Lead Opinion
Opinion
The issue presented by this case is whether the state statutory prohibition against same sex marriage violates the constitution of Connecticut. The plaintiffs, eight same sex couples, commenced this action, claiming that the state statutory prohibition against same sex marriage violates their rights to substantive due process and equal protection under the state constitution. The trial court rendered summary judgment in favor of the defendant state and local officials upon determining that, because this state’s statutes afford same sex couples the right to enter into a civil union, which affords them the same legal rights as marriage, the plaintiffs had not established a constitutionally cognizable harm. We conclude that, in light of the history of pernicious discrimination faced by
The record reveals the following undisputed facts and procedural history. On August 24, 2004, the plain
While the plaintiffs’ action was pending in the trial court, the legislature passed Public Acts 2005, No. 05-10, now codified at General Statutes § 46b-38aa et seq. (civil union law), which established the right of same sex partners to enter into civil unions and conferred on such unions all the rights and privileges that are granted to spouses in a marriage. See General Statutes § 46b-38nn;
Thereafter, the parties filed cross motions for summary judgment. In support of the plaintiffs’ motion, they claimed, inter alia, that this state’s statutes governing marriage and civil unions violate the due process and equal protection provisions of the state constitution because they deprive gay persons of the fundamental right to marry the person of their choice, and because they discriminate on the basis of both sex and sexual orientation. With respect to their due process claim, the plaintiffs maintained that, because marriage is a fundamental right, the state bears the burden of demonstrating that any abridgement of the right has been narrowly tailored to effectuate a compelling state interest, a burden which, the plaintiffs contended, the state cannot meet.
With respect to their equal protection claims, the plaintiffs maintained that, by limiting marriage to the union of a man and a woman, our statutory scheme impermissibly segregates on the basis of sex in violation of the express prohibition against such treatment contained in article first, § 20, of the state constitution, as amended by article five of the amendments. The plaintiffs contended that this state’s statutes contravene the state constitutional prohibition against sex discrimination because those statutes preclude a woman from doing what a man may do, namely, marry a woman, and preclude a man from doing what a woman may do, namely, marry a man. The plaintiffs also maintained that our laws barring same sex marriage impermissibly discriminate against gay persons, who, the plaintiffs claimed, constitute a suspect class or, at the least, a quasi-suspect class, under constitutional principles of
In support of the defendants’ motion for summary judgment, they asserted that the plaintiffs had failed to demonstrate that they have suffered any harm as a result of the statutory bar against same sex marriage because, under the civil union law, gay persons are entitled to all of the rights that married couples enjoy. The defendants also maintained that this state’s ban on same sex marriage does not deprive the plaintiffs of a fundamental right because, since ancient times, marriage has been understood to be the union of a man and a woman, and only such rights that are “deeply rooted in this [njation’s history and tradition . . . and implicit in the concept of ordered liberty” are deemed to be fundamental. (Citations omitted; internal quotation marks omitted.) Washington v. Glucksberg,
The defendants also asserted that our statutory scheme does not discriminate on the basis of sex because, inter alia, it does not single out men or women as a class for disparate treatment, the touchstone of any sex discrimination claim. Those laws also do not discriminate on the basis of sexual orientation, the
Finally, the defendants asserted that, even if the statutory definition of marriage as an opposite sex union does discriminate on the basis of sexual orientation, nothing in the text or history of article first, § 1, and article first, § 20, as amended by articles five and twenty-one of the amendments, supports the conclusion that the drafters of those provisions intended to extend special protection to gay persons as a suspect or quasi-suspect class. On the contrary, the defendants maintained that, because sexual orientation is not one of the eight categories enumerated in article first, § 20, of the state constitution, as amended, namely, religion, race, color, ancestry, national origin, sex, and physical or mental disability, it must be presumed that that provision does not afford enhanced protection to persons on the basis of their sexual orientation. The defendants finally maintained that our statutory scheme does not run afoul of the state constitution’s equal protection provisions because it bears a rational relationship to a legitimate state purpose, the test that the defendants asserted is applicable to the determination of whether that scheme passes muster under the equal protection provisions of the state constitution.
The trial court granted the defendants’ motion for summary judgment and denied the plaintiffs’ motion for summary judgment. Kerrigan v. Commissioner of Public Health,
On appeal,
I
DECISION OF THE TRIAL COURT
We first address the plaintiffs’ contention that the trial court improperly granted the defendants’ motion for summary judgment on the ground that the plaintiffs had failed to demonstrate any legally cognizable or actionable harm by virtue of the fact that the legislature had established two separate and distinct classifications for couples who wish to be recognized by the law, one limited to same sex couples and one limited to opposite sex couples. The trial court predicated its determination on the fact that a couple who enters into a civil union has the same legal rights under state law as a couple who enters into a marriage. The court reasoned that the difference in labels afforded marriage and civil unions is not, in itself, sufficient to trigger an analysis of the constitutionality of that statutory scheme as applied to same sex couples.
The plaintiffs challenge the trial court’s conclusion that the distinction between marriage and civil unions is merely one of nomenclature. 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. The plaintiffs therefore contend that their claim of unequal treatment cannot be dismissed solely because same sex couples who enter into a civil union enjoy the same rights under state law as married couples. The plaintiffs also claim that we must consider the legislature’s decision to create civil unions for same sex couples in the context of the historical condemnation and discrimination that gay
A cognizable constitutional claim arises whenever the government singles out a group for differential treatment. The legislature has subjected gay persons to precisely that kind of differential treatment by creating a separate legal classification for same sex couples who, like opposite sex couples, wish to have their relationship recognized under the law. Put differently, the civil union law entitles same sex couples to all of the same rights as married couples except one, that is, the freedom to marry, a right that “has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men [and women]” and “fundamental to our very existence and survival.” Loving v. Virginia,
Especially in light of the long and undisputed history of invidious discrimination that gay persons have suffered; see part V A of this opinion; we cannot discount the plaintiffs’ assertion that the legislature, in establishing a statutory scheme consigning same sex couples to civil unions, has relegated them to an inferior status, in essence, declaring them to be unworthy of the institution of marriage. In other words, “[b]y excluding same-sex couples from civil marriage, the [s]tate declares that it is legitimate to differentiate between their commitments and the commitments of heterosexual couples. Ultimately, the message is that what same-sex couples have is not as important or as significant as ‘real’ marriage, that such lesser relationships cannot have the name of marriage.”
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. See, e.g., Brown v. Board of Education,
GENERAL PRINCIPLES
Certain general principles govern our review of the plaintiffs’ state constitutional claim. First, “[t]he constitutionality of a statute presents a question of law over which our review is plenary. ... It [also] is well established that a validly enacted statute carries with it a strong presumption of constitutionality, [and that] those who challenge its constitutionality must sustain the heavy burden of proving its unconstitutionality beyond a reasonable doubt. . . . The court will indulge in every presumption in favor of the statute’s constitutionality .... Therefore, [w]hen a question of constitutionality is raised, courts must approach it with caution, examine it with care, and sustain the legislation unless its invalidity is clear.” (Citation omitted; internal quotation marks omitted.) State v. McKenzie-Adams,
Moreover, “[i]t is beyond debate that federal constitutional and statutory law establishes a minimum national standard for the exercise of individual rights and does not inhibit state governments from affording higher levels of protection for such rights.” (Emphasis in original; internal quotation marks omitted.) State v. Morales, 232 Conn. 707, 716,
Furthermore, we are mindful that state “[constitutional provisions must be interpreted within the context of the times. . . . ‘We must interpret the constitution in accordance with the demands of modem society or it will be in constant danger of becoming atrophied and, in fact, may even lose its original meaning.’ ... [A] constitution is, in [former United States Supreme Court] Chief Justice John Marshall’s words, ‘intended to endure for ages to come . . . and, consequently, to be adapted to the various crises of human affairs.’ . . . [McCulloch] v. Maryland,
Finally, in State v. Geisler,
Ill
EQUAL PROTECTION ANALYSIS GENERALLY
“[T]he concept of equal protection [under both the state and federal constitutions] has been traditionally
“This court has held, in accordance with the federal constitutional framework of analysis, that ‘in areas of social and economic policy that neither proceed along suspect lines nor infringe fundamental constitutional rights, the [e]qual [protection [c]lause is satisfied [as] long as there is a plausible policy reason for the classification, see United States Railroad Retirement [Board] v. Fritz,
Although the federal constitution does not expressly enumerate any suspect classes, the United States Supreme Court has identified three such classifications, namely, race, alienage and national origin. Cleburne v. Cleburne Living Center, Inc., supra,
This court also has determined that, for purposes of the state constitution, “[the] two-tier analysis of the law of equal protection . . . that distinguishes only between legislation requiring strict scrutiny, which typically fails to pass constitutional muster, and legislation requiring a rational basis, which typically does pass, is not sufficiently precise to resolve all cases. Legislation that involves rights that may be significant, though not
“Situations triggering . . . intermediate review, other than sensitive classifications relating to stereotypes or disadvantaged minorities, have usually involved a significant interference with liberty or the denial of benefits considered to be vital to the individual.” (Citations omitted.) Id., 641-42. We therefore apply the same three-tiered equal protection methodology that is applied under the federal equal protection clause for purposes of our state constitution.
The defendants contend that the plaintiffs’ equal protection claim does not satisfy two threshold equal protection principles. Specifically, the defendants contend, first, that same sex couples are not similarly situated
With respect to their first claim, the defendants assert that the plaintiffs are not similarly situated to opposite sex couples, thereby obviating the need for this court to engage in an equal protection analysis, “because the conduct that they seek to engage in—marrying someone of the same sex—is fundamentally different from the conduct in which opposite sex couples seek to engage.” We disagree. It is true, of course, that the plaintiffs differ from persons who choose to marry a person of the opposite sex insofar as each of the plaintiffs seeks to marry a person of the same sex. Otherwise, however, the plaintiffs can meet the same statutory eligibility requirements applicable to persons who seek to marry, including restrictions related to public safety, such as age; see General Statutes § 46b-30; and consanguinity. See General Statutes § 46b-21. The plaintiffs also share the same interest in a committed and loving relationship as heterosexual persons who wish to marry, and they share the same interest in having a family and raising their children in a loving and supportive environment. Indeed, the legislature itself recognized the overriding similarities between same sex and opposite sex couples when, upon passage of the civil union law, it granted same sex couples the same legal rights that married couples enjoy. We therefore agree with the California Supreme Court and conclude that the defendants’ contention that same sex and opposite sex couples are not similarly situated clearly lacks merit. “[B]oth [same sex and opposite sex couples] consist of pairs of individuals who wish to enter into a formal, legally binding and officially recognized, long-term family relationship that affords the same rights and privileges and imposes the same obligations and responsibilities. Under these cir
IV
QUASI-SUSPECT CLASSIFICATIONS UNDER THE STATE CONSTITUTION
Although this court has indicated that a group may be entitled to heightened protection under the state constitution because of its status as a quasi-suspect class, we previously have not articulated the specific criteria to be considered in determining whether recognition as a quasi-suspect class is warranted. The United States Supreme Court, however, consistently has identified two factors that must be met, for purposes of the federal constitution, if a group is to be accorded such status. These two required factors are: (1) the group has suffered a history of invidious discrimination; see United States v. Virginia,
To date, the United States Supreme Court has recognized two quasi-suspect classes, namely, sex; see, e.g., Frontiero s. Richardson, supra,
Because of the evident correlation between the indicia of suspectness identified by the United States Supreme Court and the issue of whether a class that has been singled out by the state for unequal treatment is entitled to heightened protection under the federal constitution, we conclude that those factors also are pertinent to the determination of whether a group comprises a quasi-suspect class for purposes of the state constitution. It bears emphasis, however, that the United States Supreme Court has placed far greater weight—indeed, it invariably has placed dispositive
It is evident, moreover, that immutability and minority status or political powerlessness are subsidiary to the first two primary factors because, as we explain more fully hereinafter, the United States Supreme Court has granted suspect class status to a group whose distinguishing characteristic is not immutable;
STATUS OF GAY PERSONS AS A QUASI-SUSPECT CLASS
For the reasons that follow, we agree with the plaintiffs’ claim that sexual orientation meets all of the
A
History of Discrimination
The defendants do not dispute that gay persons historically have been, and continue to be, the target of
There is no question, therefore, that gay persons historically have been, and continue to be, the target of purposeful and pernicious discrimination due solely to their sexual orientation. We therefore turn to the second required factor, namely, whether the sexual orientation of gay persons has any bearing on their ability to participate in society.
B
Whether Sexual Orientation Is Related to a Person’s Ability to Participate in or Contribute to Society
The defendants also concede that sexual orientation bears no relation to a person’s ability to participate in or contribute to society, a fact that many courts have acknowledged, as well. See, e.g., Watkins v. United States Army,
It is highly significant, moreover, that it is the public policy of this state that sexual orientation bears no relation to an individual’s ability to raise children; see, e.g., General Statutes § 45a-727 (permitting same sex couples to adopt children); see also General Statutes § 45a-727a (3) (finding of General Assembly that best interests of child are promoted whenever child is pait of “loving, supportive and stable family” without reference to sexual preference of parents); to an individual’s capacity to enter into relationships analogous to marriage; see General Statutes §§ 46b-38aa through 46b-38pp (granting same sex couples all rights and privileges afforded to opposite sex couples who enter into marriage); and to an individual’s ability otherwise to participate fully in every important economic and social institution and activity that the government regulates.
C
Immutability of the Group’s Distinguishing Characteristic
A third factor that courts have considered in determining whether the members of a class are entitled to heightened protection for equal protection purposes is whether the attribute or characteristic that distinguishes them is immutable or otherwise beyond their control. See, e.g., Bowen v. Gilliard, supra,
On a number of occasions, in connection with its consideration of a claim that a particular group is entitled to suspect or quasi-suspect class status, the United States Supreme Court has considered whether the group’s distinguishing characteristic is immutable. See, e.g., Mathews v. Lucas, supra,
A number of courts that have considered this factor have rejected the claim that sexual orientation is an immutable characteristic.
Sexual intimacy is “a sensitive, key relationship of human existence, central to . . . the development of human personality . . . .” Paris Adull Theatre I v. Slaton,
In view of the central role that sexual orientation plays in a person’s fundamental right to self-determination, we fully agree with the plaintiffs that their sexual orientation represents the kind of distinguishing charac
D
Whether the Group Is a Minority or Lacking in Political Power
The final factor that bears consideration is whether the group is “a minority or politically powerless.” (Internal quotation marks omitted.) Bowen v. Gilliard, supra,
1
We commence our analysis by noting that, in previous cases involving groups seeking heightened protection under the federal equal protection clause, the United States Supreme Court described this factor without reference to the minority status of the subject group, focusing instead on the group’s lack of political power. See, e.g., Massachusetts Board of Retirement v. Murgia, supra,
When this approach is applied to the present case, there is no doubt that gay persons clearly comprise a distinct minority of the population.
2
The defendants nevertheless maintain that gay persons should not receive recognition as a quasi-suspect group because they are not politically powerless. In light of this claim, which represents the defendants’ primary challenge to the plaintiffs’ contention that they are entitled to quasi-suspect class status, and because some courts have applied that component of the suspectness inquiry to deny gay persons protected status even though they represent a minority of the population, we consider the defendants’ contention.
In support of their claim, the defendants rely primarily on this state’s enactment of the gay rights and civil union laws, which, of course, were designed to provide equal rights for gay persons, and which undoubtedly reflect a measure of political power. The defendants also rely on the fact that several state legislators in Connecticut are openly gay. From the defendants’ standpoint, these significant advances undermine the plaintiffs’ claim that gay persons are so lacking in political power that they are entitled to heightened judicial protection.
The plaintiffs contend that this test does not require proof that gay persons are wholly lacking in political influence but, rather, that the discrimination to which they have been subjected has been so severe and so persistent that, as with race and sex discrimination, it is not likely to be remedied soon enough merely by resort to the majoritarian political process. In support of their assertion that they do not wield sufficient political power to obviate the need for heightened judicial protection, the plaintiffs note that gay persons are demonstrably less powerful than African-Americans and
We commence our analysis by considering what the term “political powerlessness” actually means for purposes of the suspectness inquiry. Unfortunately, “in most cases the [United States] Supreme Court has no more than made passing reference to the ‘political power’ factor without actually analyzing it. See., e.g., Bowen v. Gilliard, [supra,
This conclusion is compelled by United States Supreme Court jurisprudence. We commence our review of that jurisprudence with Frontiero v. Richardson, supra,
The court nevertheless recognized the significant political advances that had been made toward gender equality, observing that “Congress ha[d] . . . manifested an increasing sensitivity to sex-based classifications. In [Title] VII of the Civil Rights Act of 1964, for example, Congress expressly declared that no employer, labor union, or other organization subject to the provisions of the [a]ct shall discriminate against any individual on the basis of race, color, religion, sex, or national origin. Similarly, the Equal Pay Act of 1963 provides that no employer covered by the [a]ct shall discriminate . . . between employees on the basis of sex. And § 1 of the [e]qual [r]ights [a]mendment, passed by Congress on March 22, 1972, and submitted to the legislatures of the [s]tates for ratification, declares that [e] quality of rights under the law shall not be denied or abridged by the United States or by any [s]tate on account of sex.” (Internal quotation marks omitted.) Id., 687.
In light of these significant protections, the court also acknowledged that, “when viewed in the abstract, women do not constitute a small and powerless minority.” (Emphasis added.) Id., 686 n.17. The court further observed, however, that, in large part because of past
Women have continued to make significant political progress in the years following the court’s decision in Frontiero.
It is apparent, then, that the political powerlessness aspect of the suspectness inquiry does not require a showing that the group seeking recognition as a protected class is, in fact, without political power. As we have explained, women were not politically powerless in an absolute sense when they first were accorded heightened constitutional protection in the early 1970s; indeed, prior to the recognition of women as a quasi-suspect class, gender discrimination had been prohibited statutorily—much like discrimination on the basis of sexual orientation has been barred by statute in this state—and Congress had adopted a joint resolution that caused the proposed equal rights amendment to the United States constitution to be presented to the states for ratification. Today, women, like African-Americans, continue to receive heightened protection under the equal protection clause even though they are a potent and growing political force. The term “political powerlessness,” therefore, is clearly a misnomer. We apply this facet of the suspectness inquiry not to ascertain
First, the discrimination that gay persons have suffered has been so pervasive and severe—even though their sexual orientation has no bearing at all on their ability to contribute to or perform in society—that it is highly unlikely that legislative enactments alone will suffice to eliminate that discrimination. As we previously have noted; see part V A of this opinion; prejudice against gay persons is long-standing and deeply rooted, in this state and throughout the nation. In fact, until recently, gay persons were widely deemed to be mentally ill; see footnote 27 of this opinion and accompanying text; and their intimate conduct was subject to criminal sanctions. See, e.g., Bowers v. Hardwick, supra,
That prejudice against gay persons is so widespread and so deep-seated is due, in large measure, to the fact that many people in our state and nation sincerely believe that homosexuality is morally reprehensible. Indeed, homosexuality is contrary to the teachings of more than a few religions.
