Clear Definitions from Connecticut SSM

Three state high-court rulings mandating marriage equality fascinate by their interrelationships. While today's in Connecticut is not likely to transform an anti-same-sex marriage legislature or public (think Virginia or Texas), in a real sense it eventually will.

Of course, as with other state-level court decisions, Connecticut's does not set precedence for other states per se. Yet the explication of principles — particularly weighing equal rights mandates — is likely to inform the thinking elsewhere.

Several intriguing aspects of today's ruling in Hartford include:

• Laying new pontoons over the murky swamps, such as criteria for a quasi-suspect legal class
• Charging headlong into areas avoided by both Massachusetts and California high courts, such as definitions of political powerlessness
• Dismissing the faux mutability of homosexuality claims
• Most important, specifying the failures of civil unions to create equality under law or in reality

Resources: If you want to get smart fast, read the 85-page (only half type) decision and NYU Law Professor Arthur S. Leonard's same-day analysis.

I am sure we'll see suits in other cases and arguments in other states' legislatures draw on this decision. Of the three states with SSM, this one's high-court ruling was clearest and most courageous. Moreover, in defending its position to continue banning same-sex marriages, the state's case was brutal in arguments and tactics. This was no stroll for plaintiff lawyers, including some Goodridge heroines. They were Bennett C. Klein, Kenneth J. Bartschi, Mary L. Bonauto, Karen L. Loewy, Jennifer L. Levi, Karen L. Dowd, Maureen Murphy, and Renee Redman.

In some ways, the Connecticut court had extra burdens but walked on a relatively defined path. Like California with its domestic partnership and unlike Massachusetts starting from nowhere, Connecticut's legislatively established civil unions forced the justices into clear positions. That even made them define legal areas that the other two states had mumbled about only.

The progression we see relates in the first to the reality that dedication to equality has costs. That has happened many times with great issues, such as slavery and women's suffrage. In the instance of gay rights and now marriage equality, the ground is tillable in large part because the consensus of America has already arrived.

Time for the check

If you phrase a question along the lines of do you accept same-sex marriage not at all/somewhat/slightly/strongly, you'd likely get a majority of negative responses. However if you ask whether all people are created equal and deserve the same rights, there'd be all-American cheers.

Today, a third high court put the bill on the table for that widely accepted value. Even if individual citizens and legislators are not emotionally ready for SSM, the law is and it's too late to be unAmerican.

The fundamental decision in all three states was much the same. On this side we have a constitution and set of laws and regulations requiring equal rights and non-discrimination. On that side is the cultural turtle popping his head out and screeching, "Oh, no. Not homosexuals too!"

All three high courts in moderately different ways arrived at the same conclusions. Marriage is a basic human need (fundamental right in legalese), anything short is at best separate but not really equal, and there's no compelling reason to forbid SSM.

While the Goodridge decision here was certainly pioneering, it seems tepid viewing the Connecticut one. The justices in Hartford have made good use of developments since 2004. They waded right in, clarifying the vague in their own state, weighing the meaning and worth of their civil unions, and drawing on U.S. Supreme Court opinions in right cases to set the expanded rules there. That's the other kind of pioneering.

Page Notes: In the following pointers, the pages in parentheses refer to the PDF file released today. This version may disappear after 10/28/8 when it is officially released.

The overview of the ruling is that the eight SS couples to whom the state refused marriage licenses were denied substantive due process and equal protection under the state constitution. The court concluded (p. 4) "...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." Specifically:

• Connecticut discriminates on the basis of sexual orientation
• Homosexuals are a quasi-suspect class deserving heightened protection
• Connecticut can't show any reasons why SS couples should not marry

Turning the tables

This turns the old arguments on their head. If the legal assumption was that civil unions were as good as marriage, or if homosexuality were proven to be a mutable lifestyle instead of natural characteristic, or there was verifiable harm in letting SS couples wed, they would have to try a whole different approach. Instead, this decision clearly puts the anti-gay folk on the defensive. Show us the harm. Prove that separate but fairly similar is really equal. The state advocates failed the tests.

What may be most instructive elsewhere is that Assistant Attorney General Jane R. Rosenberg and her helpers were not coasting. They pulled some fairly nasty arguments. Of course, they said that there were gay-rights legal protections as well as a civil-union structure designed to provide the same rights, privileges and responsibilities as marriage. They also pulled out the enumerated protected classes in the constitution (Article First Sec. 20, and Amendments Articles V and XX). The state specifies protections against various discrimination on the basis of religion, race, color, ancestry, national origin, sex or physical or mental disability, but nothing about sexual orientation.

The plaintiffs' lawyers successfully convinced a majority of the justices that the separate structures, such as civil unions are not equal. Likewise, homosexuals are and have long been discriminated against, and deserve consideration and protection. Also, the heterosexual couples lose nothing by the pro-marriage position of expanding it, while SS couples and their children are considerably disadvantaged for no good reason.

