help John McCain defeat Barack Obama in the presidential election.
“Despite hollow platitudes to the contrary, the overwhelming body of evidence indicates that Barack Obama is a strong supporter of ‘gay marriage’ and that he would appoint judges who believe the constitution changes with the times,” he said.
Opponents of same-sex marriage immediately called on state residents to vote “yes” on the constitutional convention referendum, which asks whether a convention should be called to consider across-the-board changes in the document.
State officials noted the ballot measure’s timing is purely coincidental to the gay marriage issue and part of an existing clause in the state constitution that calls for voters to decide every 20 years whether a constitutional convention should be held.
But gay marriage opponents urged voters to approve a constitutional convention for the specific purpose of creating a state initiative and referendum process to overturn the Supreme Court ruling on same-sex marriage. Some gay marriage opponents also proposed that the constitutional convention be used to amend the constitution to explicitly ban same-sex marriage.
The state’s constitution, as currently written, does not provide for initiatives and referenda on any issue. It does allow the state legislature to amend the constitution, but the process requires a three-fourths majority vote in each of the legislature’s two chambers.
An alternate process allows for the approval of constitutional amendments by a majority vote in both legislative chambers, but such a vote must take place in two successive legislative sessions. The vote in the second session must follow an election of legislators, which means the second vote would take place at least two years after the first.
“We are confident that the legislature would not do this,” said Anne Stanback, executive director of Love Makes a Family, a Connecticut group that has advocated for same-sex marriage rights.
Stanback said her group was reasonably certain that the Connecticut Legislature would have passed a same-sex marriage bill in 2009. Gay rights advocates have lobbied the legislature to pass a marriage bill before and after the legislature passed the civil unions law.
“We weren’t sure if the governor would sign it,” Stanback said of a same-sex marriage bill. Same-sex marriage rights advocates also weren’t certain if there were enough votes in the legislature to override a veto by the governor.
Stanback said that’s why she and other gay rights advocates believe Friday’s ruling was so important.
“Thanks to the Supreme Court’s momentous decision,” she said, “Connecticut is now a fairer, more equitable place for all.”
The vast majority of states do not allow gay marriage. Voters in 27 states have taken the extra step of approving constitutional amendments to reinforce that prohibition.
Civil unions and a similar arrangement, known as domestic partnerships, are offered to same-sex couples in Vermont, New Jersey, New Hampshire, Oregon, Hawaii, Maine, Washington and the District of Columbia.
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