Beyond moral disapprobation, gay persons also face virulent homophobia that rests on nothing more than feelings of revulsion toward gay persons and the intimate sexual conduct with which they are associated. Unfortunately, “[h]omosexuals are hated, quite irrationally, for what they are . . . .” High Tech Gays v. Defense Industrial Security Clearance Office, supra,
Insofar as gay persons play a role in the political process, it is apparent that their numbers reflect their status as a small and insular minority. It recently has been noted that, of the more than one-half million people who hold a political office at the local, state and national level, only about 300 are openly gay persons. Andersen v. King County, supra,
In this state, no openly gay person ever has been elected to statewide office, and only five of the 187 members of the state legislature are openly gay or lesbian.
In recent years, our legislature has taken substantial steps to address discrimination against gay persons. These efforts are most notably reflected in this state’s gay rights law; see General Statutes §§ 46a-81a through 46a-81r; which broadly prohibits discrimination against a person because of his or her “preference for heterosexuality, homosexuality or bisexuality, having a history of such preference or being identified with such preference . . . .”
Notwithstanding these provisions, however, the legislature expressly has stated that the gay rights law shall not be “deemed or construed (1) to mean the state of Connecticut condones homosexuality or bisexuality or any equivalent lifestyle, (2) to authorize the promotion of homosexuality or bisexuality in educational institutions or require the teaching in educational institutions of homosexuality or bisexuality as an acceptable lifestyle, (3) to authorize or permit the use of numerical goals or quotas, or other types of affirmative action programs, with respect to homosexuality or bisexuality in the administration or enforcement of the [state’s antidiscrimination laws], (4) to authorize the recognition of or the right of marriage between persons of the same sex, or (5) to establish sexual orientation as a specific and separate cultural classification in society.”
Finally, although state law provides certain protections to gay persons, the United States Supreme Court has explained that such protective legislation, while indicative that the subject group possesses at least some political power; see, e.g., Cleburne v. Cleburne Living Center, Inc., supra,
As this court has observed, the gay rights law “was enacted in order to protect people from pervasive and invidious discrimination on the basis of sexual orientation.”
Gay persons, moreover, continue to “face an uphill battle in pursuing political success. The awareness of public hatred and the fear of violence that often accompanies it undermine efforts to develop an effective gay political identity. [Gay persons] are disinclined to risk
With respect to the comparative political power of gay persons, they presently have no greater political power—in fact, they undoubtedly have a good deal less such influence—than women did in 1973, when the United States Supreme Court, in Frontiero, held that women are entitled to heightened judicial protection. Frontiero v. Richardson, supra,
Finally, gay persons clearly lack the political power that African-Americans and women possess today. See, e.g., High Tech Gays v. Defense Industrial Security Clearance Office, supra,
In his dissenting opinion, Justice Borden expresses his agreement that gay persons satisfy the first three prongs of the suspectness inquiry, that is, they have suffered a deplorable history of invidious discrimination, their sexual orientation is a distinguishing characteristic that defines them as a discrete group, and a person’s sexual orientation bears no relation to a person’s ability to contribute to society. Injustice Borden’s view, however, gay persons are not entitled to heightened protection, even though they meet the first three criteria, because the political power of gay persons overrides those three considerations.
Our fundamental disagreement with Justice Borden stems from his assertion that the holding of Frontiero according women protected status under the federal constitution in 1973 is “irrelevant” to the state constitu
In other words, as one commentator has explained, “[because] the term [political] ‘powerlessness’ is not self-defining . . . [t]here must be some yardstick of political power to which the power of [gay persons] can be compared.
“The only logical standard of comparison is other . . . quasi-suspect classes such as . . . women. If [women were] sufficiently powerless to be [accorded] . . . quasi-suspect [class status], then logically [gay persons] must be, at a minimum, more politically powerful than these groups if they are in fact too powerful to be a . . . quasi-suspect class.
“The point, of course, is not that the courts should tolerate gender discrimination. The point is that the courts are applying a very different standard to [gay persons] than they have been applying to other [protected] groups. No court has been willing to evaluate the political power of women ... by the same standard that they have applied to [gay persons. Although] the equal protection of the laws does not require the same result for all groups seeking [quasi-suspect] class status, surely it requires that courts apply the same standards to all who seek judicial protection.” (Emphasis in original.) E. Gerstmann, supra, c. 4, pp. 81-83.
This is precisely the flaw in Justice Borden’s analysis. Because gay persons, like women, fully satisfy the first three criteria of the suspectness inquiry, it would be manifestly unfair to the plaintiffs, and to gay persons generally, to ignore or dismiss the analysis and result of Fronliero, which correctly concluded that women were not so politically powerful as to obviate the need for heightened judicial scrutiny of gender-based classifications. A brief recapitulation of the political status of women when Fronliero was decided makes it crystal clear that, upon application of the standard applied by the court in Fronliero, gay persons have the same right to protected status under the state constitution that women have been accorded under the federal constitution.
Furthermore, by the time Frontiero was decided in 1973, Congress already had passed comprehensive anti-discrimination legislation in recognition of the long history of discrimination to which women had been subjected. See Frontiero v. Richardson, supra,
Because Justice Borden places so much emphasis on what he perceives to be the future of gay marriage in this state; see part I C 1 of Justice Borden’s dissenting opinion (quoting certain selected legislators voicing optimism about future of gay marriage in Connecticut); we look to the status of the equal rights amendment when Frontiero was decided in 1973. As we already have noted, the amendment passed overwhelmingly in Congress: the vote in the United States Senate in favor of the amendment was 84 to 8, with 7 abstaining; 118 Cong. Rec. 9598 (1972); and the vote in the United States House of Representatives was 354 to 24, with 51 abstaining. 117 Cong. Rec. 35,815 (1971). As one scholar has observed about that vote, “[t]he triumph of the [equal rights amendment] in Congress was complete, deliberate, and overpowering, an outcome clearly attributable to a congressional perception that a national consensus had been achieved.” G. Steiner, supra, c. 2, p. 26. “When the [e]qual [r]ights [a]mendment passed the Senate on March 22, 1972, it appeared to be riding an irresistible high. The Judiciary Committee had reported the resolution without amendment on a 15-1 vote. Hugh Scott of Pennsylvania, Republican leader in the Senate, then solicited and got an endorsement from President [Richard M.] Nixon. ‘Throughout [twenty-one] years,’ the president wrote, ‘I have not altered my belief that equal rights for women warrant a constitutional guarantee—and I therefore continue to favor the enactment of the constitutional amendment to achieve this goal.’ ” Id., p. 22. Thus, “[a] high level of optimism [for its ultimate approval] seemed well warranted. . . . House passage had been by nearly fifteen to one and Senate passage by better than ten to one. Congressional action reflected a bipartisan effort .... Unless experienced and politically sensitive fed
Supporters of the equal rights amendment were therefore all but certain that it soon would become law. For example, United States Senator Birch Bayh, the principal proponent of the amendment in the Senate, expressed his view that the amendment would be ratified “with dispatch.” (Internal quotation marks omitted.) E. Shanahan, “Equal Rights Amendment Is Approved by Congress,” N.Y. Times, March 22,1972, p. Al. Moreover, in his testimony before the Senate, Senator Bayh explained that more than one half of the members of the Senate had sponsored the equal rights amendment, and that “[b]oth the Citizens’ Advisory Council on the Status of Women, created by President [John F.] Kennedy, and the President’s Task Force on Women’s Rights and Responsibilities, created by President Nixon, have recommended in strongest terms approval of the amendment.” 118 Cong. Rec. 8900 (1972). Senator Bayh also identified more than fifty major civic and professional organizations that supported the amendment, including the American Association of College Deans, American Association of University Women, American Civil Liberties Union, American Jewish Congress, American Newspaper Guild, American Nurses Association, Common Cause, Council for Christian Social Action, United Church of Christ, International Association of Human Rights Agencies, International Brotherhood of Painters and Allied Trades, International Brotherhood of Teamsters, International Union of United Automobile, Aerospace and Agricultural Implement Workers, National Association of Colored Women, National Education Association, National Organization for Women and United
Thus, in stark contrast to the proposed gay marriage bill on which Justice Borden relies in concluding that gay persons in this state are too politically powerful to warrant heightened constitutional protection, the equal rights amendment sailed through Congress and very nearly was ratified by the requisite number of states. As we have explained, moreover, the equal rights amendment would have provided women with the broadest and most comprehensive constitutional protection possible. Even though it appeared certain that the amendment would promptly receive final approval, and despite the political power manifested by such a feat, the court in Frontiero nevertheless concluded that women were entitled to heightened protection under the federal equal protection clause. Despite this precedent, Justice Borden attributes overriding political power to gay persons in this state—power that he concludes disqualifies them from heightened protection under the state constitution—on the basis of a few statements of support for a gay marriage bill that was not even submitted to a vote in the legislature because its supporters knew that, as in the past, the bill had no
In sum, because, in 1973, (1) women constituted a majority of the population, (2) they possessed enormous potential electoral strength due to their majority status, (3) they were protected by comprehensive federal antidiscrimination legislation, and (4) imminent ratification of the equal rights amendment to the federal constitution appeared certain, there can be no question that women possessed more political power nationally in 1973 than gay persons currently possess in this state.
We note, finally, Justice Borden’s assertion that we are “alone in mandating gay marriage as a matter of state constitutional law in the presence of . . . a . . . civil union [law]” and an indication of “support for gay marriage through legislation.” This assertion, like Justice Borden’s suggestion that the political power of gay persons in this state is somehow unique is inaccurate. For example, in California, which has the equivalent of a civil union statute, the legislature twice passed a gay marriage bill, but, on each occasion, the bill was vetoed by the governor. See J. Tucker, “Schwarzenegger Vetoes Same-Sex Marriage Bill Again” (October 13, 2007), available at http://www.sfgate.com/ cgi-bin/article.cgi?f=/c/a/2007/10/13/BAT7SPC72.DTL. Thus, under the standard on which Justice Borden relies, gay persons in California have demonstrated far greater political power than gay persons in this state. Nevertheless, following the vetoes of the gay marriage legislation in California, the California Supreme Court concluded that, under that state’s constitution, gay persons, as a suspect class, cannot be barred from marrying the same sex person of their choice. See In re Marriage Cases, supra,
4
In sum, the relatively modest political influence that gay persons possess is insufficient to rectify the invidious discrimination to which they have been subjected for so long. Like the political gains that women had made prior to their recognition as a quasi-suspect class, the political advances that gay persons have attained afford them inadequate protection, standing alone, in view of the deep-seated and pernicious nature of the prejudice and antipathy that they continue to face. Today, moreover, women have far greater political power than gay persons, yet they continue to be accorded status as a quasi-suspect class. See Breen v. Carlsbad Municipal Schools, supra,
VI
ADDITIONAL RELEVANT CONSIDERATIONS UNDER GEISLER
Although we conclude that gay persons meet each of the four factors identified by the United States Supreme Court for determining whether a group is entitled to heightened judicial scrutiny as a quasi-suspect class, we are obliged, under this court’s state constitutional jurisprudence, also to consider the extent to which any of the considerations identified by this court in State v. Geisler, supra,
A
Textual Analysis
Article first, § 20, of the Connecticut constitution provides in relevant part that “[n]o person shall be denied the equal protection of the law . . . .” This provision prohibits the state from treating similarly situated persons differently without sufficient reason to do so. See
The defendants maintain, however, that the remaining language of article first, § 20, as amended by article twenty-one of the amendments, supports their contention that gay persons do . not comprise a quasi-suspect class. That language provides that no person shall “be subjected to . . . discrimination in the exercise or enjoyment of his or her civil or political rights because of religion, race, color, ancestry, national origin, sex or physical or mental disability.” Conn. Const., amend. XXI. The defendants contend that, because sexual orientation is not included in the list of suspect classes enumerated in article first, § 20, as amended, sexual orientation cannot comprise a quasi-suspect class for purposes of the state constitution’s equal protection provisions. We reject this claim for the reasons that we expressed previously in part III of this opinion.
B
Decisions of This Court and the Appellate Court
This court never has considered whether classifications that discriminate against gay persons are subject
C
Persuasive Federal Precedent
When interpreting our state constitution, it is appropriate to consider relevant federal precedent. “We employ this precedent for guidance and analogy [in construing our own constitution, however, only] when the federal authorities axe ‘logically persuasive and well-
As the defendants correctly assert, the vast majority of federal circuit courts that have considered the issue have concluded that sexual orientation is not a suspect or quasi-suspect classification, and, consequently, legislation that classifies on the basis of sexual orientation is subject to rational basis review.
Because Bowers was so widely viewed as disqualifying gay persons from recognition as a suspect or quasi-suspect class, in the wake of Bowers, courts gave only cursory consideration to claims by gay persons that statutes that discriminate on the basis of sexual orientation are subject to enhanced judicial scrutiny. Thus, as one court has noted, “given [Bowers’] sanction of such a severe curtailment of the liberty of [gay persons, it is not surprising that] the issue of whether states should or must permit marriage between same-sex partners has only recently come into public debate.” In re Marriage Cases,
Five years ago, however, in Lawrence v. Texas, supra,
The court in Lawrence also explained that “[t]he foundations of Bowers have sustained serious erosion from . . . [two] decisions” that were decided after Bowers, namely, Planned Parenthood v. Casey,
“ ‘These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the [fourteenth [a]mend*235 ment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the [s]tate.’ . . .
“Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do. The decision in Bowers would deny them this right.” (Citations omitted.) Id., 573-74.
The court continued: “The second post-Bowers case of principal relevance is Romer .... There the [c]ourt struck down class-based legislation directed at homosexuals as a violation of the [e]qual [protection [c]lause. Romer invalidated an amendment to Colorado’s [c]onstitution which named as a solitary class persons who were homosexuals, lesbians, or bisexual either by ‘orientation, conduct, practices or relationships’ . . . and deprived them of protection under state antidiscrimination laws. We concluded that the provision was ‘bom of animosity toward the class of persons affected’ and further that it had no rational relation to a legitimate governmental purpose.” (Citations omitted.) Id., 574.
Lawrence thereafter expressly endorsed the following portion of Justice John Paul Stevens’ dissent in Bowers: “ ‘Our prior cases make two propositions abundantly clear. First, the fact that the governing majority in a [s]tate has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither histoiy nor tradition could save a law prohibiting miscegenation from constitutional attack. Second, individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of “liberty” protected by the [d] ue [p]rocess [c]lause of the [f]ourteenth [a]mend
Lawrence represents a sea change in United States Supreme Court jurisprudence concerning the rights of gay persons. To a very substantial degree, Lawrence undermines the validity of the federal circuit court cases that have held that gay persons are not entitled to heightened judicial protection because, as we have explained, the courts in those cases relied heavily— and in some cases exclusively—on Bowers to support their conclusions. See Witt v. Dept. of the Air Force,
Finally, we reject the defendants’ contention that, in Romer v. Evans, supra,
In sum, although federal case law is nearly unanimous in concluding that gay persons are not a suspect or quasi-suspect class, those cases ultimately are not persuasive because they rely so heavily on Bowers v. Hardwick, supra,
D
Persuasive Sister State Precedent
The majority of sister state courts that have addressed the issue also have concluded that gay persons are not a suspect or quasi-suspect class. See, e.g., Conaway v. Deane, supra,
In three of the cases concluding that gay persons do not constitute a protected class, the courts did so without applying the four-pronged test used by the United States Supreme Court for determining whether a group qualifies as a suspect or quasi-suspect class. In one such case, State v. Limon, supra,
In a second case, Hernandez v. Robles, supra,
The final case to conclude that gay persons are not a suspect or quasi-suspect class without performing the four-pronged equal protection analysis is Dean v. District of Columbia, supra,
Although the opinion of the California Supreme Court in In re Marriage Cases, supra,
For the foregoing reasons, we are not persuaded by the logic or analysis of the courts that have declined to grant suspect or quasi-suspect status to gay persons. We are persuaded, rather, by the California Supreme Court in In re Marriage Cases, supra,
E
Economic and Sociological Considerations
We address, finally, the sixth Geisler factor, which requires us to consider the public policy implications of recognizing gay persons as a quasi-suspect class under our state constitution. See State v. Diaz,
First, granting same sex couples the right to marry “will not alter the substantive nature of the legal institution of marriage; same-sex couples who choose to enter into the relationship with that designation will be subject to the same duties and obligations to each other, to their children, and to third parties that the law currently imposes [on] opposite-sex couples who marry.” In re Marriage Cases, supra,
Second, although “retention of the limitation of marriage to opposite-sex couples is not needed to preserve the rights and benefits of opposite-sex couples, the exclusion of same-sex couples from the designation of marriage works a real and appreciable harm [on] same-
For this reason, the ban on same sex marriage is likely to have an especially deleterious effect on the children of same sex couples. A primary reason why many same sex couples wish to marry is so that their children can feel secure in knowing that their parents’ relationships are as valid and as valued as the marital relationships of their friends’ parents. “Excluding same-sex couples from civil marriage will not make children of opposite-sex marriages more secure, but it does prevent children of same-sex couples from enjoying the immeasurable advantages that How from the assurance of a stable family structure in which the children will be reared, educated, and socialized.”
Third, because of the long history of discrimination that gay persons have faced, there is a high likelihood that the creation of a second, separate legal entity for same sex couples will be viewed as reflecting an official state policy that that entity is inferior to marriage, and that the committed relationships of same sex couples are of a lesser stature than comparable relationships of opposite sex couples. As a consequence, “retaining the designation of marriage exclusively for opposite-sex couples and providing only a separate and distinct designation for same-sex couples may well have the effect of perpetuating a more general premise [namely] . . . that gay individuals and same-sex couples are in some respects ‘second-class citizens’ who may, under the law, be treated differently from, and less favorably than, heterosexual individuals or opposite-sex couples.” In re Marriage Cases, supra,
Finally, religious autonomy is not threatened by recognizing the right of same sex couples to marry civilly. Religious freedom will not be jeopardized by the marriage of same sex couples because religious organizations that oppose same sex marriage as irreconcilable
F
Summary
Application of the Geisler factors does not alter our conclusion that gay persons are entitled to recognition as a quasi-suspect class. Persuasive federal and state precedent, albeit representative of the minority view, and considerations of public policy, all support such recognition. Heightened review of our state’s ban on same sex marriage is therefore appropriate. We now consider that remaining issue.
