The Connecticut Supreme Court ruled today that the state must allow same-sex couples to marry. In yet another decision with a one-vote margin,* this time 4 to 3, the court ruled in Kerrigan v Commissioner of Public Health that the already-existing civil union system in the state was not sufficient to provide equal protection of the law to gay couples.
Given that we are less than a month away from national elections, the biggest question about this decision is what impact, if any, it will have politically. Ironically, the court heard oral arguments more than a year ago, in the spring of 2007. The delay in reaching a decision had become something of a joke among lawyers. But it looks to me like the CT justices get to have the last laugh, since their timing was impeccable in terms of creating an impact. But — what kind of impact?
A big part of me wishes that they had just kept on navel gazing until the polls had closed. I have no doubt that the anti-gay forces especially in CA and other states where there is a marriage question on the ballot will have a field day with this news. Stop the queers now or [fill in horror story] will be upon us! On the other hand, maybe the news that a little vanilla state like CT now has gay marriage will reassure uncertain Californians that they won’t be too far out in left field if they let their own supreme court decision stand. Will the third time be the charm? And if so, for which side?
Within CT, the decision may give life to an effort by conservatives to win a referendum on this year’s ballot that would convene a state constitutional convention. As of August, the Connecticut Constitution Convention campaign had raised only $1,100, and I would bet that until today, not many people in or out of the state were aware of the possibility of a new constitutional convention. Oy.
Of course, it just might be that with the banking system and stock market crumbling like the twin towers, people have more important things to worry about and to base their vote on than who gets to get married in which state. Let’s hope.
In terms of legal doctrine, the key points from the decision are in the following summary:
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 classification of civil unions does not embody, the segregation of heterosexual and homosexual couples into separate institutions constitutes a cognizable harm.
We also conclude that
(1) our state scheme discriminates on the basis of sexual orientation,
(2) for the same reasons that classifications predicated on gender are considered quasi-suspect for purposes of the equal protection provisions of the United States constitution, 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, and
(3) the state has failed to provide sufficient justification for excluding same sex couples from the institution of marriage.
In other words, the court ruled that classifications based on sexual orientation were subject to the same intermediate (neither the strictest nor the most lenient) standard for judicial review as used for classifications based on sex.
It’s unclear right now when the ruling will take effect. Alex Blaze at Bilerico is reporting that CT does not have a residency requirement for marriage, though, so when it does, apparently couples from around the US can tie the knot in romantic spots like Hartford or Bridgeport. :>)
The CT decision leaves only one outstanding litigation challenge to a marriage law: the Varnum case in Iowa. Oral arguments before the Iowa Supreme Court have been scheduled for December 9. The win in CT will certainly give added ammunition in that case for the legal arguments. Politically, without anyone having to mention it, there is no way that the electoral outcome in California will not also have a huge impact in Iowa.
[* In almost every state where the state's highest court has ruled on a challenge to the exclusion of same-sex couples from marriage, the final decision has been by a one vote margin. This has been true both in the states that have granted the right to marry - MA, CA and now CT - and also in the states where it has lost - NJ and WA. In NY, there was a two vote margin, but one judge recused himself; if he had participated, the likely result would have been the same, but with a one vote difference. --- The victories and losses don't get any closer than this.]
Nan Hunter – cross posted at hunter of justice