Connecticut Supremes Rule in Favor of Same-Sex Marriage

From the Connecticut Law Tribune:

Whooo-hooo!

Same sex couples have a Constitutional right to marry in Connecticut, a narrowly-divided Supreme Court ruled on Friday.

Justices voted 4-3 in favor of the plaintiffs — eight gay couples who tried to obtain marriage licenses in the town of Madison — in the case known as Kerrigan vs. Commissioner of Public Health. [...]

“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 civil unions does not embody, the segregation of homosexual and heterosexual couples into separate institutions constitutes a cognizable harm,” he wrote.

The ruling went beyond legalizing same-sex marriage. Palmer wrote that “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.”

This intermediate level of constitutional protection means that courts should give added scrutiny to any law that appears to discriminate against homosexuals – and must throw out laws that don’t pass muster.

This level of court scrutiny is one rung lower than constitutional strict scrutiny of the most protected classifications, including race and religion under the state and federal constitutions.

You can read a pdf of the ruling here.

Two of the three dissenters claimed that lesbians and gays are already a super-powerful group and therefore shouldn’t be seen as a suspect class. The third dissenter took the “marriage is about heterosexual reproduction and nothing else” route.

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25 Responses to Connecticut Supremes Rule in Favor of Same-Sex Marriage

  1. Pingback: Same sex marriage victory in Connecticut

  2. 2
    Jake Squid says:

    Two of the three dissenters claimed that lesbians and gays are already a super-powerful group and therefore shouldn’t be seen as a suspect class. The third dissenter took the “marriage is about heterosexual reproduction and nothing else” route.

    So, two paranoid conspiracy theorists and one “sperm & eggs.” In CT. Wow.

  3. 3
    Decnavda says:

    And another one bites the dust!

  4. 4
    PG says:

    Argh, I am so tired of the concept of a “suspect class.” There is no suspect class, only suspect classifications. Asian-Americans are disproportionately well-educated, high-income and in positions of corporate and political power; that doesn’t make discrimination against them any less deserving of a court’s scrutiny, because race is a suspect classification. It’s a sad day when a freaking state Supreme Court judge doesn’t understand that much about con law.

    However, I do think it is more appropriate to include distinctions drawn based on the sex of oneself relative to that of one’s partner as a form of sex discrimination, which already is enumerated in the state and federal constitutions as a specifically prohibited form of discrimination, rather than basing it on a court decision that sexual orientation is a suspect classification.

    It doesn’t matter if Sally wants to marry Maria because they are sexually attracted to each other (sexual orientation) or simply because they love each other platonically and want to spend their lives together. I don’t want them to have less protection for their relationship based on whether they can be defined as having a homosexual orientation. The point is that our law should not make distinctions based on sex.

  5. 5
    james says:

    The point is that our law should not make distinctions based on sex.

    That’s a perfectly sound argument, but it’s not the only argument that was being made.

    What worries me is that courts are also using the argument that there’s a ‘right to marry’ – which isn’t in the constitution and is simply being invented. This is basically a right to discriminate against and screw over the unmarried. I worry this is going to entrench itself in jurisprudence, and it’s not very progressive if courts get to to the right place for the wrong reasons and those reasons get embedded in law. You’re going to end up with same-sex marriage, but at the price of institutionalising another form of discrimination. Whooo-hooo.

  6. 6
    PG says:

    I don’t like too much emphasis on a “right to marry” because it’s aid and comfort to the folks who worry about a slipper slope, and also to those who lie and say churches will get in trouble for refusing to perform same-sex ceremonies.

    I prefer to emphasize that not permitting same-sex marriage is a form of sex discrimination, because most people already realize that sex discrimination is morally wrong and legally impermissible. The only jump in reasoning they have to make from there is that this applies to marriage law, too. We have erased nearly all sex distinctions in the law — people who say there still are some are left pointing to bathrooms with urinals versus stalls — and this is the only major one that remains.