VII
APPLICATION OF THE HEIGHTENED SCRUTINY STANDARD
The test for determining whether the reasons given by the state in defense of the statutory classification at issue are sufficiently strong to satisfy heightened judicial scrutiny is settled. “Focusing on the differential treatment or denial of opportunity for which relief is sought, the reviewing court must determine whether the proffered justification is exceedingly persuasive. The burden of justification is demanding and it rests entirely on the [s]tate. . . . The [s]tate must show at least that the [challenged] classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives. . . . The justification must be genuine, not hypothesized or invented post hoc in response to [the] litigation. And it must not rely on
The defendants posit two essential reasons why the legislature has prohibited same sex marriage: (1) to promote uniformity and consistency with the laws of other jurisdictions; and (2) to preserve the traditional definition of marriage as a union between one man and one woman.
The defendants’ first proffered justification, that is, uniformity and consistency with other state and federal laws, may be rationally related to the state’s interest in limiting marriage to opposite sex couples, but it cannot withstand heightened scrutiny. Although the defendants maintain that this reason is sufficient to satisfy their demanding burden, they have identified no precedent in support of their claim. Indeed, beyond the mere assertion that uniformity and consistency with the laws of other jurisdictions represent a truly important gov
It is abundantly clear that preserving the institution of marriage as a union between a man and a woman is the overriding reason why same sex couples have been barred from marrying in this state.
Before doing so, however, we note that the defendants expressly have disavowed any claim that the legislative decision to create a separate legal framework for committed same sex couples was motivated by the belief that the preservation of marriage as a heterosexual institution is in the best interests of children, or that prohibiting same sex couples from marrying promotes responsible heterosexual procreation, two reasons often relied on by states in defending statutory provisions barring same sex marriage against claims that those provisions do not pass even rational basis review. See, e.g., Hernandez v. Robles, supra,
Although we acknowledge that many legislators and many of their constituents hold strong personal convictions with respect to preserving the traditional concept of marriage as a heterosexual institution, such beliefs, no matter how deeply held, do not constitute the exceedingly persuasive justification required to sustain a statute that discriminates on the basis of a quasi-suspect classification. “That civil marriage has traditionally excluded same-sex couples—i.e., that the ‘historic and cultural understanding of marriage’ has been between a man and a woman—cannot in itself provide a [sufficient] basis for the challenged exclusion. To say that the discrimination is ‘traditional’ is to say only that the discrimination has existed for a long time. A classification, however, cannot be maintained merely ‘for its own sake’ [Romer v. Evans, supra,
Thus, when tradition is offered to justify preserving a statutory scheme that has been challenged on equal protection grounds, we must determine whether the reasons underlying that tradition are sufficient to satisfy constitutional requirements. Tradition alone never can provide sufficient cause to discriminate against a protected class, for “[neither] the length of time a majority [of the populace] has held its convictions [nor] the passions with which it defends them can withdraw legislation from [the] [c]ourt’s scrutiny.” Bowers v. Hardwick, supra,
Furthermore, discrimination against one group also cannot be justified merely because the legislature prefers another group. See Metropolitan Life Ins. Co. v. Ward,
The defendants nevertheless maintain, in accordance with the teaching of Moore v. Gamim,
In Ganim, this court was required to determine whether the state had an affirmative duty under the state constitution to provide subsistence benefits to the poor. Id., 558-59. In declining to recognize such a duty, we stated, inter alia, that, “[although we do not foreclose the possibility that unenumerated rights may inhere in our state constitution, we are unpersuaded that our constitution obligates the state to provide its citizens with economic subsistence benefits.” Id., 593. We further stated that “[o]ur state and nation’s continuing attempt to grapple with the complex societal problem of poverty is indicative of the intricacies of the problem. On the one hand . . . some legislators believe that the best way to help the indigent is to limit entitlement programs. On the other hand . . . other people contend that such policies are misguided, as they will only increase malnutrition, crime, substance abuse and general human suffering. . . .
“[W]e are extremely hesitant to choose sides in this policy debate and to enshrine one policy choice as a matter of constitutional law. . . . Although we are sympathetic to the plight of indigent persons, the [constitution does not provide judicial remedies for every social and economic ill.” (Citations omitted; internal quotation marks omitted.) Id., 614.
Ganim, however, did not involve an equal protection challenge to the legislative action at issue. In Ganim, rather, we were asked to recognize a new fundamental and unenumerated right under the state constitution, an exercise of authority that quite properly required great restraint lest we create rights without convincing evidence of their existence. See id., 560; cf. Washington v. Glucksberg, supra,
That recognition itself, however, does not alter the nature of marriage. It is only because the state has not advanced a sufficiently persuasive justification for denying same sex couples the right to marry that the traditional definition of marriage necessarily must be expanded to include such couples. If the defendants were able to demonstrate sufficient cause to deny same sex couples the right to marry, then we would reject the plaintiffs’ claim and honor the state’s desire to preserve the institution of marriage as a union between a man and a woman. In the absence of such a showing, however, we cannot refuse to follow settled equal protection jurisprudence merely because doing so will
In sum, the state has failed to establish adequate reason to justify the statutory ban on same sex marriage. Accordingly, under the equal protection provisions of the state constitution, our statutory scheme governing marriage cannot stand insofar as it bars same sex couples from marrying.
VIII
CONCLUSION
We recognize, as the Massachusetts Supreme Judicial Court did in Goodridge v. Dept. of Public Health, supra,
The drafters of our constitution carefully crafted its provisions in general terms, reflecting fundamental principles, knowing that a lasting constitution was needed. Like the framers of the federal constitution, they also “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 [constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.” Lawrence v. Texas, supra,
Even though the right to many is not enumerated in our constitution, it long has been deemed a basic civil right. E.g., Loving v. Virginia, supra,
Like these once prevalent views, our conventional understanding of marriage must yield to a more contemporary appreciation of the rights entitled to constitutional protection. Interpreting our state constitutional provisions in accordance with firmly established equal protection principles leads inevitably to the conclusion that gay persons are entitled to marry the otherwise qualified same sex partner of their choice. To decide otherwise would require us to apply one set of constitutional principles to gay persons and another to all others.
The judgment is reversed and the case is remanded with direction to grant the plaintiffs’ motion for summary judgment and application for injunctive relief.
In this opinion NORCOTT, KATZ and HARPER, Js., concurred.
Notes
For convenience and economy of language, we hereinafter refer to gay men and lesbians as gay persons.
The plaintiffs, each of whom has identified himself or herself as a partner in a long-term, committed, same sex relationship with another plaintiff, are Elizabeth Kerrigan and Joanne Mock, Janet Peck and Carol Conklin, Geraldine Artis and Suzanne Artis, Jeffrey Busch and Stephen Davis, J.E. Martin and Denise Howard, John Anderson and Garrett Stack, Barbara Levine-Ritterman and Robin Levine-Ritterman, and Damaris Navarro and Gloria Searson. Several of the couples have been together for more than twenty years, and many of them have raised or are raising children together. Although we recognize each of the plaintiffs as a member of a same sex couple, for purposes of their state constitutional claims, we treat them as individuals seeking the right to marry the same sex partner of their choice.
Article first, § 8, of the constitution of Connecticut provides in relevant part: “No person shall ... be deprived of life, liberty or property without due process of law . . . .”
Article first, § 10, of the constitution of Connecticut provides: “All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.”
Article first, § 1, of the constitution of Connecticut provides: “All men when they form a social compact, are equal in rights; and no man or set of men are entitled to exclusive public emoluments or privileges from the community.”
Article first, § 20, of the constitution of Connecticut, as amended by articles five and twenty-one of the amendments, provides: “No person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his or her civil or political
The plaintiffs also claimed that state laws limiting marriage to opposite sex couples violated the right of free expression and association protected by article first, §§ 4, 5 and 14, of the constitution of Connecticut. On appeal, however, the plaintiffs expressly have abandoned that claim.
General Statutes § 46b-38nn provides: “Parties to a civil union shall have all the same benefits, protections and responsibilities under law, whether derived from the general statutes, administrative regulations or court rules, policy, common law or any other source of civil law, as are granted to spouses in a marriage, which is defined as the union of one man and one woman.”
General Statutes (Sup. 2008) § 46b-38oo provides: “Wherever in the general statutes the terms ‘spouse’, ‘family’, ‘immediate family’, ‘dependent’, ‘next of kin’ or any other term that denotes the spousal relationship are used or defined, a party to a civil union shall be included in such use or definition, and wherever in the general statutes, except sections 7-45 and 17b-137a, subdivision (4) of section 45a-727a, and sections 46b-20 to 46b-34, inclusive, 46b-38nn and 46b-150d, the term ‘marriage’ is used or defined, a civil union shall be included in such use or definition. Wherever in the general statutes, except sections 46a-60,46a-64,46a-64c and 46a-66, the term ‘marital status’ is used or defined, civil union status shall be included in such use or definition.”
For equal protection purposes, the classification at issue is sexual orientation. For ease of reference, we sometimes refer to gay persons as members of that class.
The plaintiffs appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.
As we discuss more fully in part V A of this opinion, the parties do not dispute that gay persons historically have been the object of invidious discrimination.
We note, preliminarily, that no party has suggested that the tost for determining whether our statutory scheme pertaining to marriage and civil unions gives rise to a cognizable claim under the state constitution is any different from that under the federal constitution.
We agree with the following point made by the Lambda Legal Defense and Education Fund, Inc., in its amicus brief: “Any married couple [reasonably] would feel that they had lost something precious and irreplaceable if the government were to tell them that they no longer were ‘married’ and instead were in a ‘civil union.’ The sense of being ‘married’—what this conveys to a couple and their community, and the security of having others clearly understand the fact of their marriage and all it signifies-—would be taken from them. These losses are part of what same sex couples are denied when government assigns them a ‘civil union’ status. If the tables were turned, very few heterosexuals would countenance being told that they could enter only civil unions and that marriage is reserved for lesbian and gay couples. Surely there is [a] constitutional injury when the majority imposes on the minority that which it would not accept for itself.”
As one prominent legal commentator has explained in discussing the establishment of civil unions: “Such a step reduces the discrimination, but falls far short of eliminating it. The institution of marriage is unique: it is a
We are confused by the position that Justice Borden takes in his dissenting opinion with respect to the plaintiffs’ contention that they have alleged a cognizable constitutional claim. Justice Borden first expresses the view that the plaintiffs have set forth a claim sufficient to “trigger equal protection analysis” because of the “uncertainty” as to whether civil unions “now or soon will be viewed by the citizens of our state as the social equivalent of marriage.” Before engaging in this analysis, however, Justice Borden states that “our experience with civil unions is simply too new and the views of the people of our state about it as a social institution are too much in flux to say with any certitude that the marriage statute must be struck down in order to vindicate the plaintiffs’ constitutional rights.” This latter assertion is inconsistent with Justice Borden’s earlier acknowledgment that, contrary to the decision of the trial court, the plaintiffs have set forth a claim that implicates the equal protection provisions of the state constitution.
Nevertheless, with respect to Justice Borden’s assertion that the plaintiffs have failed to demonstrate, to any reasonable degree of certainty, that the institution of marriage epjoys a greater status in our society than civil unions, for the reasons set forth by the trial court, we question whether, under that view, the plaintiffs have satisfied their burden of demonstrating actual harm.
Finally, we also are not persuaded by Justice Zarella’s rationale for concluding that the plaintiffs have raised a cognizable constitutional claim, namely, that the statutory right to marry has constitutional underpinnings whereas the statutory right to enter into a civil union does not. According to Justice Zarella, this difference has “specific legal consequences for the plaintiffs,” and thus gives rise to “a legally cognizable or actionable harm,” because the legislature “presumably could not abolish the institution [of marriage] altogether” even though it could repeal the civil union law. The difference that Justice Zarella identifies, however, is irrelevant for purposes of the present case because the plaintiffs have not alleged, and there is nothing in the record to suggest, that the legislature intends to repeal the
As we explain more fully hereinafter, claims brought under the equal protection provisions of (he state constitution are analyzed on the basis of certain well established criteria or considerations. Although those criteria and the Geisler factors are in some respects interrelated, we first address the various criteria that are unique to the equal protection analysis; see parts III, IV and V of this opinion; and thereafter review the relevant Geisler factors. See part VI of this opinion.
As we have indicated, the plaintiffs make no claim under the federal constitution. We note, however, that the United States Supreme Court never has decided, for purposes of the federal constitution, any of the issues raised by the plaintiffs’ claims.
In his dissent, Justice Zarella alone asserts that same sex and opposite sex couples who wish to marry are not similarly situated because the former cannot engage in procreative sexual conduct. In view of the myriad and important similarities between same sex and opposite sex couples, including their shared interest in having and raising a family, we disagree that the inability of the former to conceive children together defeats the plaintiffs’ equal protection challenge. Although it may be argued that the state’s interest in regulating procreative conduct constitutes a rational basis for limiting marriage to opposite sex couples—an argument that, notably, the state itself expressly has disavowed—that rationale does not answer the entirely different question of whether same sex and opposite sex couples are similarly situated for present purposes. Because same sex and opposite sex couples have the same interest in having a family and the same right to do so, the mere fact that children of (he former may be conceived in a different manner than children of the latter is insufficient, standing alone, to negate the fundamental and overriding similarities that they share, both with regard to matters relating to family and in all other respects. Thus, even though procreative conduct plays an important role in many marriages, we do not believe that such conduct so defines the institution of marriage that the inability to engage in that conduct is determinative of whether same sex and opposite sex couples are similarly situated for equal protection purposes, especially in view of 1 he fact that some opposite sex couples also are unable to procreate, and others choose not to do so. Indeed, Justice Zarella has identified no case, and we are aware of none, that has rejected an equal protection claim on the ground that same sex couples are not similarly situated to opposite sex couples, either because the former cannot engage
Indeed, not infrequently, the United States Supreme Court, has omitted any reference to immutability in discussing the identifying or distinguishing characteristic of aparticular class. See, e.g., Massachusetts Board of Retirement v. Murgia, supra,
Moreover, because one’s status as illegitimate also may be changed; see, e.g., Miller v. Albright,
With respect to the relative importance of this fourth and final factor, notably, in every case involving a group that has been subjected to a history of purposeful discrimination based on an innate characteristic unrelated to its members’ ability to participate in or contribute to society, the group has been accorded status as a suspect or quasi-suspect class irrespective of its political power or lack thereof. See, e.g., Palmore v. Sidoti,
Our application of the test for determining whether a group is entitled to heightened protection under the state constitution, and, in particular, our consideration of the two subsidiary criteria of immutability and status as a minority or politically powerless group, is informed by the following observations of former United States Supreme Court Justice Thurgood Marshall about that test in his concurring and dissenting opinion in Cleburne v. Cleburne Living Center, Inc., supra,
“The political powerlessness of a group and the immutability of its defining trait are relevan! insofar as they point to a social and cultural isolation that gives the majority little reason to respect or be concerned with that group’s
“The discreteness and insularity warranting a ‘more searching judicial inquiry’ . . . must therefore be viewed from a social and cultural perspective as well as a political one. To this task judges are well suited, for the lessons of history and experience are surely the best guide as to when, and with respect to what interests, society is likely to stigmatize individuals as members of an inferior caste or view them as not belonging to the community. Because prejudice spawns prejudice, and stereotypes produce limitations that confirm the stereotype on which they are based, a history of unequal treatment requires sensitivity to the prospect that its vestiges endure. In separating those groups that are discrete and insular from those that are not, as in many important legal distinctions, ‘a page of history is worth a volume of logic.’ New York Trust Co. v. Eisner,
In this regard, we note that the Sixth Circuit Court of Appeals has suggested that suspect class status is appropriate for race, alienage and national origin because those classifications are “seldom relevant to any legitimate state interest”; Equality Foundation of Greater Cincinnati, Inc. v. Cincinnati,
The defendants raise the threshold claim that this state’s marriage laws do not discriminate on the basis of sexual orientation because gay persons have the same right to marry that heterosexuals enjoy. Although the laws governing marriage do not discriminate expressly against gay persons inas
We therefore disagree with Justice Zarella’s contention that the most that can be said about the state statutory prohibition against same sex marriage is that it impacts gay persons disparately. First, the civil union law, which expressly provides for the union of same sex couples; see General Statutes § 46b-38bb; also expressly defines marriage “as the union of one man and one woman.” General Statutes § 46b-38nn. It is readily apparent, therefore, that the statutory scheme at issue purposefully and intentionally distinguishes between same sex and opposite sex couples. Moreover, as a general matter, “the statutory provisions restricting marriage to a man and a woman cannot be understood as having merely a disparate impact on gay persons, but instead properly must be viewed as directly classifying and prescribing distinct treatment on the basis of sexual orientation. By limiting marriage to opposite-sex couples, the marriage statutes, realistically viewed, operate clearly and directly to impose different treatment on gay individuals because of their sexual orientation. ... A statute that limits marriage to a union of persons of opposite sexes, thereby placing marriage outside the reach of couples of the same sex, unquestionably imposes different treatment on the basis of sexual orientation. . . . [I]t is sophistic to suggest that this conclusion is avoidable by reason of the circumstance that the marriage statutes permit a gay man or a lesbian to marry someone of the opposite sex, because making such a choice would require the negation of the person’s sexual orientation. Just as a statute that restricts] marriage only to couples of the same sex would discriminate against heterosexual persons on the
In 1993, Congress enacted legislation embodying the so-called “don’t ask, don’t tell” policy; see National Defense Authorization Act for Fiscal Year 1994, Pub. L. No. 103-160, § 571 (a) (1), 107 Stat. 1547, 1670 (1993) (codified as amended at 10 U.S.C. § 654); pursuant to which a service member who has engaged in, intends to engage in or is likely to engage in homosexual conduct will be ordered separated from the armed services. See 10 U.S.C. § 654 (b) (1) through (3) (2006) (providing that service member shall be separated from armed services if he or she has “engaged in, attempted to engage in, or solicited another to engage in a homosexual act,” or has “stated that he or she is a homosexual or bisexual . . . unless . . . the member has demonstrated that he or she is not a person who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts,” or “has married or attempted to marry a person known to be of the same biological sex”).
We note that, in the past, overt discrimination against gay persons by the United States government was significantly more pervasive. “Fifty years ago, no openly gay people worked for the federal government. In fact, shortly after . . . Dwight Eisenhower [became the president in 1953, he] issued an executive order that banned homosexuals from government employment, civilian as well as military, and required companies with government contracts to ferret out and fire their gay employees. At the height of the McCarthy witch-hunt, the [Department of State] fired more homosexuals than communists. In the 1950s and 1960s literally thousands of men and women were discharged or forced to resign from civilian positions in the federal govern
The Internet sources to which we cite throughout this opinion were accessed and verified immediately before the date of publication of this opinion for the purpose of ensuring accuracy. All such sources are on file with this court.
