Supreme Court Legalizes Same-Sex Marriage
By THOMAS B. SCHEFFEY
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. When they were turned down, the plaintiffs filed suit in 2004, claiming that the state’s ban on same-sex marriage was discriminatory and therefore unconstitutional.
Justice Richard N. Palmer wrote for the four-justice majority that in light of the historical discrimination of gay men and lesbians, and because Connecticut’s civil union law lacks the status of a real marriage, “segregation of heterosexual and homosexual couples into separate institutions constitutes a cognizable harm.”
Only two other states, Massachusetts and California, allow gay people to marry.
The Connecticut decision came about 17 months after the justices had heard oral arguments, a delay that had prompted a few observers to wonder whether political considerations were involved in the release of the decision. However, other court experts said that such a time lag between arguments and the decision was not unusual.
But the 85-page majority decision, and three accompanying dissents, indicates just how much the Connecticut justices wrestled with the decision. Palmer noted that the trial court, in ruling against the plaintiffs, had stated that Connecticut had already given them the right to enter into civil unions, which carried most of the rights of marriage.
But Palmer wrote that wasn’t enough. “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. “We do not reach the plaintiffs’ claims implicating a stricter standard of review,” Palmer wrote.
He was joined by Justices Joette Katz, Flemming L. Norcott Jr., and Appellate Court Justice Lubbie Harper, who was sitting by designation. Chief Justice Chase T. Rogers recused herself from the case because an amicus brief was filed by a member of her husband’s law firm.
‘Extraordinary Political Power’
Justices David Borden and Christine Vertefeuille vigorously dissented from the view that same-sex couples are either a quasi-suspect or suspect class entitled to heightened constitutional protection against discriminatory laws. Doing so unduly minimizes “the unique and extraordinary political power of gay persons in this state,” Borden wrote, and is neither a sound nor prudent interpretation of the state’s Equal Protection clause.
Justice Peter T. Zarella, dissenting alone, eloquently and passionately expounded on the historic and procreative rationale underlying a legal distinction between heterosexual and homosexual couples.
He disagreed with the court’s assessment that the essence of marriage is “a loving, committed relationship between two adults and that the sole reason that marriage has been limited to one man and one woman is society’s moral disapproval of, or irrational animus toward gay persons.”
Rather, he said, the fundamental purpose of marriage laws is to “privilege and regulate procreative conduct.” For that reason, he said, people who enter into same-sex relationships are not “similarly situated” as heterosexual couples and therefore cannot legally claim discrimination.
“The ancient definition of marriage as the union of one man and one woman,” wrote Zarella, “has its basis in biology, not bigotry.”•
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