  7. 7
    Jake Squid says:

    What worries me is that courts are also using the argument that there’s a ‘right to marry’ – which isn’t in the constitution and is simply being invented.

    I can’t tell you how much I hate the assertion that a right isn’t in the constitution and is, thus, being made up on the spot. May I take this opportunity to highlight the Ninth Amendment?

    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

  8. 8
    PG says:

    Jake,
    May I take this opportunity to highlight how the Ninth Amendment can be used to strike down minimum age laws?

    The only argument I’ve seen for Ninth Amendment rights is the one that draws on English common law rights — the rights held by Englishmen at the time of the Founding — to fill in what the rights in question would be. And same-sex marriage was not among those.

  9. 9
    Decnavda says:

    PG-
    If the 9th does not mean what Jake claims it means, then what does it mean? If we decide it means nothing, aren’t we essentially crossing it out of the Constitution? A logical textualist interpretation of the Constitution REQUIRES that we look beyond the text when protecting rights of the people, for that is what the text clearly commands.

    An orginalist interpretation of the 9th is unwarrented, because had that been the intent, the drafters could have written the 9th to clearly limit the rights available to the people to those rights available at the time of adoption, but they did not do that. To the extent that they expected the rights referred to in the 9th to be determined by common law, the founders understood the common law to be something that evolves, expands, and changes over time. They would not have expected, in the absense of clear language, that the common law on any subject would be frozen at the time the admendment was adopted. As for the Supreme Court protecting right-libertarian ecconomic rights, they have tried that and subsequently repudiated that attempt. Right-wing Justices may in the future try again, but consider that left-wing Justices could also protect left-wing views of ecconomic rights. The fact that the text of Constitution commands that we look beyond the text itself (on certain issues, such as the rights of the people) is one very good reason it is legitimate for the Senate to investigate the judical philosophy of an appointed Justice before confirming her, and not just her judical compentency.

  10. 10
    Jake Squid says:

    PG,

    I think that your link is a specious argument at best. To give a poor example… While there is no compelling interest for the state to limit marriage to opposite sex marriage (although, in context of past social circumstances, there hasn’t been the public will to argue against), there is compelling interest for the state to determine a minimum wage.

    Decnavda has it right. If the 9th refers only to English Common Law, why wouldn’t they have just stated that. It would have been another, what? 10 words at most. Are our choices to either ignore the 9th (as you appear to argue for) or to have it create a libertarian government? I don’t think so. Fortunately, I am far from alone in this position.

    The only argument I’ve seen for Ninth Amendment rights is the one that draws on English common law rights — the rights held by Englishmen at the time of the Founding — to fill in what the rights in question would be. And same-sex marriage was not among those.

    Seriously? You’ve never seen the argument I just made? Or do you mean that the only compelling argument you’ve seen?

  11. 11
    Ampersand says:

    I agree with PG’s sex-discrimination approach. But most courts seem hesitant to go that way.

    What worries me is that courts are also using the argument that there’s a ‘right to marry’ – which isn’t in the constitution and is simply being invented.

    The issue isn’t just the right to marry, but also the right to equal treatment under the law.

    There’s no explicit constitutional right to do jumping jacks, either, but it would still be unconstitutional if Congress passed a law saying that only Mormons and Jews can legally do jumping jacks. Athiest, Christians, Buddists, Wiccans, and everyone else who isn’t a Mormon or a Jew have a constitutional right to equal treatment under the law.

  12. 12
    Lu says:

    Now, this is a perfect example of the dangers we face in turning our backs on millenia of tradition and legalizing this ungodly travesty of “marriage.” You think allowing same-sex marriage in Massachusetts is tolerable, since after all it’s just one state? Not so! Radical and dangerous notions of love and equality are like watercolor paint: before you know it, they have leaked across the border! The law of gravity will not be denied: do you think that Connecticut’s being directly below Massachusetts on the map is a coincidence? I don’t think so! New York will be the next to go (it already recognizes same-sex marriages made elsewhere! this is not an accident!), then New Jersey, and before you know it… same-sex marriage will be legal in CUBA!