For example, at one time, “more than half of the nation’s states, including New York, Michigan, and California, enacted laws authorizing the police to force persons who were convicted of certain sexual offenses, including sodomy—or, in some states, merely suspected of being ‘sexual deviants’—• to undergo psychiatric examinations. Many of these laws authorized the indefinite [commitment] of homosexuals in mental institutions, from which they were to be released only if they were cured of their homosexuality, something prison doctors soon began to complain was impossible.” G. Chauncey, Why Marriage? The History Shaping Today’s Debate Over Gay Equality (Basis Books 2004) c. 1, p. 11.
See, e.g., Equality Foundation of Greater Cincinnati, Inc. v. Cincinnati, supra,
Hernandez-Montiel v. Immigration & Naturalization Service,
It is difficult to discern precisely the percentage of homosexuals in the population. Studies conducted by Alfred C. Kinsey in the mid-twentieth century indicated that approximately one out of every ten men was gay; A. Kinsey, W. Pomeroy & C. Martin, Sexual Behavior in the Human Male (W.B. Saunders 1948) p. 651; and that lesbians apparently comprised a somewhat smaller percentage of the population. A. Kinsey, W. Pomeroy & C. Martin et al., Sexual Behavior in the Human Female (Indiana University Press Ed. 1998) p. 474; see also High Tech Gays v. Defense Industrial Security Clearance Office, supra,
The United States Supreme Court subsequently has made it clear that sex is a quasi-suspect classification and that statutes discriminating on that basis are subject to intermediate scrutiny rather than strict scrutiny. See, e.g., Craig v. Boren, supra,
As examples, the court noted that, as of the date of its decision in 1973, no woman ever had been elected president of the United States or appointed to the United States Supreme Court. Frontiero v. Richardson, supra,
For example, in the 110th Congress, sixteen women now serve in the United States Senate and seventy-eight currently serve in the United States House of Representatives. See “Women in Congress,” available at http://womenincongress.house.gov/data/wic-by-congress.html?cong=UO. Furthermore, two women have been appointed to the United States Supreme Court. In addition, in 1973, when Frontiero was decided, only three women ever had served as governor of a state. See J. Lewis, “Women Governors,” available at http://womenshistory.about.eom/od/governors/a/govemors.htm. Since that date, twenty-seven women have held, or now hold, that position. See id.
See R. Longley, “Still More Boys Than Girls Being Born” (“[i]n 2003, the Census Bureau estimated a total of 144,513,361 females of all ages, compared to 138,396,524 males”), available at http://usgovinfo.about.com/ od/censusandstatistics/a/moreboys.htm.
For example, African-Americans “are protected by three federal constitutional amendments, [several] major federal Civil Rights Acts of [the nineteenth and twentieth centuries], as well as by antidiscrimination laws in [no fewer than forty-eight] of the states.” High Tech Gays v. Defense Industrial Security Clearance Office, supra,
Indeed, it has been asserted that “[t]he predominating purpose motivating the exclusion of gay persons from state-recognized marriages is religious. . . . This may explain why the movement to exclude gay couples from the institution of marriage has been a fundamentally religious movement.” Comment, “ ‘What’s in a Name?’ Civil Unions and the Constitutional Significance of ‘Marriage,’ ” 10 U. Pa. J. Const. L. 607, 632-33 (2008).
Of course, we do not suggest that there is anything untoward or improper about such efforts to mold public policy or opinion, for such activity lies at the core of our democratic system. Nor do we equate religious beliefs with prejudice. Our point is simply that gay persons face steep, if not insurmountable, hurdles in changing or even modifying deeply held beliefs that their manner of sexual intimacy is morally unacceptable.
“According to a national survey conducted in 2000, 74 percent of [gay persons] and bisexuals reported having been subjected to verbal abuse because of their sexual orientation and 32 percent reported being the target of physical violence. [See] . . . Henry J. Kaiser Family Foundation, Inside-Out: A Report on the Experiences of Lesbians, Gays and Bisexuals in America and the Public’s View on Issues and Policies Related to Sexual Orientation (2001) pp. 3-4 . . . .” In re Marriage Cases,
In this regard, it is noteworthy that a poll taken in 1998 by the National Law Journal found that 17.1 percent of prospective jurors admitted to a bias against homosexuals that would make it impossible for them to be fair and impartial in a case in which one of the parties was a homosexual. “Juror Outlook Survey,” National L.J., November 2, 1998, pp. Al, A24-A25. By contrast, only 4.8 percent indicated that they could not be fair to African-Americans, and 5 percent stated that they could not be fair to women. Id.
Thus, as former United States Supreme Court Justice William Brennan, joined by Justice Thurgood Marshall, stated: “Because of the immediate and severe opprobrium often manifested against homosexuals once so identified publicly, members of this group are particularly powerless to pursue their rights openly in the political arena. Moreover, homosexuals have historically been the object of pernicious and sustained hostility, and it is fair to say that discrimination against homosexuals is ‘likely ... to reflect deep-seated prejudice rather than . . . rationality.’” Rowland v. Mad River Local School District
Indeed, as far as we know, there is only one openly gay or lesbian federal judge in the entire nation. See N. McDonald, “Queer Eye for the Ballot Box: Is Philadelphia Ready for Its First Gay Mayor” (January 17, 2007), available at http://www.citypaper.net/articles/2007/01/18/queer-eyefor-the-ballot-box.
Apparently, this represents one of the largest contingents of gay persons of any state legislature in the nation. See “State Legislature Has Largest Gay Caucus in U.S.” (January 23, 2008), available at http://www.komotv.com/ news/local/14133022.html (reporting that, in addition to Connecticut, states with largest number of gay and lesbian legislators include New Hampshire, with seven gay and lesbian lawmakers, and Washington, which has six gay and lesbian lawmakers). Although we recognize that Connecticut is a leader in terms of the number of openly gay and lesbian lawmakers elected to the legislature, we view that fact as indicative of the political weakness of gay persons nationwide, and not as indicative of the political strength of gay persons in this state.
It, is noteworthy that, in contrast to our state laws designed to protect gay persons from discrimination, federal law reflects Congress’ reluctance to address such discrimination on a nationwide basis. Thus, for example, despite repeated attempts to extend the protections of Title VII to sexual orientation, the federal antidiscrimination provisions do not ban discrimination on that basis. See generally 42 U.S.C. § 2000e et seq. Under the “don’t ask, don’t tell” policy applicable to the armed forces of the United States, gay persons cannot serve in the military except under severely circumscribed circumstances. See 10 U.S.C. § 654 (2006); see also footnote 25 of this opinion. In addition, under the federal Defense of Marriage Act, which was enacted in 1996 and is codified at 1 U.S.C. § 7 and 28 U.S.C. § 1738C, no state is required to give effect to a same sex marriage solemnized in another state. Federal law, therefore, provides gay persons with little or no protection from discrimination. Furthermore, at least twenty-five states, including Alabama, Alaska, Arkansas, Colorado, Georgia, Idaho, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, Nevada, North Dakota, Ohio, Oklahoma, Oregon, South Carolina, South Dakota, Tennessee, Texas, Ut ah and Wisconsin, have passed constitutional amendments banning same sex marriage, a development that many view as reflecting widespread opposition to equal rights for gay persons.
Cf. General Statutes § 45a-726a (“Notwithstanding any provision of sections 4a-60aand46a-81ato 46a-81p, inclusive, the Commissioner of Children and Families or a child-placing agency may consider the sexual orientation of the prospective adoptive or foster parent or parents when placing a child for adoption or in foster care. Nothing in this section shall be deemed to require the Commissioner of Children and Families or a child-placing agency to place a child for adoption or in foster care with a prospective adoptive or foster parent or parents who are homosexual or bisexual.”).
Not surprisingly, the relevant legislative history demonstrates that the disclaimer set forth in § 46a-81r (1) was a political compromise designed to assure persons opposed to homosexual conduct of this state’s unwillingness to approve or condone such conduct. Indeed, when asked, during floor debate on the gay rights law, why heterosexuality was not included in the disclaimer, Representative Richard D. Tulisano, a sponsor of the bill, replied, “Why [is it] not included? Because maybe I want to condone heterosexuality.” 34 H.R. Proc., Pt. 7,1991 Sess., p. 2615; see also id., pp. 2614-26, remarks of Representatives Tulisano and William L. Wollenberg (addressing proviso that slate does not condone homosexual lifestyle and acknowledging that it was political compromise aimed at distinguishing homosexual behavior from sexual orientation); cf. 34 S. Proc., Pt. 3,1991 Sess., pp. 976-77, remarks of Senator Anthony V. Avallone (“One of the things—the issues that clouded . . . my judgment and others, one of the issues raised early on in this bill was does the [s]tate of Connecticut, by this bill, condone a particular activity that is offensive to a particular portion of the community and [that] is really the business of consenting adults .... I know this bill does not do that.”).
In his dissent, Justice Borden seeks to negate the import of § 46a-81r (1) by asserting that the provision merely reflects the state’s neutrality with respect to the legitimacy or propriety of homosexual conduct. See footnote 16 of Justice Borden’s dissenting opinion. In making this assertion, Justice Borden ignores the centuries of prejudice and discrimination that gay persons have faced, the fact that the legislature never has deemed it necessary to malee such a statement of neutrality with respect to the heterosexual lifestyle, and the legislative history of § 46a-81r (1), which, as we have indicated; see footnote 45 of this opinion; demonstrates that the provision was intended to assuage those citizens and legislators who believed that sexual conduct involving persons of the same sex is immoral, wrong or otherwise not to be condoned. Construed fairly, therefore, § 46a-81r (1) is manifestly not neutral and must be read to express this state’s preference for heterosexual conduct.
See House Bill No. 7115, 1989 Sess.; Senate Bill No. 208, 1987 Sess.; House Bill No. 7584, 1987 Sess.; Senate Bill No. 398, 1983 Sess.; Senate Bill No. 813, 1981 Sess.; House Bill No. 6545, 1981 Sess.; see also Conn. Joint Standing Committee Hearings, Judiciary, Pt. 3, 1991 Sess., pp. 739-40, remarks of Father Christopher Rose (proposed legislation that would become gay rights law had “been kicking around in Connecticut for more than ten years and the fact that we continue to ignore passage of this [legislation] I think perpetuates a grave injustice against the segment of our population”).
See 34 S. Proc., Pt. 3, 1991 Sess., p. 986, remarks of Senator George C. Jepsen (“If anything, I personally feel that the legislation does not go far enough. I would prefer a stronger bill. I would prefer bills that we saw in previous years. I think, however, the bill before us today addresses the needs of society adequately. It takes into account the difficult situation, ploys by religion and deals with it appropriately] . . . .”); id., p. 993, remarks of Senator Louis C. DeLuca (“In Senator [Anthony V.] Avallone’s remarks he said that this bill [h]as carefully crafted exceptions. It seems to me when you introduce legislation and have to carefully craft all those exceptions, you understand from the beginning that this [is] an exceptional bill and it does not fit the norm of discrimination.”); 34 H.R. Proc., Pt. 7, 1991 Sess., p. 2597, remarks of Representative Richard D. Tulisano (“[T]he bill before us represents a revised attempt, if you will, at dealing with the issue of discrimination on the basis of sexual orientation. The bill . . . does not, as we have done in past years, add to [the] list of protected classes, that dealing with sexual orientation and effectively we have narrowed this bill to apply or to create a new body of law .... So, therefore, the old approach we . . . obviously took into account and made sexual orientation the broad application that was dealt with race, religion, color, as is done in most of our Civil Rights Acts. This approach is somewhat different. It is narrower. It seeks to respond to some of the issues that have been raised over the years in this debate.”); 34 H.R. Proc., supra, p. 2752, remarks of Representative Juan A. Figueroa (“[t]his is probably the most narrowly drawn civil rights bill to be passed in this state”).
The following comments of Justice Thurgood Marshall also are instructive in this regard: “[H]istory makes clear that constitutional principles of equality, like constitutional principles of liberty, property, and due process, evolve over time; what was once a ‘natural’ and ‘self-evident’ ordering later comes to be seen as an artificial and invidious constraint on human potential and freedom. Compare Plessy v. Ferguson,
Although that legislative determination is clear enough from the terms of the law’s provisions, the legislative purpose—and the recognition that gay persons possess limited political power—is further reflected in the legislative history. For example, Senator George C. Jepsen, speaking in favor of the gay rights law, explained that discrimination on the basis of sexual orientation “is widespread, even systematic in our society .... [I]t is entirely appropriate to address this difficult and important subject in the Congress and in the [legislatures across our country.
“[CJountless gays . . . fear discrimination in their jobs, in their housing if their identity is know[n]. I know of overt acts of discrimination, whether it’s slurs, ugly slurs painted on the sides of houses or on the cars of homosexuals, whether it was the testimony of individuals before the [¡judiciary [cjommittee earlier this year, whether it, was the letters and the write-ins from countless individuals who are gay and who have faced discrimination in their lives . . . .” (Emphasis added.) 34 S. Proc., Pt. 3, 1991 Sess., pp. 983-85. Senator Jepsen’s remarks concerning the intense and pervasive prejudice and discrimination that gays have suffered for so long, their relative lack of political power, and the need for an extraordinary legislative response affording gay persons a measure of legal protection, speak volumes about the extent to which gay persons constitute “a discrete and insular minority . . . for whom . . . heightened judicial solicitude is appropriate.” (Citation omitted; internal quotation marks omitted.) Graham v. Richardson, supra,
In his dissenting opinion, Justice Borden concludes that gay persons are not entitled to protected status because they have too much political power to warrant such protection. As we discuss more fully in part V D 3 of this opinion, this conclusion is flawed because, at the time women were accorded protected status under the federal constitution, they possessed more political power than gays in this state currently possess.
We recognize that several federal and state courts have held that sexual orientation is not a suspect or quasi-suspect classification, holdings that have been based, in part, on the determination that gay persons are not politically powerless. See High Tech Gays v. Defense Industrial Security Clearance Office,
These cases are unpersuasive because, first, the courts applied the term “politically powerless” more or less literally to deprive gay persons protected status. As we previously have explained, such an application of the political powerlessness prong fails to account for the fact that the United States Supreme Court properly accorded African-Americans and women enhanced judicial protection at a time when they had more political power than gay persons currently possess. See E. Gerstmann, supra, c. 4, pp. 81-84 (explaining that courts should apply to gay persons same political powerlessness standard that had been applied to African-Americans and women
The cases also are not persuasive because the courts applied the political powerlessness prong as dispositive of the suspectness inquiry. As we have explained, to the extent that the Supreme Court has considered the political power of a group in determining whether it is entitled to suspect or quasi-suspect class status, it has accorded that prong the least amount of weight. See part IV of this opinion.
Thus, in Justice Borden’s view, any statute that discriminates against gay persons would pass muster under the equal protection provisions of the state constitution if a court could conceive of any plausible justification for sustaining the discriminatory legislation, the same highly deferential standard that applies in the area of economics and social welfare. See, e.g., Batte-Holmgren v. Commissioner of Public Health,
Justice Borden’s analysis is predicated primarily on certain language in Cleburne v. Cleburne Living Center, Inc., supra,
Thus, Cleburne merely raises the possibility that, if a class historically has been subjected to invidious discrimination, but the defining characteristic of that class, like that of the mentally disadvantaged in Cleburne, bears a legitimate relation to the ability to perform in society, that class still might be deemed quasi-suspect if the members of that class “are politically powerless in the sense that they have no ability to attract the attention of the lawmakers.” (Emphasis added.) Id., 445. When, however, as in the present case, the defining characteristic of the class bears no relationship to the ability to perform in society, the mere ability of the group “to attract the attention of Ihe lawmakers”; id.; would not provide a reason to deprive the group of protected status.
We note that Justice Borden also fails to explain why African-Americans properly were afforded suspect class status because, at the time they received such recognition, they, like gay persons in this state, were the subject of antidiscrimination legislation. See High Tech Gays v. Defense Industrial Security Clearance Office, supra,
Moreover, although women as a group have been subjected to invidious discrimination in the form of stereotyping about their proper role and ability to perform in society, in contrast to gay persons, they have not been the object of hatred and revulsion for who they are.
Just as Justice Borden fails to recognize the import of Frontiero to the present case, he also fails to explain how Frontiero is compatible with United States v. Carolene Products Co., supra,
To support the result that he reaches, Justice Borden turns to the fact that, at a televised “news briefing” or news conference in January, 2007, attended by legislative supporters of a gay marriage bill that ultimately was
Before addressing the substance of Justice Borden’s argument, we first note our disapproval of Justice Borden’s reliance on a news conference and press release that are not part of the record of this case, have not been made available to the parties for their review and comment, and do not contain facts or information that is undisputed or otherwise appropriate for judicial notice by this or any other court. Because the parties never have been afforded the opportunity to be heard about the statements contained in the press conference and the press release—which apparently were retrieved by Justice Borden after the oral argument in this case—we have not heard the parties’ views concerning the relevance and import of the two items, if any, to the present case. Furthermore, all of the statements that Justice Borden lifts from the news conference and the press release constitute the rankest form of hearsay, and merely represent the sentiments and opinions of several selected legislators as expressed at a particular point in time and in a particular forum. Indeed, to infer, on the basis of those opinions, that a gay marriage bill soon will become law in this slate, as Justice Borden does, contravenes the prohibition against appellate fact-finding. See Weil v. Miller,
Nonetheless, with respect to the conclusions that Justice Borden has reached on the basis of selected excerpts from statements made at the news conference and contained in the press release, we reject his interpretation of those statements as indicating that gay marriage necessarily is likely in this state, let alone inevitable, merely because one or more legislators suggested as much. We also reject Justice Borden’s conclusion because, in any event, statements made at a political rally by those advocating for a
Thus, Justice Borden’s criticism of our application of the political powerlessness test to gay persons as “cramped” is, in reality, directed at the test as applied by the court in Frontiero and its progeny because that is the test that we apply today. Indeed, if the court in Frontiero had applied that test to women, as Justice Borden would apply it in the present case to gay persons, there is no way that women would have been accorded protected status in light of the political power that they already had possessed in 1973.
We also disagree with Justice Borden’s claim that we have “short-circuited the democratic process.” In fact, that is precisely the claim that Justice Powell made in support of his contention that the court in Frontiero should not accord women heightened constitutional protection. See Frontiero v. Richardson, supra,
Although our suspectness inquiry necessarily implicates many of the considerations identified in Geisler, we nevertheless deem it appropriate to undertake a separate Geisler analysis because the plaintiffs’ claim raises an issue under the state constitution that never has been decided by the United States Supreme Court under the analogous provisions of the federal constitution.
Article first, § 1, of the Connecticut constitution, which provides in relevant part that “[a]ll men when they form a social compact, are equal in rights,” also contains no facial indication as to whether this state’s prohibition of same sex marriage infringes on the rights of gay persons. We note, moreover, that the plaintiffs do not claim that they are entitled to greater rights under article first, § 1, than they are afforded under article first, § 20.