Of course, the court dismissed some of the more fatuous claims of the anti-SSM crowd, such as the state's assertion that there's no discrimination because homosexuals can marry. They just have to marry someone of a different sex. That's a cognate to the claim that the trial court rejected that ‘"creation of the civil union for same sex couples, while retaining the status of marriage for opposite sex couples, has the effect of creating for them a legal institution of lesser status." That court disingenuously held that any feelings they were in an inferior relationship as a result were in the plaintiffs' minds. (p. 7)

Instead the high court agreed with the plaintiffs that They contend "...that marriage is not simply a term denominating a bundle of legal rights. Rather, they contend that it is an institution of unique and enduring importance in our society, one that carries with it a special status." This court added, "We agree with the plaintiffs that, despite the legislature’s recent establishment of civil unions, the restriction of marriage to opposite sex couples implicates the constitutional rights of gay persons who wish to marry a person of the same sex." (p. 8) The majority concluded that this relegated homosexual couples to an inferior status, unworthy of marriage. (p. 9)

Time for the check

We are likely to see this in other states. Many have equal-rights legislation, some with specific gay-rights laws. They too will have to align what they say with what they do. Also, those with civil unions or domestic partnerships may be in for some shocks. The issue they will face will be similar to Connecticut's with its more advanced civil union ploy. As the ruling put it, "...the legislature nonetheless created an entirely separate and distinct legal entity for same sex couples even though it readily could have made those same rights available to same sex couples by permitting them to marry." To grind in this point, the justices cited Brown v. Board of Education with:

We do not doubt that the civil union law was designed to benefit same sex couples by providing them with legal rights that they previously did not have. If, however,
the intended effect of a law is to treat politically unpopular or historically disfavored minorities differently from persons in the majority or favored class, that law cannot evade constitutional review under the separate but equal doctrine.

That's where tempers are likely to flare in such cases elsewhere. Legislators may well say as they did in the 1950s and 1960s, "Look at all we've done for them. Aren't they ever satisfied?"

Who deserves protection?

When it came to suspect classes, this court was pretty brave too, as well as innovative. The majority noted that Connecticut courts had never fully defined what would constitute a suspect class deserving heightened protection under law. Many courts would have sidestepped the issue, but they hopped right in, drawing on a series of U.S. Supreme Court decisions. (p. 17)

Under more testing from the defendants (the state), the justices rolled around in this issue. They all concurred that homosexuals has a long history of overt and covert discrimination. That wasn't enough. Other key components would be whether someone's sexual orient ion limited the ability to contribute to society, whether homosexuality was changeable or innate, as well as whether they were politically powerless (thus needing some help).

They quickly disposed of the issue of contributions to society — not applicable (p.23). Also, these justices were not buying into the anti-gay arguments that homosexuals has to prove the negative, that just maybe some homosexuals can and do shift orientation. Instead, the majority concluded, "Although we do not doubt that sexual orientation—heterosexual or homosexual— is highly resistant to change, it is not necessary for us to decide whether sexual orientation is immutable in the same way and to the same extent that race, national origin and gender are immutable, because, even if it is not, the plaintiffs nonetheless have established that they fully satisfy this consideration." (p. 26) Instead, they found the obvious, that sexual orientation was the group's defining characteristic to consider heightened protection (p. 27)

Perhaps the most legally and intellectually intriguing (as well as the longest) section of the ruling was whether homosexuals lacked political power (from p. 28 to p. 47). The majority tears apart the arguments of those who say homosexuals have gotten elected to public office, they advance cases such as this, and otherwise have lots of clout. Instead the justices draw more apt parallels with women and racial minorities who likewise made advances but still quality for federal and state protections because discrimination against them remains very real.

This section likely got such in-depth treatment because it is pivotal to such arguments. Legislators and judges in other states may well perk up reading this, recognize weaknesses in their locales' positions and see the future. There's really not much they can do short of providing marriage equality to bring equal-rights mandates into line with one-man/one-woman marriage limits.

By this point, the defense's arsenal was reduced to the harm bullet. What compelling reason could Connecticut offer to say SSM was bad for different-sex marriage? Basically, there isn't one, but there is a counterpoint. (pp. 57-58)

The justices could find no alteration of the substantive nature of marriage by SSM. "In other words, limiting marriage to opposite sex couples is not necessary to preserve the rights that those couples now enjoy." However, they found the lack of community acceptance and similar factory for SS couples denied marriage "is likely to have an especially deleterious effect on the children of the same sex couples" as well as on the couples themselves.

They went a step farther, nothing the arguments that religious autonomy would be threatened (p. 59). Churches and similar religious institutions will not have perform SSMs. Also, because "...marriage is a state sanctioned and state regulated institution, religious objections to same sex marriage cannot play a role in our determination of whether constitutional principles of equal protection mandate same sex marriage." (p 60)

Such silly panicked claims did not work in Canada or Spain or Massachusetts. They were cut off in Connecticut as well.

The Connecticut justices freely cited and applied famous cases, such as Loving v. Virginia, reveling in the new relevance. Likewise, in their conclusion, they cited Lawrence v. Texas in reference to the framers of the U.S. Constitution with the statement that they "knew [that] times can blind us to certain truths, and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the [c]onstitution endures, persons in every generation can invoke its principles in their own search for greater freedom.’’ (p. 65)

This was a great legalistic day and a great day for American freedoms. It wasn't so much as the third state legalized marriage equality. This court spoke loudly and clearly. Most Americans deep down believe in freedom that does not harm others. This decision should be a welcome and affirming one. Some people will need more processing than others on its implications.

---

Tags: massmarrier, Connecticut, same sex marriage, Supreme Court, Leonard Link