    This menace must be stopped!

  13. 13
    Lu says:

    Seriously, WOO HOO! Congrats to the state of Connecticut on its big move for justice and sanity.

  14. 14
    PG says:

    Jake Squid,

    It’s the only argument that I’ve seen that describes what the Ninth Amendment rights are instead of leaving them unlimited. You say the argument I linked was “specious,” yet you offer no counter-argument to why a right to freedom of contract wouldn’t be included in the Ninth Amendment. I have no problem with saying that the Ninth Amendment leaves a great many unenumerated rights in the hands of the people. I do have a problem with not acknowledging how this leaves us with a very libertarian Constitution.

    There is a huge difference between saying something is a constitutional right and saying that a state must have a rational basis for passing a law that limits one’s freedom of action (and indeed a marriage law goes well beyond demanding freedom of action; it demands legal recognition from the state). If something is a constitutional right, the state doesn’t have to have merely a rational basis to put severe limits on it; the state must have a compelling interest, and for some rights a compelling interest and a narrowly tailored limit on the right. See, e.g., the right to be treated equally without regard for one’s race; the Court has a very limited area in which racial affirmative action programs can operate.

    At the time the Supreme Court was overturning states’ minimum wage, maximum hour and other laws limiting freedom of contract, the Court never denied that those states had rational bases for their laws. The Court sometimes even expressed sympathy for the idea that, for example, women ought to work only so many hours per week. However, because the Court believed there to be a Constitutional right to freedom of contract, that right overrode the state’s rational basis.

    So instead of simply dismissing an argument as “specious,” please lay out your explanation of why the Ninth Amendment must embrace a right to marriage but cannot embrace a right to freedom of contract.

  15. 15
    Jake Squid says:

    So instead of simply dismissing an argument as “specious,” please lay out your explanation of why the Ninth Amendment must embrace a right to marriage but cannot embrace a right to freedom of contract.

    I don’t believe that the Ninth cannot embrace a right to freedom of contract. I do believe, however, that the state has a rational basis for limiting the right to freedom of contract. I also believe that the state has a rational basis for limiting the right to marriage. Although I believe that there is no rational basis for limiting marriage to heterosexual couples.

    For example, I believe that the state has a rational basis to prohibit parents from marrying children and I believe that the state has a rational basis for prohibiting selling oneself (or one’s children) into slavery. To use a pair of obvious examples.

    I do think that we have a very libertarian constitution. Pretty much the whole, “Your right to swing your fist ends at my face,” thing. Over the ensuing 200 some-odd years, we have slowly found the limits of many of those freedoms. Restricting marriage to opposite sex pairs is not one of those limits, although we, as a nation, have believed that it is until recently. So, the right to marriage is not unlimited and neither is the right to freedom of contract.

    That’s why I think your link is a specious argument. It argues that a right is all or nothing, when that is clearly not the way rights are viewed under our traditional interpretations of the constitution.

  16. 16
    PG says:

    Jake Squid,

    Again, if a “rational basis” is sufficient to justify the law, then the law isn’t limiting a recognized Constitutional right in the first place. ALL laws have to have a rational basis. You seem to misunderstand the different levels of scrutiny the Court applies to challenged laws. If there is no rational basis to limit marriage to opposite-sex couples, then such prohibitions on same-sex marriage are unconstitutional even if there is no right to marriage. Every court that has dismissed challenges to opposite-sex-only marriage laws has proffered a rational basis for such prohibitions.

    The Supreme Court never has said that there is a right to equality regardless of sexual orientation, which is why we still have Don’t Ask, Don’t Tell and a host of laws discriminating against homosexuals. But the Court said in Romer that such laws must have a rational basis and cannot be motivated solely by animus toward homosexuals.

    Constitutional right =/= rational basis level of scrutiny.
    Constitutional right = “heightened” or greater level of scrutiny.