The specific issue that the Appellate Court addressed in State v. John M.,
See, e.g., Lofton v. Secretary of the Dept. of Children & Family Services, supra,
These federal circuit courts either relied on Bowers explicitly or relied on cases that were predicated on Bowers. E.g., Richenberg v. Perry,
Subsequent to Lawrence, several federal circuit courts have held that gay persons are not a suspect class. Those cases, however, generally have relied upon pm-Lawrence case law; see, e.g., Scarbrough v. Morgan County Board of Education,
Although the court in Romer stated that the state constitutional amendment at issue violated the federal equal protection clause because the amendment did not “bear a rational relationship to a legitimate governmental purpose”; Romer v. Evans, supra,
At least two other state courts of last resort, without deciding whether sexual orientation is a suspect or quasi-suspect class, have determined that a statutory ban on same sex marriage violates their state constitutions; Baehr v. Lewin,
Although the Kansas Supreme Court decided the case under the Kansas constitution, the court noted that the same standard applied for deciding claims under the analogous provisions of the federal constitution. See State v. Limon, supra,
The court in Limon acknowledged that, although Romer involved an equal protection claim, Lawrence was decided on due process grounds. State v. Limon, supra,
The third member of the panel in Dean, Judge John M. Ferren, undertook a comprehensive analysis of the plaintiffs’ claim that gay persons are a
Because the court in Andersen previously had concluded that the equal protection provisions of the Washington state constitution provide the same level of protection as the equal protection provisions of the federal constitution, the court did not undertake an independent state constitutional analysis. Andersen v. King County, supra,
We note that, for purposes of the California constitution, classifications are either suspect or nonsuspect; the former are subject to strict scrutiny and the latter are subject to rational basis review. In re Marriage Cases, supra,
Neither the plaintiffs nor the defendants contend that the history of this state’s equal protection provisions, the fifth factor to be considered under Geisler, bears materially on the determination of whether gay persons are a quasi-suspect class. We therefore turn to the sixth Geisler factor, namely, contemporary economic and sociological considerations.
As we explain more fully in part VII of this opinion, the state’s reasons for the statutory prohibition against same sex marriage are indeed insufficient to satisfy heightened or intermediate scrutiny.
Because of the significance of marriage in our society, the freedom to marry is an extraordinarily important right for all persons who wish to exercise it. As the Alliance for Marriage acknowledged in its amicus brief in support of the defendants, “children reared by married couples and married couples themselves benefit greatly from marriage—apart from any legal benefits conferred on the family. Benefits to the married couple include greater longevity, greater wealth, more fulfilling sexual relationships, and greater happiness.”
In this regard, the following observation of Connecticut Catholic Conference, Inc., which filed an amicus brief in support of the defendants, is relevant. “In our culture, there has been a consensus on . . . [the] unique ethical foundations [of marriage]: that the union should be for life (permanency), that the union should be exclusive (fidelity), and that the love that sustains and nurtures the union should be characterized by mutual support and self-sacrifice (selflessness).” These ideals apply equally to committed same sex and committed opposite sex couples who wish to many.
Several of the plaintiffs in the present case are parents of young children. In their affidavits filed in support of their motion for summary judgment, those plaintiffs share the concern that the exclusion of their families from the institution of marriage will have an adverse effect on their children, who, understanding the social and cultural significance of marriage, have been or will be forced to explain to their friends and others why their parents cannot marry. As one of the plaintiffs, J.E. Martin, stated: “We want our children to know that their family is as secure as their best friends’ families and that it is equal in society’s eyes .... We know what ‘married’ means, our neighbors and friends know what it means, and our children [now eleven and eight years old] know what it means. Marriage means a committed couple, sharing love, sharing responsibilities, supporting each other, which is what we are and what we do.” Another plaintiff, Jeffrey Busch, speaking on behalf of himself and his partner, Stephen Davis, explains: “As our son Eli [now age six] grows up, we plan to convey to him that there are all kinds of families, and our family is as legitimate as any
The defendants also rely on the state’s interest in providing rights to same sex couples incrementally as an additional justification for the statutory bar on same sex marriage. For purposes of the present case, however, characterizing the state’s interest in terms of changing the law incrementally is simply another way of asserting that the state currently has an interest
Under the standard of review applicable to statutes that discriminate against quasi-suspect classes, we consider only the reasons that actually motivated the legislature to create the statutory classification at issue. See United States v. Virginia, supra,
Furthermore, contrary to the unsupported suggestion of Justice Zarella, we most certainly do not believe that “anyone who opposes same sex marriage must harbor animus toward gay persons”; footnote 12 of Justice Zarella’s dissenting opinion; and nothing in this opinion warrants such a suggestion. We, no less than Justice Zarella, appreciate the fact that same sex marriage is a subject about which persons of good will reasonably and sincerely disagree.
This conclusion is amply supported by the legislative history of the civil union law. Although a majority of the legislators ultimately agreed to grant same sex couples all of the rights and privileges that married couples enjoy, creating a separate legal entity for that purpose was the overarching concern of many of the legislators who spoke and voted in favor of the measure recognizing civil unions. As one legislator explained, the critical task before the General Assembly was to determine how to extend rights to same sex couples in such a manner that permitted members of the legislature to return to their respective districts and inform their constituencies that “we didn’t . . . do it in a way that you [would find] offensive either to your core beliefs, to your religious beliefs, or to your view of what marriage is.” 48 H.R. Proc., Pt. 7, 2005 Sess., p. 2002, remarks of Representative Robert M. Ward.
We note that the defendants’ legislative deference argument was used by the commonwealth of Virginia in Loving v. Virginia, supra,
Until relatively recently, “it remained the prevailing doctrine that government, both federal and state, could withhold from women opportunities accorded men so long as any ‘basis in reason’ could be conceived for the discrimination.” United States v. Virginia, supra,
As we previously observed, in his dissenting opinion, Justice Borden asserts that “[i]t is the unfortunate consequence of the majority opinion that it has short-circuited the democratic process.” For the reasons that we set forth previously; see footnote 59 of this opinion; we disagree with Justice Borden’s criticism. We note, however, that, like Justice Borden, we take our responsibility as judges very seriously, with a full appreciation of the proper limits of the role of the judiciary in our tripartite form of government. Although that role frequently entails the exercise of judicial restraint, we cannot shirk what we view as our duty to strike down an unconstitutional statute in the name of such restraint, or because our decision may be controversial or unpopular in some quarters. We are content that, ultimately, our decision, like that of Justice Borden, will be judged on the basis of its adherence to fundamental constitutional principles and not on any suggestion that we are either unaware or unmindful of the court’s proper role in our democratic system.
We note that this case only addresses the state’s prohibition against same sex marriage, a ban that we conclude violates the state constitution. Our holding does not affect the recognition of civil unions in this state.
Dissenting Opinion
joins, dissenting. The majority concludes that sexual orientation is a quasi-suspect class under our state constitutional provisions guaranteeing equal protection of the laws; Conn. Const., § 20, art. I, §§ 1 and 20;
I conclude that sexual orientation does not constitute either a suspect or a quasi-suspect class under our state constitution. I also reject the other claims raised under our state constitution, by the plaintiffs, eight same sex couples,
I
SEXUAL ORIENTATION IS NOT A QUASI-SUSPECT CLASS UNDER ARTICLE FIRST, §§ 1 AND 20, OF THE CONSTITUTION OF CONNECTICUT
A
Background
I begin by noting my agreement with much of what the majority says in its eloquently written opinion. First,
The majority concludes that the civil union statute has relegated the plaintiffs to an inferior status and affords them second class citizenship, that civil unions are perceived to be inferior to marriage, and that, “[d] espite the truly laudable effort of the legislature in equalizing the legal rights afforded same sex and opposite sex couples, there is no doubt that civil unions enjoy a lesser status in our society than marriage.” Unlike the majority, I do have such a doubt, and I do not think that the plaintiffs have established that proposition as beyond doubt.
First, the majority’s determination that civil union status is a second class or inferior status is not, as the majority presents it, an established fact that serves as the starting point of the debate, but an issue of fact that has not yet been resolved in the present case. In fact, in the trial court on the cross motions for summary
This is particularly significant given the fact that the question of what is perceived or considered to be an inferior status in a given society may not be readily apparent when the subject is a brand new institution, such as civil union. One only needs to open the New York Times on a given Sunday and see civil unions announced on the same page and in the same style as marriages. It is questionable, at least, that a couple that views their civil union as a sign of second class citizenship would choose to publicize it in the society column of the newspaper, particularly one with a circu
In this connection, I also note that this court is constitutionally prohibited from finding facts. Weil v. Miller,
I acknowledge that, because of its name, civil union is a different status from marriage. In this connection, I also note my agreement with Justice Zarella’s observation in part I of his dissenting opinion regarding the nature of that different status, namely, that the institution of civil union is a creature of statute, while marriage is a fundamental civil right protected by the constitution. At this point in our state’s history, however, and without any appropriate fact-finding on the issue, I am unable to say that it is widely considered to be less than or inferior to marriage, or that it does not bring with it the same social recognition as marriage. It is simply too early to know this with any reasonable measure of certitude.
I agree with the New Jersey Supreme Court that “same-sex couples [are] free to call their relationships by the name they choose . . . .” Lewis v. Harris, supra,
Thus, our experience with civil unions is simply too new and the views of the people of our state about it as a social institution are too much in flux to say with any certitude that the marriage statute must be struck down in order to vindicate the plaintiffs’ constitutional rights. “[J]udicia! authority ... is certainly not the only repository of wisdom. ‘When a democracy is in moral flux, courts may not have the best or the final answers. Judicial answers may be wrong. They may be counterproductive even if they are right. Courts do best by proceeding in a way that is catalytic rather than preclusive and that is closely attuned to the fact that courts are participants in the system of democratic deliberation.’ ” Baker v. State, supra,
I also agree, however, with the majority that the same factors that trigger strict scrutiny under our equal protection clauses trigger intermediate scrutiny, and I agree generally with the majority’s four factor test applicable to trigger those tiers of judicial scrutiny, including the notion that there is no formula for applying the four factor test. Furthermore, applying those four factors to the facts of this case, I agree that gay persons have suffered a deplorable history of invidious discrimination, that their sexual orientation is a distinguishing characteristic that defines them as a discrete group, and that one’s sexual orientation has no relation to a person’s ability to contribute to society.
My fundamental disagreement with the majority focuses, however, on the relevance and application of the fourth factor, namely, the political power of gay persons in this state. The majority discounts this factor as the least important of the factors in the equal protection calculus, and applies it in a way that, in my view, renders it all but irrelevant. To the contrary, I view this factor as equal to the other factors, and think that, under our state constitution, it should be given its due weight.
In this connection, I emphasize the limitations on the scope of my analysis. First, we decide this case under the equal protection clauses of our state constitution. When we do so, we ordinarily look to those equal protection principles articulated by the United States Supreme Court; but we do so as a matter of jurisprudential choice, not as a matter of state constitutional mandate. Second, as I explain in part II of this opinion, in my view those classes specified in article first, § 20; see footnote 1 of this dissenting opinion; and only those classes, are entitled to strict scrutiny under our consti
Furthermore, in applying the political power factor to the facts of this case, I conclude that, because one of the fundamental purposes of heightened review scrutiny is, as I explain in part IB of this opinion, the need for judicial intervention into the process of legislative classification to protect discrete and insular minorities who cannot effectively use the political process to protect themselves, the political power of gay persons in this state at this time regarding the right of gay marriage is so strong that the political power factor outweighs the other factors. I turn now, therefore, to the political power factor in the suspect class status analysis.
B
The History and Significance of the Political Power Factor
Some history is necessary in order to understand the significance of the political power factor in equal
The starting point for evaluating the constitutionality of a legislative classification under equal protection principles has long been the rational basis test, which applies to economic and social regulation. See Metropolitan Casualty Ins. Co. v. Brownell,
In 1938, in United States v. Carolene Products Co.,
Footnote 4 has had such great impact on constitutional law that it is often referred to as the “most famous” and “most celebrated” footnote in the Supreme Court’s history. See, e.g., D. Hutchinson, “Symposium, Discrimination and Inequality: Emerging Issues, ‘Gay Rights’ for ‘Gay Whites’?: Race, Sexual Identity, and Equal Protection Discourse,” 85 Cornell L. Rev. 1358, 1379 n.107 (2000) (“ ‘most famous footnote’ ”); P. Linzer, “The Carolene Products Footnote and the Preferred Position of Individual Rights: Louis Lusky and John Hart Ely vs. Harlan Fiske Stone,” 12 Const. Com
Justice Powell, delivering the Harlan Fiske Stone Lecture at Columbia University in New York, observed that Carolene Products Co. was an “unremarkable” case. L. Powell, supra, 82 Colum. L. Rev. 1087. Justice Powell explained that footnote 4, which, ironically, was not only relegated to a footnote, but also was dicta, is the sole reason for the continuing fascination with the case. Indeed, Justice Powell noted that the footnote “now is recognized as a primary source of strict scrutiny judicial review,” which “many scholars think . . . actually commenced a new era in constitutional law.” (Internal quotation marks omitted.) Id., 1088.
Justice Powell’s explanation of the theory underlying footnote 4 is significant. “The fundamental character of our government is democratic. Our constitution assumes that majorities should rule and that the government should be able to govern. Therefore, for the most part, Congress and the state legislatures should be allowed to do as they choose. But there are certain groups that cannot participate effectively in the political process. And the political process therefore cannot be trusted to protect these groups in the way it protects most of us. Consistent with these premises, the theory continues, the Supreme Court has two special missions in our scheme of government: First, to clear away
Thus, a principal purpose underlying heightened scrutiny judicial intervention into the realm of legislative judgment—into its essential process of classification—is directly related to the political power factor. Heightened scrutiny analysis is designed as an extraordinary form of judicial intervention on behalf of those insular minority classes who presumably are unlikely to be able to rectify burdensome or exclusive legislation through the political process.
The United States Supreme Court’s equal protection case law reflects the importance of footnote 4 of Carolene Products Co., and the close tie between heightened scrutiny analysis and the relative political power of the group being considered for protected class status. See, e.g., San Antonio Independent School District v. Rodriguez,
Although the United States Supreme Court has not always cited the Carolene Products Co. footnote in its formulation of the test for heightened scrutiny, it has applied the political power factor in determining whether legislation affecting a particular class is to be made subject to that scrutiny, and its reasoning and language clearly have echoed the purpose of that factor as explained by Justice Powell. In Cleburne v. Cleburne Living Center, Inc., supra,
Contrary to the majority, therefore, I conclude that the political power of the group that seeks heightened scrutiny is a highly relevant consideration in the formulation and application of the four part test to determine whether the legislation at issue is to be subject to that degree of scrutiny. I would, therefore, as a matter of our own state constitutional law, retain the political power factor as an equal consideration in the equal protection calculus because it constitutes one of the fundamental purposes of the entire heightened scrutiny analysis. Finally, as I explain in part I C of this opinion, I agree with the majority’s formulation of how to define that factor and, in applying it to this case, I conclude that, under that definition, the plaintiffs are not entitled
C
Application of the Political Power Factor to the Right to Gay Marriage in Connecticut
I agree with the majority in its formulation of the political power factor: “[A] group satisfies the political powerlessness factor if it demonstrates that, because of the pervasive and sustained nature of the discrimination that its members have suffered, there is a risk that that discrimination will not be rectified, sooner rather than later, merely by resort to the political process. See Cleburne v. Cleburne Living Center, Inc., supra,
I first emphasize that this case must be viewed realistically. It is not a case about trying to remedy the history of discrimination against gay persons in this state in general. As I explain in part I C 1 of this opinion, our current legislation effectively has done that, insofar as any law—legislative or judicial—can do so. Just as the New Jersey Supreme Court recognized in its gay marriage case: “The legal battle in this case has been waged
I also emphasize that this factor should be applied in the context of Connecticut today. It is today’s Connecticut constitution that we are interpreting and applying; it is today’s Connecticut marriage and civil union statutes that are under consideration; the plaintiffs are residents of Connecticut; and it is the conditions of their lives in this state now and for the foreseeable future that should inform the question of whether they have been denied the equal protection of the laws under the Connecticut constitution by being denied the right to marry. With these emphases in mind, I conclude, for two fundamental reasons, that the political power factor compels the conclusion that the plaintiffs are not denied the equal protection of the laws by our civil union and marriage statutes.
1
The Legislative Trend in Connecticut
The first reason for my conclusion is that the trajectory of Connecticut legislation over the past decades clearly indicates the extraordinarily great and growing political power of the gay community generally and
Since 1971, when our Penal Code came into effect, noncommercial, consensual sexual relations, whether homosexual or heterosexual, in private between adults has not been the business of the criminal law. Commission to Revise the Criminal Statutes, Penal Code Comments, Conn. Gen. Stat. Ann. (West 2007) § 53a-65, comment, p. 277. Thus, the preexisting criminal prohibition against sodomy, for example, which targeted male homosexual conduct even when engaged in privately, was eliminated from our criminal laws. In addition, General Statutes §§ 53a-181j through 53a-181£, which have been in effect since 2000, make intimidation based on sexual orientation criminal.
Finally, on January 31, 2007, less than two years after the enactment of the civil union statute, the joint committee on the judiciary raised on its own Raised House Bill No. 7395 (2007), entitled “An Act Concerning Marriage Equality.” Raised House Bill No. 7395 defined marriage as “the legal union of two persons,” and specifically provided that a person is eligible to marry if such person is “[o]f the same or opposite sex as the other party to the marriage It specifically would have eliminated the previous statutory declarations “that the current public policy of the state of Connecticut is now limited to a marriage between a man and a woman”; General Statutes § 45a-727a (4); and that “marriage . . . is defined as the union of one man and one woman.” General Statutes § 46b-38nn. Raised House Bill 7395 would do everything that the majority does by constitutional adjudication in this lawsuit.
Simultaneously with the introduction of this bill in the judiciary committee, the cochairs of the committee held a news briefing in the state capitol in support of the bill. The public access television network, CT-N Connecticut Network, video-recorded that news briefing. See Videotape: Capitol News Briefing with the
Senator Andrew J. McDonald, the Senate cochair of the committee, noted that, since the enactment of the civil union legislation, there had been no public outcry regarding, and nothing but public acceptance of, civil unions. Id. Some of the remarks at that news briefing by Representative Michael P. Lawlor, the House cochair of the committee, indicate his view that the chances of the gay marriage bill passing were very good. Id. He noted the significant shift in public opinion over the past eleven years, when apparently the issue of gay marriage had begun to be discussed.
