A ‘Sweeping’ Ruling in Connecticut: Sizing up Kerrigan v. Commissioner

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Earlier today, the Connecticut Supreme Court, in a 4-3 opinion, overturned the state’s ban on same-sex marriage. It makes Connecticut the third state — after Massachusetts and California — to legalize same-sex marriage. Because the ruling relied on the Connecticut state constitution, it can’t be appealed to the U.S. Supreme Court. Click here for the AP story; here for the NYT story; here for the Hartford Courant story, here for the opinion itself and here, here, and here for the dissents.

We blogged about the California ruling when it came down in May (click here); though we missed out on the Massachusetts ruling back in 2004, as we were but a twinkle in the blogosphere’s eye.



So what do we say about the Connecticut ruling? For that, we checked in with Susan Schmeiser at the University of Connecticut School of Law.

Schmeiser told us that although the court was asked to decide a narrow issue — whether civil unions offered the same benefits and rights benefits as marriage — it did so in sweeping fashion. “It’s really not just about marriage, but on what it means for a group to be recognized by the state.” She calls the decision “more than symbolic,” even though it won’t lead to a host of tangible benefits for gays and lesbians, as many of those were already provided by the state’s civil union law.

From the majority opinion:

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.

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.

Insofar as gay persons play a role in the political process, it is apparent that their numbers reflect their status as a small and insular minority. It recently has been noted that, of the more than one-half million people who hold a political office at the local, state and national level, only about 300 are openly gay persons. . . No openly gay person ever has been appointed to a United States Cabinet position or to any federal appeals court, or served in the United States Senate, and only two currently serve in the United States House of Representatives. . . . Gay persons also lack representation in the highest levels of business, industry and academia. For example, no openly gay person heads a Fortune 500 company. . . . By any standard, therefore, gay persons ‘‘remain a political underclass in our [state and] nation.’’

From Justice David Borden and Justice Christine Vertefeuille’s dissent:

At this point in our state’s history, however, and without any appropriate fact-finding on the issue, I am unable to say that it is widely considered to be less than or inferior to marriage, or that it does not bring with it the same social recognition as marriage. It is simply too early to know this with any reasonable measure of certitude.

From Justice Peter Zarella’s dissent:

The ancient definition of marriage as the union of one man and one woman has its basis in biology, not bigotry. 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. Therefore, I conclude that the equal protection provisions of the state constitution are not triggered. I further conclude that there is no fundamental right to same sex marriage.

LB readers, we’d love to hear your thoughts.