    If you say that there is a right to marriage, then for the state to prohibit any kind of marriage (incest, polygamy, etc.) it would have to have a compelling interest, not merely a rational basis.

  17. 17
    Jake Squid says:

    PG,

    Okay, so I keep mixing up compelling interest & rational basis. I often do that. If you can get past my mixing of the terms… Well, substitute compelling interest for rational basis in my last comment. Does that work better?

    I’m hoping that, even with my misuse of terms, that my position is understandable.

    I think, though, that my argument comes down to this:
    I do think that we have a very libertarian constitution. Pretty much the whole, “Your right to swing your fist ends at my face,” thing. Over the ensuing 200 some-odd years, we have slowly found the limits of many of those freedoms. Restricting marriage to opposite sex pairs is not one of those limits, although we, as a nation, have believed that it is until recently. So, the right to marriage is not unlimited and neither is the right to freedom of contract.

    This is why I think that the all or nothing interpretation to the 9th Amendment isn’t valid. It seems much more reasonable to me that the 9th is an, “all, with limitations” than either all or nothing.

    As an example, let’s look at our 1st Amendment right of free speech. Freedom of speech is clearly enumerated, but it is not unlimited. Why shouldn’t this also hold true for unenumerated rights? Your link argues that, if the 9th Amendment isn’t limited to English Common Law that it would mean that we not only have a right to freedom of contract, but to an essentially unlimited freedom of contract. This is not consistent with the limits on freedom of speech, which limits are not, to my knowledge, within the text of the constitution.

    It seems to me that whether or not the 9th Amendment can lead to very bad things is not relevant as to whether the 9th Amendment refers to only English Common Law or not. The fact that the 9th, if interpreted not as an inkblot, can lead to very bad things is not a valid argument, IMO, that the 9th is an inkblot.

    Is my argument now comprehensible? If not, let me know what I need to do to clarify. If so, where do you think I am mistaken? Is it that you believe that, while there is rational basis for instituting a minimum wage, there is no compelling interest to do so?

    Not that it truly matters what either one of us think as we are neither Supreme Court Justices nor in a position to appoint those Justices. But it is fun to discuss and an area where I can certainly learn a lot.

  18. 18
    PG says:

    Jake Squid,

    Your argument certainly makes a lot more sense once you stop talking about rational basis and refer to compelling interest instead. But your version of the 9th Amendment still would gut a huge number of laws and regulations that I think are worth keeping. Once there is, say, a right to sell medication, then any limitation on that right (like, say, FDA approval) would have to pass the compelling interest test. This will lead either to such challenges to laws and regulations winning and the rampant sale of snake-oil remedies that do no harm except taking money from less-educated optimists; or to a watering-down of “compelling interest” that then can be used to limit enumerated rights such as freedom of speech.

    If “compelling interest” is an accurate term to describe why it should be a crime to give state secrets to our enemies, it is not accurate to describe why employers should have to pay a minimum wage. A minimum wage is good for our society, but not necessary. Compelling interests that limit our fundamental freedoms pretty much have to go toward maintaining a civil society/ survival as a nation. I don’t think that a minimum wage is quite that vital.

  19. 19
    Jake Squid says:

    But your version of the 9th Amendment still would gut a huge number of laws and regulations that I think are worth keeping.

    That may be true, but that doesn’t support the argument that the 9th Amendment refers solely to English Common Law. If there is a real debate about what the 9th Amendment refers to, isn’t the best solution to amend the Constitution with a clarification?

    As it now stands, the 9th Amendment is what I interpret it to be when it suits the opinion of the majority of SCOTUS and what you interpret it to be when it suits the opinion of the majority of SCOTUS. It also seems like the 9th Amendment is the justification of last resort.

    In the case of marriage, I don’t think we need to invoke the 9th Amendment. The 14th Amendment would appear to cover SSM in section 1. As may well be the case for other issues we have tangentially touched upon. The 9th Amendment certainly gives us the ability to declare new rights as we come to a collective realization that something that we had not previously considered as a right should be so considered now. The 14th Amendment allows us to ensure that other issues, that we deem privileges rather than rights, are equitably distributed and enforced.