The public legislative hearings on the bill further show the extraordinary political support for gay marriage through legislation. Speaking in support of the bill were State Comptroller Nancy Wyman; Conn. Joint Standing Committee Hearings, Judiciary Committee, Pt. 17, 2007 Sess., p. 5312; State Treasurer Denise L. Nappier; id., p. 5339; Secretary of the State Susan Bysiewicz; id., p. 5395; Senator Edith Prague; id., p. 4771; Teresa C. Younger, executive director of the Permanent Commission on the Status of Women; id., p. 5258; and the mayors of three of our largest cities, namely, Dannel P. Malloy, the mayor of Stamford; id., p. 5343; Eddie A. Perez, the mayor of Hartford; id., p. 5331; and John DeStefano, Jr., the mayor of New Haven. Id., p. 5390. In addition to these state and municipal public officials, the bill was supported by the Hartford Court of Common Council; id., p. 5331; and by two major labor unions in the state, namely, the Connecticut State United Auto Workers CAP Council; id., p. 5326; and the Connecticut AFL-CIO. Id., p. 5333. In addition, support was registered from the American Civil Liberties Union of Con
Subsequently, the cochairs of the judiciary committee decided not to ask for a floor vote on the bill. Their reasons for doing so, however, are extremely significant, because they underscore the extraordinary growing political support for the bill. In a press release announcing their decision, Senator McDonald and Representative Lawlor stated that “several vote counts of legislators show the results to be encouragingly close,” but that “many lawmakers have requested more time before voting for the bill.” Press Release, Judiciary Chairman Will Not Seek Vote on Marriage Equality, but Are Encouraged by Increasing Public Support (May 11, 2007) (copy contained in the file of this case with the Supreme Court Clerk’s Office). Senator McDonald
The press release reported that a poll conducted in April, 2007, for the Hartford Courant by the Center for Survey Research and Analysis at the University of Connecticut showed that 49 percent of Connecticut residents favor same sex marriage, while 46 percent oppose it. Id. Senator McDonald stated that “[l]ike most people in Connecticut, I think that the governor has demonstrated an increased willingness to be open-
Other legislators were quoted in the press release as being in favor of the bill, acknowledging the rapid shift in public opinion, and expressing their belief that the bill would soon pass. Senator Mary Ann Handley stated: “I’ve long believed that gay and lesbian couples should have the same rights to marriage that heterosexual couples have and should not be treated differently by the government. I’m very encouraged that we have come closer this year to achieving this .... Full equality is definitely in reach.” (Emphasis added.) Id. Representative Beth Bye said that the great majority of feedback has been positive, stating: “The support shown has been immense . . . I’ve received numerous e-mails and phone calls of encouragement from my constituents, and even words of support from other legislators who actually oppose the legislation. It’s clear to me that opinions are moving in this direction.” (Emphasis added.) Id. Representative Toni Walker said that throughout her time in the legislature, she has seen a growing number of legislators switch their positions into the direction of equal marriage rights for same sex couples. Id. Representative Walker stated: “I’ve seen it for myself. Increasingly, as I sit down and talk with my colleagues, Fve found that they are changing their views toward the direction of marriage equality.” (Emphasis added.) Id.
It is to blink at political reality to ignore or to dismiss, as the majority does, this extraordinary and unprecedented public record. No other court that considers the
As a result, the majority joins only two other states, namely, California and Massachusetts, in mandating same sex marriage as a matter of state constitutional law. See In re Marriage Cases,
I disagree with the cramped notion of political power applied by the majority. The majority, relying on the plurality opinion in Frontiero v. Richardson,
Thus, the legislative history in our state for the past thirty-seven years, beginning with the passage of the Penal Code in 1971, and the public record discussed previously, are proof of the political power of gay persons in this state. Simply put, one cannot read the record of legislation over the past thirty-seven years, including the passage of the civil union legislation in 2005, watch the video of the press briefing following the introduction of the gay marriage bill in early 2007, read the
Consequently, I also disagree with the majority’s characterization of our state’s admirable record of legislation described previously as “supporting the conclusion that the subject group is in need of heightened constitutional protection.” (Emphasis in original.) In the context of equal protection jurisprudence, this characterization renders a group’s political power, as demonstrated by its ability to secure beneficial and protective legislation, essentially irrelevant.
Under the majority’s view, if the state has enacted a large body of legislation beneficial to or protective of a particular group—as this state has done with respect to gay persons—that means that the group lacks political power because the legislation is evidence of the group’s need for protection. But if the state has not enacted such legislation, that also undoubtedly would mean that the group lacks political power because of that lack of legislation. Indeed, that lack of such legislation is precisely what Chief Judge Kaye cited, in her dissent in Hernandez v. Robles, supra,
It is true that our long history, beginning in 1971, and running through 2005, of enacting legislation protective of the rights of gay persons demonstrates their need for protection. Of course the legislation was aimed at rectifying historic and ongoing wrongs. That is always what civil rights legislation aims to do. But it is a strangely narrow view of such legislation to say that it supports heightened scrutiny because it demonstrates the group’s need for protection. This view ignores the fact that the body of legislation obviously has another, equally important aspect: it also clearly demonstrates the political power of the group to bring about beneficial and protective legislation for the precise purpose of rectifying those wrongs. In my view, it is untenable to dismiss, as the majority does, this other important aspect of such legislation. Moreover, were there no record of such legislation in this state, the majority would undoubtedly—and justifiably—cite that as evidence of a lack of political power.
It is also true, as the majority notes, that, despite the growing political power of both women and African-Americans, neither gender nor race has since been questioned as a class entitled to strict scrutiny. That does not compel the conclusion, however, that political power must be relegated to secondary status in our own state constitutional protection jurisprudence. As I indicate in part II of this opinion, our' state constitution already specifically protects both gender and race, among other classes, as entitled to strict scrutiny. Thus, there is no need to consider even the possibility of a reclassification of those two classes under our constitu
2
Marriage Is a Fundamental Social Institution
The second reason why I conclude that the political power factor is particularly significant in the context of the present case is that marriage is a fundamental social institution. That being so, if it is to be changed, as the majority acknowledges that its decision does, it is appropriate that it be done by the democratic process, rather than by judicial fiat.
Marriage is more than a relationship sanctioned by our laws. It is a fundamental and ancient social institution that has existed in our state from before its found
Furthermore, that change is contrary to the public policy of the state as specifically declared by the legislature. The same section of the civil union statutory scheme that grants equal rights of marriage to civil unions specifically defines “marriage ... as the union of one man and one woman.” General Statutes § 46b-38nn; see also General Statutes § 45a-727a (“The General Assembly finds that ... [4] It is further found that the current public policy of the state of Connecticut is now limited to a marriage between a man and a woman.”).
It is an extreme act of judicial power to declare a statute unconstitutional. It should be done with great caution and only when the case for invalidity is established beyond a reasonable doubt. Kinney v. State,
Fundamental social institutions are the product of a web of history, tradition, custom, culture, widely shared expectations and law. But they are not static. They change. In my view, there are three ways in which such social institutions change, and sometimes the three ways will, to one extent or the other, overlap or combine with each other.
The first, and probably the most common, is by a process of gradual change over time, as a society’s
The second way in which a fundamental social institution may change is by legislation. Thus, the legislature may say, as a matter of public policy, that for a particular purpose or purposes, but not necessarily all purposes, a particular social institution will be recognized in a context in which it may not have been recognized previously. Our civil union statute is a good example of this kind of legislative change of a social institution. The legislature has said that all of the legal rights and obligations of the fundamental social institution of marriage will be extended beyond opposite sex couples to same sex couples, in a new and differently named social institution of civil union. In fact, by virtue of § 46b-38oo, the legislature specifically has provided that, except for certain purposes,
The virtue of these first two ways of changing a fundamental social institution is that each has the general support—either explicit or implicit—of the people. In the first way—by a natural process of social change— the people have voted for the change by their patterns of behavior over time. In the second way—by legislation— the people have voted through their duly elected representatives.
The third way is by judicial decision. In my view, this is the least desirable method of change of a fundamental social institution because it is effected, not through the people’s behavioral patterns or the votes of their elected representatives, but through the reasoning and analysis of judges, who are accountable to the people only through their oaths and consciences. In this way, a fundamental social institution, which is the product of a state’s history, tradition, custom, widely shared expectations and law, is changed by the decision of judges, who need not necessarily give deference to that history, tradition, custom and widely shared expectations. This is an extreme action for a court to take. Therefore, the court ought to be very cautious before
This is not to say, however, that a court should not, in engaging in the process of constitutional adjudication, change a fundamental social institution. When it is necessary to vindicate constitutional rights, it is the court’s obligation to do so, irrespective of the fact that the decision will change a fundamental social institution. See, e.g., Brown v. Board of Education,
Instead, this is a case in which the majority has given an answer that is not constitutionally compelled. The public record clearly indicates that the legislature is poised to consider and, in all likelihood, to enact gay marriage legislation. The majority in this case has, unfortunately, unnecessarily short-circuited this socially exemplary—and, in my view, superior— method of changing the nature of the fundamental institution of marriage in this state.
“We cannot escape the reality that the shared societal meaning of marriage—passed down through the common law into our statutory law—has always been the union of a man and a woman. To alter that meaning would render a profound change in the public consciousness of a social institution of ancient origin. When such change is not compelled by a constitutional imperative, it must come about through civil dialogue and reasoned discourse, and the considered judgment of the people in whom we place ultimate trust in our republican form of government. Whether an issue with such far-reaching social implications as how to define
II
SEXUAL ORIENTATION IS NOT A SUSPECT CLASS UNDER ARTICLE FIRST, §§ 1 AND 20, OF THE CONSTITUTION OF CONNECTICUT
For all of the reasons that I have explained in part I of this dissenting opinion, I also conclude that sexual orientation is not a suspect class under article first, § 1, and article first, § 20, of the constitution of Connecticut, as amended by articles five and twenty-one of the amendments. Put another way, if it is not a quasi-suspect class, a fortiori it is not a suspect class.
There is, however, another, more fundamental reason why sexual orientation is not a suspect class under our state constitution, and that reason is rooted in the language and history of the constitution itself. Article first, § 20, of the constitution of Connecticut already explicitly affords the equal protection of the law to eight specific characteristics—namely, “religion, race, color, ancestry, national origin, sex or physical or mental disability.” We consistently have held that any of these enumerated classes invokes strict scrutiny analysis. See Daly v. DelPonte,
Our caution in Moore v. Ganim,
Ill
THE STATUTORY DEFINITION OF MARRIAGE DOES NOT DISCRIMINATE ON THE BASIS OF GENDER
The plaintiffs claim that the civil union statute, which defines marriage as the union of a man and woman, creates an impermissible, gender based classification in violation of their right to equal protection under article first, § 20, of the constitution of Connecticut, as amended by articles five and twenty-one of the amendments.
Article first, § 20, of the constitution of Connecticut, as amended by articles five and twenty-one of the amendments, provides: “No person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his or her civil or political rights because of religion, race, color, ancestry, national origin, sex or physical or mental disability.” (Emphasis added.) Section 46b-38nn provides: “Parties to a civil union shall have all the same benefits, protections and responsibilities under law, whether derived from the general statutes, administrative regulations or court rules, policy, common law or any other source of civil law, as are granted to spouses in a marriage, which is defined as the union of one man and one woman.” (Emphasis added.) This statute does not differentiate between the genders because both men and women are equally barred from marrying a person of the same sex. Thus, so long as the civil union statute treats both genders equally in prohibiting both from entering a same sex marriage, it does not run afoul of the constitutional provision barring discrimination on the basis of sex.
Linguistically, the plaintiffs’ claim fails. They are not prohibited from marrying “because of [their] . . . sex . . . .” They are prohibited from marrying because of their sexual orientation.
The state provision was adopted by referendum in 1974, while the proposed equal rights amendment to the federal constitution was circulating among the states for possible ratification. See Conn. Const., amend. V. The legislative history of amendment Y makes it clear that the intent of the legislature was to remedy the past unequal treatment of women, as compared to men, in many situations. See, e.g., 15 H.R. Proc., Pt. 2, 1972 Sess., pp. 872-73 (Representative David H. Neiditz, describing the types of discriminatory laws to be invalidated by the proposed amendment, stated: “[Laws] to safeguard the health and morals of women, our laws limiting the number of hours which women may work, [restricting] women to certain kinds of employment and requiring] employers of women to give them special benefits, such as seats in factories. Instead of protecting women, these laws have served only to hinder this economic advancement, to [channeling] most women into the lowest paying and the least rewarding of jobs.”); id., p. 877 (Representative Francis J. Collins, remarking
The plaintiffs rely on McLaughlin v. Florida,
McLaughlin and Loving involved similar statutes. The statute at issue in McLaughlin criminalized the cohabitation of a white man and an African-American woman, or an African-American man and a white woman. McLaughlin v. Florida, supra,
The present case is distinguishable from Loving and McLaughlin. There has been no showing that the state’s civil union statute was passed with the purpose of discriminating based on gender. The absence of such evidence, or even a credible argument in support of the claim of gender discrimination, is highlighted by the contrast with both Loving and McLaughlin. In both of those cases, despite the fact that the law was applied equally to both races, it was clear which racial group was being favored and which disfavored.
IV
THE STATUTORY DEFINITION OF MARRIAGE DOES NOT DEPRIVE THE PLAINTIFFS OF THE FUNDAMENTAL CONSTITUTIONAL RIGHT TO MARRY
Finally, I address the plaintiffs’ claim that the civil union statute’s exclusion of same sex couples from marriage violates their right to due process under article
Ordinarily, in determining whether our state constitution affords a particular fundamental right, we would employ the familiar test articulated in State v. Geisler,
In the present case, however, I conclude that a full Geisler analysis is not necessary, because in my view the dispositive issue is the scope of the right at issue. There is no doubt that, as I explain in the following discussion, there is a fundamental right to marry under our state constitution. The question is how to define that right for constitutional purposes. The plaintiffs claim that the fundamental right is the right to marry a person of one’s choice and, therefore, it should be construed to include a person of the same sex. The state maintains, to the contrary, that the fundamental
If the plaintiffs are correct that the fundamental right to marry is defined, for constitutional purposes, broadly enough to include the right to marry a person of one’s choice, then they would have a viable claim that it includes the right to marry a person of the same sex. If the state is correct, however, that the fundamental right to marry is not defined that broadly and that it is defined, instead, as the right to marry a person of the opposite sex, then the plaintiffs’ claim necessarily fails. I conclude that the fundamental right to marry, under our state constitution, is properly defined as the right to marry a person of the opposite sex and, therefore, does not include the right to marry a person of the same sex.
It is well established that the right to marry is guaranteed by our state constitution. Gould v. Gould,
The United States Supreme Court has given wise guidance to the judicial process of defining fundamental rights for constitutional purposes. “[W]e ha[ve] always been reluctant to expand the concept of substantive due process because guideposts for responsible deci
“Our established method of substantive-due-process analysis has two primary features: First, we have regularly observed that the [djue [pjrocess [cjlause specially protects those fundamental rights and liberties which are, objectively, deeply rooted in this [njation’s history and tradition . . . and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed .... Second, we have required in substantive-due-process cases a careful description of the asserted fundamental liberty interest. . . . Our [njation’s history, legal traditions, and practices thus provide the crucial guideposts for responsible decisionmaking . . . that direct and restrain our exposition of the [djue [pjrocess [cjlause.” (Citations omitted; internal quotation marks omitted.) Washington v. Glucksberg,
First, as I explained previously in this opinion, marriage is a fundamental institution in our state, as well as our nation, and recognizing it to include same sex marriage would be to change its nature. That is a change that should be left to the realm of public debate and legislative action, particularly because, as I also explain in part I of this opinion, the legislature is poised to consider doing so.
Second, to define the fundamental right to marry so broadly as to include the right to marry a person of the same sex would be inconsistent with the notion that we should be careful in describing the right at issue, with the notion that we should exercise our authority with great restraint, and with the notion that we should exercise the utmost care when asked to break new ground. To define it as the plaintiffs suggest would, on the contrary, display a lack of the utmost care in breaking new ground and in defining the right at issue, and would be to substitute a personal policy choice for sound constitutional analysis.
The plaintiffs rely on Loving v. Virginia, supra,
The court made a similar connection in one of the primary decisions on which it relied in Loving. In Skinner v. Oklahoma,
The plaintiffs also claim that the court’s decision in Griswold v. Connecticut,
Similarly, the plaintiffs’ reliance on Turner v. Safley,
The plaintiffs also rely on Lawrence v. Texas,
The plaintiffs argue that the Supreme Court’s repudiation in Lawrence of the narrow definition of the right at issue in Bowers requires the conclusion that the right at issue in the present case also must be defined broadly. That argument ignores the significant context of Lawrence as opposed to the present case.
In tracing the developments in its case law following Bowers and explaining why those subsequent developments required the overruling of Bowers, the court in
Thus, the two concerns that informed the court’s decision in Lawrence, protecting citizens from government intrusion in their right to privacy, and protecting a specific group from stigmatization, are not present in our case. First, the right at issue in the present case is drastically different from that at issue in Lawrence. The plaintiffs do not seek protection from governmental intrusion of their privacy; instead, they seek affirmative action on the part of the government—they seek official recognition of the status of a relationship that would require a significant change in a fundamental societal institution. Second, the civil union statute does not stigmatize homosexuals. As I set forth in part I of this
V
APPLICATION OF THE RATIONAL BASIS STANDARD
Having concluded that Connecticut’s statutory definition of marriage “does not touch upon either a fundamental right or a suspect [or quasi-suspect] class”; (internal quotation marks omitted) Contractor’s Supply of Waterbury, LLC v. Commissioner of Environmental Protection,
The paradigm of a rational basis upon which challenged legislation may be sustained is that the legislature is not required to solve all aspects of a social problem, or address all aspects of a social issue, at once. It is entitled to take things one step at a time. Id., 105 (“the legislature has the freedom to craft legislation to accomplish its purpose in gradual steps”). That is precisely the basis on which our marriage and civil union statutes are premised. The legislature has, since 1971, consistently been enacting legislation beneficial to and protective of gay persons. It has been considering the claims of gay persons to secure the right to marry for eleven years, according to Representative Lawlor, who should know. It took a major step, in 2005, by enacting the civil union law, which afforded parties to civil unions all of the rights and obligations of marriage, except the name of the institution. It then had before
I therefore dissent, and would affirm the judgment of the trial court.
Article first, § 1, of the constitution of Connecticut provides: “All men when they form a social compact, are equal in rights; and no man or set of men are entitled to exclusive public emoluments or privileges from the community.”
Article first, § 20, of the constitution of Connecticut, as amended by articles five and twenty-one of the amendments, provides: “No person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his or her civil or political rights because of religion, race, color, ancestry, national origin, sex or physical or mental disability.”
I use the term “heightened scrutiny” in this dissent to refer collectively to strict scrutiny and intermediate level scrutiny.
Like the msyority, for convenience and economy of language, I use the term “gay persons” to refer to both gay men and lesbians.
