Tuesday, March 21, 2006

Hartford SSM Hotfoot

Today 43 years ago, Alcatraz prison closed. This year, it's possible that it could be a day of liberation for same-sex couples in Connecticut (block that trope!). Eight couples denied marriage licenses had their say in Superior Court today.

Note: The odd taxonomy of the court system includes both Superior and Supreme courts. Today's hearing was before the former and may be appealed to the latter by either side. The Supreme Court does not have to hear an appeal. So, the result of today's case hearing can be final...or not.

With typical American hunger for liberty, the 16 were not mollified by the state's civil union law. Two years in the making, Elizabeth Kerrigan et al vs. State of Connecticut, Department of Public Health et al is on stage.

For background, head to GLAD's marriage-equality page. It has such things as the case documents including the Dark Side's. There's a dummy's guide in the FAQ format. The recent GLAD response to other filings is available in PDF (126KB). It formed the basis of today's argument.

The state has hauled in a portmanteau filled with every hoary, moldy legal cliché its lawyers could find. Amusingly enough, the Family Institute of Connecticut is trying to get involved in the case, even though they don't have a horse in the race. They think the state is not protesting enough.

Among the arguments that GLAD is making for the plaintiffs before Judge Patty Jenkins Pittman are:
  • Civil unions are not equal to marriage, either in rights or in social recognition.
  • Excluding same-sex couples from marriage denies them equal treatment under law.
  • In passing civil unions, the legislature "faltered by enshrining marriage discrimination rather than taking the simple step of ending it."
  • Claiming that marriage in the state has traditionally been one man/one woman is a circular argument. Gays can't marry because gays can't marry.
  • The attorney general has "conceded that laws excluding same-sex couples from marriage are subject to judicial review."
  • The liberty interest to marry one person of your choice is held in common by all citizens.
  • The state "Supreme Court has also placed marriage as among the protected liberty interests in personal decisions that should be protected from undue government interference. Long before the idea of fundamental rights or strict scrutiny took hold in American law, a Supreme Court decision acknowledged that “the right to contract marriage is one of “the rights to ‘life, liberty and the pursuit of happiness’ protected by the Connecticut constitution..."
  • Marriage is a fundamental right, without regard to procreation, as support by state and U.S. laws and court decisions. The friends of the court (amici) arguments for this "do not reflect Connecticut law, but rather reflect their own ideological and moral preferences."
  • The slippery slope argument (SSM to polygamy) fails as it did when it was used in interracial cases. Legal claims "to end polygamy or to abolish age or consanguinity provisions have not advanced in the last fifty-seven years."
  • The state discriminates by sex in marriage. "The injury imposed in being deprived of a liberty or opportunity because one is a man or because one is a woman is not vitiated because of formal symmetry between men and women as groups, and nothing in Connecticut law so limits the right to be free from sex discrimination."
  • The state discriminated by sexual orientation in marriage. "With Alice in Wonderland reasoning...(t)he definitional statute -- ostensibly neutral as to sexual orientation -- has an intended and disparate impact on gay people, thereby imposing a burden on the State to show that the civil union law would have passed without the marriage limitation. Second, the Supreme Court has long recognized that the state constitution is capacious enough to embrace suspect or quasi-suspect classes..."
  • The state has failed to show that putting an extra check box or line on state forms meets the requirement of "the overbearing concern for efficiency and efficacy."
  • The requirement for uniformity with federal and other states' laws is baseless. "The State explains neither the benefits of uniformity nor the harm that would come from lack of uniformity." "Moreover, the uniformity justification cannot be rational because the State cannot explain why uniformity is important for one aspect of its marriage eligibility laws (i.e., limiting marriage to a man and woman), but not important in all other aspects of its marriage laws, such as permitting marriages of first cousins."
  • Claims that kids are best raised in a family with two heterosexual biological parents are unfounded, an opinion that is "a consensus among every authoritative child welfare association to have addressed the issue..."
There's no way from outside to predict which GLAD issues the Superior Court judge will affirm or reject. These complex cases always seem to bring their share of puzzlements after the fact. We confess that we were impressed with GLAD's filing. The state aguments seem pretty flimsy.

We can be sure that there are likely to be appeals.

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