    But, to get back to the statement that I first responded to:
    What worries me is that courts are also using the argument that there’s a ‘right to marry’ – which isn’t in the constitution and is simply being invented.

    It’s the last section, “… which isn’t in the constitution…” that seems inaccurate to me as the 9th Amendment specifically states that there are unenumrated rights as well as those listed in the constitution. That the 9th Amendment can be used for bad things as well as good I will not dispute. But that statement on its own is, to me, just a bad argument since it disregards the constitution itself. If you were speaking to an audience that believed that the 9th refers only to English Common Law or wholly endorsed Bork’s inkblot theory, it would make sense. But it’s unlikely that would be your audience in a forum such as this.

  20. 20
    PG says:

    That wasn’t my statement, it was James’s.

    Also, what rights has the Supreme Court justified solely on the basis of the 9th Amendment? I can’t think of any. Indeed, the Court’s determination of what our unenumerated rights are includes an analysis of whether a claimed right is “deeply rooted in this Nation’s history and tradition,” which provides a basis for the English Common Law At the Time of the Founding reading of the 9th. See, e.g., Washington v. Glucksburg’s review of the historical prohibition on assisting suicide.

    The 9th Amendment certainly gives us the ability to declare new rights as we come to a collective realization that something that we had not previously considered as a right should be so considered now.

    There’s already a procedure for that in Article V of the Constitution.

    The 14th Amendment would appear to cover SSM in section 1.

    The 14th Amendment refers to “the privileges or immunities of citizens of the United States,” a phrase that already has a meaning, one that does not include a right to SSM. It refers to the federal rights protected under the Bill of Rights (i.e. the rights one has as a citizen of the U.S. as opposed to a citizen of a particular state). Prior to the 14th Amendment, none of the Bill of Rights applied to state governments. State government were free to establish religion, prohibit the free exercise thereof, etc.

    But a right to state recognition of one’s SSM isn’t in the Bill of Rights. If the federal Constitution were amended to explicitly prohibit discrimination on the basis of partners’ sex in marriage recognition (as I think it already implicitly prohibits through the unconstitutionality of gender distinctions in the law), then SSM would become one of “the privileges or immunities of citizens of the United States.”

  21. 21
    Jake Squid says:

    My mistake about who made the original statement. Sorry about that.

    Also, what rights has the Supreme Court justified solely on the basis of the 9th Amendment?

    Doesn’t Roe v. Wade justify the right to privacy (or the right to have an abortion) on either , “… the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people…”?

    Also, to quote from Loving v Virginia, “Marriage is one of the “basic civil rights of man…” The SCOTUS has already ruled that marriage is a right, no? What else but the 9th Amendment could justify that?

    The 14th Amendment refers to “the privileges or immunities of citizens of the United States,” a phrase that already has a meaning, one that does not include a right to SSM. It refers to the federal rights protected under the Bill of Rights (i.e. the rights one has as a citizen of the U.S. as opposed to a citizen of a particular state).

    Why wouldn’t, “… nor deny to any person within its jurisdiction the equal protection of the laws,” cover SSM? I thought that the federal rights protected under the Bill of Rights are commonly accepted to have been incorporated by the Due Process clause. I should, perhaps, have made clear that I was referring to the Equal Protection Clause when tying it to SSM.

    And getting back to Loving v Virginia, why doesn’t SSM fall under the same logic as mixed-race marriage? Why doesn’t SSM accrue the same 14th Amendment protection from the Equal Protection Clause? I’ve seen the arguments against that being the case and they’re not so different from the arguments that racists (in the present sensibility) had used in their time to justify racially discriminatory laws.

    Your last paragraph implies to me that you believe it would be constitutional to deny a driver’s license to a homosexual since driving is not recognized as a constitutional privilege or immunity. Do I understand you correctly?