See footnote 2 of the majority opinion for the names of all the plaintiffs involved in this appeal.
In reaching this conclusion, I emphasize that, if I were a legislator voting on legislation, I would recognize the legitimacy of the plaintiffs’ aspirations to have the legal status of marriage and would vote accordingly. I am, however, not a legislator; I am a judge, and my analysis of the applicable legal principles leads me to conclude, contrary to the majority, that the legislation at issue is not unconstitutional. That is where my obligation must end, and that of the legislature begin. As Justice Madsen stated, writing for the majority in Andersen v. King County,
I also agree with the majority that the plaintiffs are similarly situated with respect to opposite sex couples regarding the right to marry.
The New York Times is reported to have the third largest newspaper circulation in the nation, exceeding one million copies daily. See http://www.huffingtonpost.com/2008/04/28emnew-york-timesem-cirul_n_ 98991.html (last visited October 8, 2008) (copy contained in the file of this case with the Supreme Court Clerk’s Office).
Compare Brown v. Board, of Education,
The other state is California, which calls its statutory scheme domestic partnership, rather than civil union. See In re Marriage Cases,
In this respect, I also disagree with the majority opinion that the Vermont and New Jersey courts did not address the name of the status that they mandated for same sex couples. See Baker v. State, supra,
Indeed, both the Vermont and New Jersey cases should give one pause when considering the premise of the majority’s opinion, namely, that our civil union statute, by defining marriage as the union of a man and a woman, relegates such a union to second class citizenship. It is difficult to read the thoughtful and sensitive decisions of those two courts and conclude that, by deciding that their state constitutions required civil unions but not marriage for same sex couples, they were denigrating the plaintiffs whose claims they vindicated in large part.
In this regard, I acknowledge the deeply held feelings and perceptions of the plaintiffs that, in their view, a civil union is of lesser social status and inferior to a marriage. I respect those feelings and perceptions. We do not know, however, that this is the prevailing view of the citizenry in general.
Judge Hand, quoting Oliver Cromwell, stated: “I should like to have every court begin, ‘I beseech ye . . . think that ye may be mistaken.’ ” L. Hand, Morals in Public Life (1951), in The Spirit of Liberty 225, 230 (I. Dillard ed., 1952).
The demographic trend since 1990 of same sex couples living together and identifying themselves as such, and the public acceptance of that trend, appears to track what happened with opposite sex couples living together. According to the Williams Institute of the University of California at Los Angeles (UCLA), which analyzed “trends among same-sex couples using the 1990 and 2000 United States decennial census enumerations along with data from the 2002 through 2006 American Community Surveys,” nationally “[t]he number of same-sex couples reporting themselves as ‘unmarried partners’ has quintupled since 1990 from 145,000 to nearly 780,000.” G. J. Gates, “Geographic Trends Among Same-Sex Couples in the U.S. Census and the American Community Survey,” The Williams Institute, UCLA School of Law (November 2007) p. 1. This is an increase twenty-one times faster than the United States population increase from 1990 to 2006. Id. One of the two important factors contributing to increases in same sex couples is “[c]oming out. National polls since the early 1990s clearly demonstrate an increased acceptance of lesbian and gay people and same-sex couples in the United States population. This acceptance results in increasing numbers of lesbians and gay men being more forthcoming about their sexual orientation and living arrangements in surveys.” Id.
In the New England slates, there has been a 398 percent increase in the number of same sex couples living together from 1990 to 2006. Id., p. 10. In Conned icut, the increase is generally in line with that percentage increase: the number of same sex unmarried partner couples has increased from 2088 in 1990, to 9540 in 2006. Id., p. 17. This nationwide trend, mirrored in our state and our neighboring New England states, undermines the majority’s certainty that a civil union, which is the legal equivalent of marriage for all of those same sex couples, is undoubtedly of lesser social status than a marriage.
Accordingly, the majority’s suggestion that my interpretation of the political power factor as it applies to this case would mean that neither women nor African-Americans would be entitled to heightened scrutiny is both wrong and irrelevant. That is, as I explain more fully in part II of this dissent, under our state constitution classifications based on gender or race are specifically entitled to strict scrutiny. Therefore, the majority’s suggestion that my analysis of the political factor under the state constitution would mean that neither women nor African-Americans would be entitled to heightened scrutiny is unwarranted.
Moreover, I am deciding this case as a justice of the Connecticut Supreme Court in 2008 under our state constitution. I am not deciding, and have no authority to decide, the different cases of gender discrimination in 1973, or racial discrimination in 1954, as a justice of the United States Supreme Court, under the federal constitution—although I agree that in both cases, the court correctly accorded heightened scrutiny to those classes. Consequently, the majority’s criticism of how my analysis in the present case under the state constitution would or would not have decided those cases is simply beside the point. Engaging in retroactive hypothetical decision making does not strike me as a useful method of adjudication. I further note that race
General Statutes § 53a-181j provides: “(a) A person is guilty of intimidation based on bigotry or bias in the first degree when such person maliciously, and with specific intent to intimidate or harass another person because of the actual or perceived race, religion, ethnicity, disability, sexual orientation or gender identity or expression of such other person, causes serious physical injury to such other person or to a third person.
“(b) Intimidation based on bigotry or bias in the first degree is a class C felony.”
General Statutes § 53a-181k provides: “(a) A person is guilty of intimidation based on bigotry or bias in the second degree when such person maliciously, and with specific intent to intimidate or harass another person because of the actual or perceived race, religion, ethnicity, disability, sexual orientation or gender identity or expression of such other person, does any of the following: (1) Causes physical contact with such other person, (2) damages, destroys or defaces any real or personal property of such other person, or (3) threatens, by word or act, to do an act described in subdivision (1) or (2) of this subsection, if there is reasonable cause to believe that an act described in subdivision (1) or (2) of this subsection will occur.
“(b) Intimidation based on bigotry or bias in the second degree is a class D felony.”
General Statutes § 53a-181i provides: “(a) A person is guilty of intimidation based on bigotry or bias in the third degree when such person, with specific intent to intimidate or harass another person or group of persons because of the actual or perceived race, religion, ethnicity, disability, sexual orienta
“(b) Intimidation based on bigotry or bias in the third degree is a class A misdemeanor.”
I recognize that, as the majority points out, General Statutes § 46a-81r provides that none of the nondiscrimination statutes mentioned previously
Indeed, the remarks of Representative Richard D. Tulisano, in explaining § 46a-81r on the floor of the House of Representatives in 1991, are consistent with that view. He indicated that “in this political document, there is no intent here to say that ... by passing and expressing our desire to protect people . . . it is . . . necessarily [to] mean to say we affirmatively vote for that particular lifestyle, and as a political document that is left there to tell people, that is something for each individual to make up for themselves, but the state is not going to be doing it in that particular area.” 34 H.R. Proc., Pt. 7,1991 Sess., pp. 2616-17. Representative Tulisano also explained that this language was inserted to rebut “false . . . pieces of literature” that had suggested to the contrary, and that “[the act] deals with stopping acts against people, to protect people from others, to make sure people aren’t held back from their rights as individuals, as humans that they should be entitled to, not to grant particular rights.” Id., p. 2525.
In this connection, I also note that the majority cites, as evidence of “a development that many view as reflecting widespread opposition to equal rights for gay persons,” the fact that twenty-five states have passed constitutional amendments prohibiting same sex marriage. I disagree with the majority’s use of this as evidence of such opposition. It is simply unfair to conflate opposition to same sex marriage with bigotry, as the majority suggests. Persons may have deeply and conscientiously held views about the desire to retain the traditional definition of marriage without being guilty of opposing equal rights for gay persons based on their sexual orientation. “Until a few decades ago, it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of [a] different sex. A court should not lightly conclude that everyone who held [or holds] this belief was [or is] irrational, ignorant or bigoted.” Hernandez v. Robles,
The other state is California. See footnote 9 of this opinion.
Indeed, in 2005,1he judiciary committee had raised a gay marriage bill; Judiciary Committee Raised Bill No. 963, “An Act Concerning Marriage Equality”; but reported out of committee the civil union bill instead.
More specifically, when asked about this, Representative Lawlor remarked that, everyone “in the building” was of the opinion that passage of a gay marriage bill was “inevitable.” Videotape: Capitol News Briefing with the Chairs of the Judiciary Committee on the Same Sex Marriage Bill, supra.
In listing this demonstration of political support for the bill, I have attempted to confine myself to public officials and to groups that would not ordinarily be considered to be partisan on the issue of gay marriage. In addition, however, support was registered by three groups that could be considered to be partisan, namely, Love Makes A Family, the Hartford Gay and Lesbian Health Collaboration, and Par ents, Families, Friends of Lesbians and Gays, as well as twenty named individuals. Registering opposition were two partisan groups, namely, The Institute for Marriage and Public Policy, and the Hartford Chapter of the Family Institute of Connecticut, as well as two members of the clergy and seventeen named individuals.
The majority criticizes me for citing both the news conference accompanying the introduction of the 2007 gay marriage bill and the press release of the cochairs of the judiciary committee following the favorable action on it by the committee. I acknowledge that my use of these materials is unusual, but I see nothing in them that seems to be the stuff of factual controversy. As the majority states, in quoting Justice Felix Frankfurter in Watts v. Indiana,
The decision of the Hawaii Supreme Court in 1993, which was subsequently rendered ineffectual by virtue of a state constitutional amendment, does not belong in this category. See Baehr v. Lewin,
Thus, the majority’s reference to the passage of gay rights legislation in California is irrelevant, because under California constitutional law, the
Other courts have registered their understanding that the legislative record is highly relevant evidence of the political power of gay persons in determining that gay persons should not be accorded protected status for purposes of equal protection analysis. See, e.g., Conaway v. Deane, supra,
The majority presents as support for its dismissal of the political power factor the fact that, despite the increased political power of women since Frontiero, that case has not been overruled. As I indicate in the accompanying text of this opinion, no one has ever suggested that it should be, and neither do I. Its holding that courts should accord heightened scrutiny to equal protection claims based on gender discrimination was correct, and remains correct. It is also true, however, that the court relied on Frontiero to apply heightened scrutiny to an equal protection claim based on gender discrimination, where the group claiming discrimination consisted of men; see Craig v. Boren,
I also disagree with the majority that “removing the barrier to same sex marriage is no different than the action taken by the United States Supreme Court in Loving v. Virginia, [
Most of the exceptions are simply to avoid duplication of terminology where the statutes already include a reference to civil union as well as
The plaintiffs also rely on article first, § 10, of the constitution of Connecticut, which provides: “All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.” That constitutional provision, however, does not provide support for the plaintiffs’ claim. “We have interpreted article first, § 10, as a provision protecting access to our state’s courts, which does not itself create new substantive rights.” Moore v. Ganim, supra,
See footnote 28 of this opinion for the text of article first, § 10, of the constitution of Connecticut.
Article first, § 8, of the constitution of Connecticut provides in relevant part: “No person shall ... be deprived of life, liberty or property without due process of law . . . .”
In this connection, I note my agreement with Justice Zarella’s trenchant criticism of the majority’s Geisler analysis in part IV of his dissenting opinion.
I emphasize here that this conclusion means only that the civil union statute, which defines marriage as the union of a man and woman; General Statutes § 46b-38nn; does not deprive the plaintiffs of a fundamental right. The legislature is free, of course, to expand the legal definition of marriage to include persons of the same sex.
Dissenting Opinion
dissenting. I respectfully disagree with the conclusion of the majority that sexual orientation is a quasi-suspect classification for equal protection purposes under our state constitution and that our marriage statute barring same sex marriage therefore is subject to heightened or intermediate scrutiny. I agree, instead, with the dissenting opinion of Justice Borden and join in that opinion. In a highly persuasive opinion, Justice Borden concludes, in pertinent part, that sexual orientation does not constitute either a quasi-suspect or suspect classification under our state constitution, and that our marriage and civil union statutes satisfy the state constitution when analyzed under the traditional rational basis test. I cannot improve upon Justice Borden’s analysis, and I therefore write separately simply to emphasize two points.
First, “[i]t is well established that a validly enacted statute carries with it a strong presumption of constitutionality .... The court will indulge in every presumption in favor of the statute’s constitutionality .... Therefore, [w]hen a question of constitutionality is raised, courts must approach it with caution, examine it with care, and sustain the legislation unless its invalidity is clear.” (Internal quotation marks omitted.) State v. McKenzie-Adams,
Moreover, because of this strong presumption favoring a statute’s constitutionality, “those who challenge its constitutionality must sustain the heavy burden of proving its unconstitutionality beyond a reasonable doubt." (Emphasis added; internal quotation marks omitted.) Id. Our jurisprudence thus requires the highest possible standard of proof in order to sustain a challenge to the constitutionality of a statute validly enacted by our legislature. In my view, Justice Borden’s compelling opinion respects both of these fundamental, time-honored principles.
Accordingly, I respectfully dissent.
Dissenting Opinion
dissenting. The majority concludes that the marriage laws,
I
At the outset, I note that I agree with the majority that the trial court improperly concluded that the plaintiffs
II
I turn, therefore, to the plaintiffs’ claim under the equal protection provisions of our state constitution. As the majority correctly states, “[t]he concept of equal protection [under both the state and federal constitutions] has been traditionally viewed as requiring the uniform treatment of persons standing in the same relation to the governmental action questioned or challenged. . . . Conversely, the equal protection clause places no restrictions on the state’s authority to treat dissimilar persons in a dissimilar manner. . . . Thus, [t]o implicate the equal protection [clause] ... it is necessary that the state statute ... in question, either on its face or in practice, treat persons standing in the
Without any analysis, the majority simply accepts the plaintiffs’ assertion that our state’s marriage laws
Because it is central to a proper equal protection analysis, I begin with the fundamental subject and purpose of our laws limiting marriage to the union of one man and one woman. As many courts have recognized, the primary societal good advanced by this ancient institution is responsible procreation.
It also is clear that the link between traditional marriage and procreation forms the basis of the institution’s status as a fundamental civil right under the federal constitution. See Zablocki v. Redhail,
Thus, the United States Supreme Court and many of our sister state courts have recognized that traditional marriage serves two separate but closely related functions, both deriving from the capacity of a couple comprised of one man and one woman to propagate children. First, in order to advance society’s interest in the survival of the human race, the institution of marriage honors and privileges the only sexual relationship—that between one man and one woman—that can result in the birth of a child.
It is obvious to me, therefore, that limiting the institution of marriage to one man and one woman does not create a classification based on sexual orientation. Rather, the limitation creates a classification based on a couple’s ability to engage in sexual conduct of a type that may result in the birth of a child. See Morrison v. Sadler, supra,
It also is obvious that a couple that is incapable of engaging in the type of sexual conduct that can result in children is not similarly situated to a couple that is capable of engaging in such conduct with respect to legislation that is intended to privilege and regulate that conduct. Cf. Michael M. v. Superior Court,
Having concluded without any basis that the marriage laws classify on the basis of sexual orientation, the majority then concludes that same sex couples are similarly situated to opposite sex couples with respect to the marriage laws because gay persons “share the same interest in a committed and loving relationship as heterosexual persons who wish to marry.” The majority, however, makes no attempt to explain why the state ever would have had an interest in promoting or regulating committed and loving relationships that have no potential to result in the birth of a child. It simply assumes that loving commitment between two adults is the essence of marriage, even though the essence of marriage is the very question at the heart of this case.
Ill
Because I would conclude that the plaintiffs cannot prevail on their equal protection claim, I must address their substantive due process claim under article first,
A
I first address the plaintiffs’ claim that any two consenting, unrelated adults have a fundamental right to marry regardless of their respective sexes. “Our substantive due process case law under the state constitution . . . clearly establishes that certain fundamental rights are protected.” Ramos v. Vernon,
As I have indicated, the right of one man and one woman to marry has been recognized as a fundamental right under the federal constitution. See Zablocki v. Redhail, supra,
Indeed, to the contrary, the relationship between men and women and the procreative potential of that relationship were the defining concerns of marriage long before the social compact that is our state constitution came into existence. The preamble to our state constitution provides in relevant part: “The People of Connecticut ... do, in order more effectually to define, secure, and perpetuate the liberties, rights and privileges which they have derived from their ancestors-, hereby, after a careful consideration and revision, ordain and establish the . . . constitution and form of civil government.”
B
Having concluded that there is no fundamental right to same sex marriage, I next must determine whether there is a rational basis for the laws limiting marriage to one man and one woman. See, e.g., Ramos v. Vernon, supra,
In my view, the state’s interests in promoting and regulating procreative conduct are legitimate. Indeed, they are compelling. I further believe that limiting marriage to one man and one woman is rationally related
The plaintiffs rely on several sociological studies that have concluded that “children of same sex parents are
The plaintiffs also contend that procreation has “[n]ever” been the purpose of marriage. (Emphasis added.) In support of this startling claim, the plaintiffs note that opposite sex couples who choose not to procreate or who are incapable of procreating are not and never have been prohibited from marrying. Even if the institution of marriage is overinclusive, however, “[a] [s]tate does not violate the [e]qual [protection [c]lause merely because the classifications made by its laws are imperfect. If the classification has some reasonable basis, it does not offend the [constitution simply because the classification is not made with mathematical nicety or because in practice it results in some inequality. . . . The problems of government are practical ones and may justify, if they do not require, rough accommodations—illogical, [though] it may be, and unscientific.” (Citation omitted; internal quotation
I also would note that married couples who choose not to procreate can change their minds. In addition, until very recently, the nature and causes of infertility were not well understood and it was impossible to predict with certainty whether a marriage that appeared to be barren ultimately would prove to be so. Under such circumstances, the requirement that a married couple consist of one man and one woman was the requirement that the couple be able to procreate.
The plaintiffs further claim that a state policy based on a belief that marriage between one man and one woman promotes responsible procreation is precluded both by the civil union law, General Statutes § 46b-38aa et seq., and by General Statutes § 45a-727a (3), which provides that, for purposes of adoption, “[t]he best interests of a child are promoted when the child is part of a loving, supportive and stable family, whether that family is a nuclear, extended, split, blended, single parent, adoptive or foster family . . . .” Specifically, the plaintiffs contend that, because “the civil union law provides the same state based legal protections and obligations with respect to children for same sex couples as for married couples,” and because § 45a-727a (3) evinces “a legislative policy that family configuration is not a relevant factor in determining the best interests of children . . . any proffered issue related to the welfare of children must be legally irrelevant as a reason that the state denies marriage to same sex couples.” I am not persuaded. I see no reason why the state rationally could not continue to promote the public’s vital interest in responsible procreation by limiting marriage to opposite sex couples while enacting a civil union law in recognition of the legitimate interests of same sex couples.