    Thanks for the discussion. I’ve found it to be educational. Also, it sounds like you have more experience with these issues than I have, so if I’m boring you to death, don’t feel compelled to continue.

  22. 22
    PG says:

    Roe notes that Goldberg’s concurrence in Griswold found a right to privacy that embraced the use of contraceptives in the 9th Amendment, but did not rely on that concurrence, and of course a concurrence is not controlling law. Your quote from Roe makes clear that the Supreme Court is distinguishing its reasoning, which is based in the 14th Amendment, from the lower court’s, which is based in the 9th Amendment. Roe’s only citation to a scholarly work advocating a 9th Amendment rationale for a right to abortion is a work that grounds that rationale in precisely the English common law history that you objected to citing. (footnote 26 of the Blackmun’s majority opinion)

    In its concluding paragraph, Loving rhetorically says, “Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival,” but then goes to the real basis of the decision: “The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations.” The entire decision rests on the impermissibility of making racial distinctions in the law, not on a right to marriage.

    An argument about the “equal protection of the laws” is quite different from articulating a right to a specific state recognition. I believe that the 14th Amendment when read with the 19th Amendment does prohibit treating same-sex marriage differently than opposite-sex marriage, because such different treatment is a distinction made on the basis of sex, and therefore fails to give “equal protection of the laws.” But I would say this about ANY law that distinguished based on sex, including a law that said only male employers have the right to pay employees less than minimum wage even though I don’t think any rights other than the right to equal protection would be implicated in such a law (that is, I don’t think there’s a constitutional right to either freedom of contract or to be paid a certain wage).

    Your last paragraph implies to me that you believe it would be constitutional to deny a driver’s license to a homosexual since driving is not recognized as a constitutional privilege or immunity. Do I understand you correctly?

    Driving isn’t a right, and if one doesn’t consider discrimination based on sexual orientation to be constitutionally prohibited, then yes, it would be constitutional to do so if the state had a rational basis. If the state’s denial was based solely on animus toward homosexuals, that is not rational and would be unconstitutional.

  23. 23
    Jake Squid says:

    PG,

    Thanks for your patience. We’re clearly speaking similar, but not identical, languages which makes this discussion a bit more difficult than it might otherwise have been.

    The entire decision rests on the impermissibility of making racial distinctions in the law, not on a right to marriage.

    I agree with that, but didn’t they still declare marriage to be a right? Even though that wasn’t what they rested their decision on? Or do we ignore that because it isn’t central to the decision?

    Your quote from Roe makes clear that the Supreme Court is distinguishing its reasoning, which is based in the 14th Amendment, from the lower court’s, which is based in the 9th Amendment.

    Does it not also make it clear that they accepted the lower court’s 9th Amendment based reasoning as valid, if not optimal?

    I generally agree with what you have written here, but I still object to the idea of the 9th Amendment as Bork’s inkblot. I object to the idea that the 9th Amendment refers only to English Common Law because to specify that would have taken 10 extra words. That is not to say that that isn’t the way it has been interpreted in practice. (But then, I also disagree with the way the 2nd Amendment has been historically interpreted.)

    Although, if I understand correctly, the English Common Law process allows for discovering or creating new, as yet unknown, rights.

  24. 24
    PG says:

    I don’t think the Loving Court really declared marriage a right, given that they have almost no discussion of it — no argument of why it’s a right; no citations to prior cases that brought them to this point. That’s pretty much dicta, not a holding.

    The Roe Court didn’t actually say that the lower court was wrong to find the right in the 9th Amendment, but they don’t endorse that idea, and if they thought that there was additional support for the holding in the 9th, they probably would have said so.

    I am not sure if the 9th is an inkblot, but as stated in the link, I think it has the potential to be a can of worms, and liberals often underestimate the ways in which an expansive concept of unenumerated rights can be (and in the past, has been) used to prevent the government from protecting the health, safety and overall well-being of citizens.