With respect to the adoption laws, the legislative history of § 45a-727a (3) indicates that the statute was intended to address the situation in which “a person already sharing parental responsibility for a child [is prevented] from adopting a child even when absolutely everyone involved agrees that such an adoption would be in the best interest of the child.” Conn. Joint Standing Committee Hearings, Judiciary, Pt. 9,2000 Sess., p. 2773, testimony of Reverend Mark Santucci; see also id., p. 2864, testimony of Representative Patrick Flaherty (“[t]he bill makes it possible for a child who has one parent to be adopted by a second person who shares parental responsibilities for that child”).
The plaintiffs also contend that the state could not rationally conclude that extending marriage to same sex couples would prevent procreation and child rearing by opposite sex couples. I agree with the plaintiffs that it is doubtful whether any state policy could entirely
Finally, I address the plaintiffs’ claim that, even if there once was a link between procreation and marriage, such a link was based on sexual stereotypes and other outdated notions about the nature of family life, and such notions are no longer viable in light of the “steady legal, sociological and economic developments since the late nineteenth century . . . .” They contend that “[m]arriage is now an institution of legal equality between . . . two parties whose respective rights and responsibilities are equal, mutual and reciprocal. The state’s astonishing insistence on resurrecting legal restrictions that pigeonhole individuals ... on [the basis of] broad generalizations about sex roles flies in the face of rudimentary sex discrimination law.” It is undisputed that the role of women in public and economic life has increased dramatically in the last century and that women have achieved an unprecedented degree of equality with men in our nation. That does not mean, however, that the procreative roles of men and women have changed or that there is no distinction between the parenting roles of men and women.
Accordingly, I reject the plaintiffs’ claim, and the majority’s conclusion, that redefining marriage to include same sex couples takes nothing away from the institution. See part VIE of the majority opinion (redefining marriage “would expand the right to marry without any adverse effect on those already free to exercise the right” [emphasis in original]). The redefinition of marriage takes away society’s special concern with the institution as one involving the great societal risks and benefits of procreative conduct. The majority’s reliance on Loving v. Virginia, supra,
IV
Although there is no need for me to reach many of the other issues that the majority addresses, I am compelled to state that I am extremely troubled by several aspects of its analysis. First, as Justice Vertefeuille notes in her dissenting opinion, those who challenge the constitutionality of legislation “must sustain the heavy burden of proving its unconstitutionality beyond a reasonable doubt.” (Emphasis added; internal quotation marks omitted.) State v. McKenzie-Adams,
Second, the majority states that “[t,]his court also has determined that, for purposes of the state constitution, [the] two-tier analysis of the law of equal protection . . . that distinguishes only between legislation requiring strict scrutiny, which typically fails to pass constitutional muster, and legislation requiring a rational basis, which typically does pass, is not sufficiently precise to resolve all cases. Legislation that involves rights that may be significant, though not fundamental, or classifications that are sensitive, though not suspect, may
Third, I am troubled by the majority’s analysis under State v. Geisler,
Moreover, none of the six Geisler factors supports a conclusion that sexual orientation is a quasi-suspect class in this state. With respect to the first Geisler factor, the text of the state constitutional provisions, I am not persuaded by the majority’s analysis for the reasons
Because the majority’s analysis under Geisler’s second factor, decisions of this court and the Appellate Court, and the third factor, decisions of the federal courts, are closely intertwined, I address them together. The majority acknowledges that the Appellate Court and virtually all federal courts have concluded that sexual orientation is not a suspect classification but rejects the reasoning of these courts because they “relied on the holding of Bowers v. Hardwick, [
The majority may be correct on this point, which it already has made in the first part of its analysis applying
Similarly, with respect to the fourth prong of Geisler, the decisions of our sister states, if the majority is not persuaded by the reasoning of the majority of state courts that have concluded that sexual orientation is not a suspect class, then the factor is neutral, at best. The fact that only a small minority of states agree with the majority’s independent analysis under the federal test cannot be considered as favoring the plaintiffs’ claim.
The majority declines to address the fifth prong of Geisler, the history of our state’s equal protection provisions, because, according to the majority, “[n]either the plaintiffs nor the defendants contend that the history of this state’s equal protection provisions . . . bears materially on the determination of whether [sexual orientation is] a quasi-suspect class[ification].” Footnote 73 of the majority opinion. To the contrary, however, the defendants expressly contend that “nothing in Connecticut’s ‘unique historical record’ supports the conclusion that [the equal protection] provisions of the state constitution . . . were intended to protect sexual orientation as a suspect classification” and that “it is not possible to conclude that the framers intended [these provisions] to protect sexual orientation as a suspect
With respect to the sixth Geisler factor, economic and sociological considerations, the majority focuses on the effect that denying marriage to same sex couples purportedly has on same sex couples and their children. The question under review, however, is whether the state constitution requires this court to treat sexual orientation as a suspect classification, not the constitutionality of excluding same sex couples from marriage. In my view, this Geisler factor requires this court to examine existing cultural and economic conditions in the state in order to determine whether Connecticut citizenry have expectations that are not adequately protected by the federal constitution. Cf. State v. Bernier,
V
Contrary to the majority’s purported belief that society’s sole justification for preserving traditional marriage between one man and one woman is the tautological claim that “marriage is heterosexual because it just is”; (internal quotation marks omitted) Conaway v. Deane, supra,
Accordingly, I reject the majority’s conclusion that limiting marriage to one man and one woman is unconstitutional. If the state’s interests in promoting and regulating procreation are no longer sufficient to warrant the continuation of traditional marriage, then the decision to terminate that ancient institution is appropriate for the democratically elected legislature. To end an institution that the plaintiffs contend is time honored and special by judicial fiat is a usurpation of the legislative prerogative and a violation of the fundamental right of the people, on which the very existence of our constitution is premised, “to define, secure and perpetuate the liberties, rights and privileges which they have derived from their ancestors . . . .” Conn. Const., preamble.
In their complaint, the plaintiffs seek a judgment declaring that, “[t]o the extent that any statute, regulation, or common-law rule ... is applied to deny otherwise qualified individuals from marrying because they wish to marry someone of the same sex or are gay or lesbian couples, such statutes, regulations, and common-law rules violate the equal protection provisions ... of the Connecticut [constitution.” There is no dispute in this case that, under this state’s common law and statutes governing marriage, same sex couples are barred from marriage. For convenience, we refer to these laws collectively as “marriage laws.”
See General Statutes § 46b-38nn.
See footnotes 5 and 6 of the majority opinion for the relevant text of these constitutional provisions.
The plaintiffs are identified in footnote 2 of the majority opinion.
E.g., Zablocki v. Redhail,
See In re Marriage Cases,
The plaintiffs state baldly that procreation “[n]ever” has been the purpose of marriage. (Emphasis added.) In support of this statement, they point to the civil union law enacted in 2005, which grants the same rights and privileges as marriage, and to the fact that proof of the ability to procreate never has been a requirement of marriage. I address these arguments in part HI of this dissenting opinion. It is sufficient at this point in my analysis to state that it is impossible to contemplate the development of the institution of traditional marriage between one man and one woman without recognizing that responsible procreation and the rearing of children were central to that development. If the purpose of marriage was not to promote and regulate procreative conduct, what was its purpose?
The plaintiffs argue that the states are precluded from recognizing a privileged status for heterosexual conduct by virtue of the United States Supreme Court’s decision in Lawrence v. Texas,
In addition, see Rostker v. Goldberg,
Contrary to the majority’s assertion that, “[although it may be argued that the state’s interest in regulating procreative conduct constitutes a rational basis for limiting marriage to opposite sex couples . . . that rationale does not answer the entirely different question of whether same sex and opposite sex couples are similarly situated”; footnote 19 of the majority opinion; the purpose of the marriage statutes is dispositive of the question of whether same sex couples are similarly situated to opposite sex couples. See part III of the majority opinion (“[t]he similarly situated inquiry focuses on whether the [plaintiff is] similarly situated to another group for purposes of the challenged government action” [emphasis added; internal quotation marks omitted]). Courts do not make a generalized determination that classes are similarly situated with respect to all state action, regardless of its purpose. Compare Michael M. v. Superior Court, supra,
The majority states that “this state’s bar against same sex marriage effectively precludes gay persons from marrying”; (emphasis in original) footnote 24 of the majority opinion; and that “[i]f . . . the intended effect of a law is to treat politically unpopular or historically disfavored minorities differently than persons in the majority or favored class . . . the very existence of the classification gives credence to the perception that separate treatment is warranted for the same illegitimate reasons that gave rise to the past discrimination in the first place.” (Citations omitted; emphasis added.) Part I of the majority opinion. The fact that gay persons have been subject to discriminatory conduct in some contexts does not prove, or even imply, however, that same sex couples have been barred from marriage because they are gay. Indeed, gay individuals never have been barred from marriage. Moreover, the existence of a classification based on the ability of a couple to engage in the type of sexual conduct that can result in the birth of a child cannot give credence to the notion that another, invidious classification, i.e., one based on sexual orientation, is justified.
The reasoning of the court, in In re Marriage Cases,
The majority appears to suggest that this court’s statement in State v. Long,
To the extent that the majority suggests that anyone who opposes same sex marriage must harbor animus toward gay persons—an impression conveyed by the prevailing tone of the majority opinion—I strongly disagree. For all of the reasons set forth in this opinion, persons of good will can disagree about this matter of great public importance. To suggest otherwise is unwarranted.
The majority denies suggesting that opposition to same sex marriage can only be driven by animus toward gay persons. The primary basis for its decision, however, is its conclusion that that the intent of the marriage laws is “to treat [a] politically unpopular [and] historically disfavored [minority] differently” for “illegitimate reasons . . . .” Part I of the majority opinion. The majority also suggests that all state and federal legislation that classifies on the basis of an individual’s sexual conduct or orientation is driven by discriminatory animus toward gay persons and is designed to “undermine the legitimacy of homosexual relationships, to perpetuate feelings of personal inferiority and inadequacy among gay persons, and to diminish the effect of the laws barring discrimination against gay persons.” Part V D 2 of the majority opinion. Finally, the majority suggests that naked legislative preference for opposite sex couples, moral disapproval of same sex couples and private biases against homosexuality are the primary justifications for limiting marriage to one man and one woman. If, contrary to the import of these statements, the majority believes that persons of good will sincerely can believe that there are legitimate reasons for limiting marriage to one man and one woman, it should identify those reasons and take them into account in its analysis.
There are a few exceptional examples of same sex marriage in ancient times. See K. Young & P. Nathanson, “Marriage á la mode: Answering the Advocates of Gay Marriage” (2003) (“[a]s for Nero and Elgabalus, Roman
The majority also ignores the fact that, if consensual, loving commitment among adults is the essence of marriage, then the state has no basis for prohibiting polygamous marriage. The duality of traditional marriage derives from the duality of the sexes. If marriage is genderless, then there is no reason—other than the pure “tradition” argument that the majority already has rejected—why any combination of loving, committed, adult men and women should not be allowed to get married.
The plaintiffs contend that this argument is baseless because, unlike the redefinition of marriage to include same sex couples, allowing more than two persons to marry “would require a complete restructuring of the laws of civil marriage. The state would not be able to determine under existing laws which spouse would make decisions in the event of incapacity, who would inherit in the event of intestacy, and how custody, visitation, child support, and tax matters would be handled.” If marriage is a fundamental right, however, and the essence of marriage is a loving, committed relationship among adults, then an adult has a fundamental right to enter into a loving, committed relationship with other adults. The objections that the plaintiffs raise to polygamous marriage could readily be addressed by
The majority states that “[t]his conclusion is amply supported by the legislative history of the civil union law” and cites the remarks of Representative Robert M. Ward during debate on that legislation. Footnote 80 of the majority opinion, citing 48 H.R. Proc., Pt. 7, 2005 Sess., p. 2002. Contrary to the majority’s suggestion, however, Representative Ward did not indicate that there were no good reasons for preserving traditional marriage. Rather, he indicated that the civil union law extended rights to same sex couples in a way that was consistent with his constituents’ views “of what marriage is”; 48 H.R. Proc., supra, p. 2002, remarks of Representative Ward; i.e., an institution designed to privilege and regulate the type of sexual conduct that can result in the birth of a child. In any event, the institution of traditional marriage long predates the civil union law. Even if the majority’s interpretation of Representative Ward’s remarks were correct, I do not believe that the statements of a single state legislator in 2005 should provide the sole basis for determining the fundamental purpose of a basic civil institution that has existed in innumerable societies over millennia.
The majority also states that “the defendants expressly have disavowed any claim that the legislative decision to create a separate legal framework for committed same sex couples was motivated by the belief that the preservation of marriage as a heterosexual institution is in the best interests of children, or that prohibiting same sex couples from marrying promotes responsible heterosexual procreation . . . .” Part VH of the majority opinion. Accordingly, the majority concludes that it need not address the only argument that other courts have found to be persuasive in determining that limiting marriage to one man and one woman is not unconstitutional. As the majority is aware, however, several amici, including the Family Institute of Connecticut (institute), have raised this argument, and there is nothing to prevent this court from considering it. See Lewis v. Harris, supra,
See footnotes 3 and 4 of the majority opinion for the relevant text of these provisions.
The majority purports not to reach the plaintiffs’ claim that they have a fundamental right to marry. It is difficult, however, to see how that could be the case. The majority concludes that the plaintiffs are entitled to enter into precisely the same institution of marriage as that entered into by opposite sex couples. Marriage either is a fundamental civil right or it is not; it cannot have both characteristics at the same time. Because marriage indisputably is a fundamental civil right for opposite sex couples, the majority must believe that it is a fundamental civil right for same sex couples. Any such right can only be based on a loving, committed relationship between consenting adults. It is uncontroverted, however, that, up to now, marriage has been a fundamental right under the constitution because of its link to procreation. See Zablocki v. Redhail, supra,
See State v. Ross,
It is arguable that the preamble to the state constitution protects the institution of marriage in the form that it existed at the time that the constitution was adopted, i.e., an institution designed to privilege and regulate procreation, and that the legislature would be barred from redefining it in such a way that it would no longer serve that basic and compelling public interest. Cf. Evans v. General Motors Corp.,
There is strong evidence that the state increasingly has recognized the harm caused by the breakdown of the traditional family and a child’s need for both a mother and a father. In 1999, the state enacted the “ ‘Fatherhood Initiative’ ” to “promote the positive involvement and interaction of fathers with their children . . . .” Public Acts 1999, No. 99-193, § 1. The objectives of the initiative are to: “(1) [p]romote public education concerning the financial and emotional responsibilities of fatherhood; (2) assist men in preparation for the legal, financial and emotional responsibilities of fatherhood; (3) promote the establishment of paternity at childbirth; (4) encourage fathers, regardless of marital status, to foster their emotional connection to and financial support of their children; (5) establish support mechanisms for fathers in their relationship with their children, regardless of their marital and financial status; and (6) integrate state and local services available for families.” Id. In June, 2008, James Amann, the speaker of the Connecticut House of Representatives, announced that he had formed a twelve member task force to study the growing problem of children growing up without fathers. See C. Stuart, “Lawmakers to Study Fatherlessness” (June 26,2008), available at http://www.ctnewsjrmkie.com/state_capitol/lawmakers_to_ study_fatherlessn.php. As the result of recent research, “[t]he vital influence of a loving father on a child and family is increasingly undeniable.” R. Rohner, Editorial, “What Fathers Mean for Kids,” Hartford Courant, August 4, 2008, p. A13.
“One thing that [children] surely require is at least one parent of each sex. . . . [This] is because the sexes are not quite interchangeable. Though much more similar than dissimilar, both sexes are distinctive. Boys cannot learn how to become healthy men from even the most loving mother (or pair of mothers) alone. And girls cannot learn how to become healthy women from even the most loving father (or pair of fathers) alone.” K. Young & P. Nathanson, supra
“Because heterosexuality is directly related to both reproduction and survival [of the species], and because it involves much more than copulation, every human society has had to promote it actively (although some have also allowed homosexuality in specific circumstances). And marriage is the major way of doing so. It has always required a massive cultural effort involving myths or theologies, rituals, rewards, privileges, and so on. Heterosexuality is always fostered as a cultural norm, in other words, not merely allowed as one ‘lifestyle choice’ among many. Some norms vary greatly from one society to another, to be sure, but others'—along with the very existence of norms—are universal. So deeply embedded in consciousness are these that few people are actually aware of them. The result, in any case, is a ‘privileged’ status for heterosexuality. Postmodernists are not wrong in identifying it as such, but they are wrong in assuming that any society can do without it. . . .
“Its universal features include the fact that marriage . . . encourages procreation under specific conditions . . . recognizes the interdependence of men and women . . . and . . . provides mutual support not only between men and women but also between them and children. Its nearly universal features [include] ... an emphasis on durable relationships between biological parents .... These features assume the distinctive contributions of both sexes, transmit knowledge from one generation to another, and create not only ‘vertical’ links between the generations but also ‘horizontal’ ones between allied families or communities.” (Internal quotation marks omitted.) K. Young & P. Nathanson, supra.
For example, in one of the studies on which the plaintiffs rely, the authors stated that “[t]he small and nonrepresentative samples studied and the relatively young age of most of the children suggest some reserve” and that “[Research exploring the diversity of parental relationships among gay and lesbian parents is just beginning.” E. Perrin & Committee on Psychosocial Aspects of Child and Family Health, “Technical Report: Coparent or Second-Parent Adoption by Same-Sex Parents,” 109 Pediatrics 341, 343 (2002).
In this regard, I would point out that couples never have been required to prove that they are in a loving relationship before being allowed to marry. Moreover, commitment is increasingly considered optional. That has not stopped the plaintiffs from claiming, and the majority from concluding, that loving commitment is the essence of marriage.
I recognize that, at least in more modem times, society has considered love between a man and a woman to be a sufficient justification for marriage. This does not mean, however, that the state has any particular interest in promoting romantic love, in and of itself. Rather, if the state has any interest in promoting love, it is only because love is instrumental to the sexual conduct and long-term commitment that are required to propagate and raise children.
The United States Supreme Court has recognized that the “distinctive elements [of marriage] . . . rob it of most of its characteristics as a contract, and leave it simply as a status or institution. As such, it is not so much the result of private agreement, as of public ordination. In every enlightened government, it is preeminently the basis of civil institutions, and thus an object of the deepest public concern. In this light, marriage is more than a contract. It is not a mere matter of pecuniary consideration. It is a great
We long have recognized that testimony from legislative committee hearings may be relevant to a statutory analysis because it tends to shed light on the problems that the legislature was attempting to resolve in enacting the legislation. E.g., Burke v. Fleet National Bank,
The majority conspicuously omits any discussion of this statutory provision in its opinion, although it relies on § 45a-727a (3) in support of its conclusion that “it is the public policy of this state that sexual orientation bears no relation to an individual’s ability to raise children . . . .” Part V B of the majority opinion. Of course, no one in this case is challenging the parenting ability of gay individuals. I find it troubling that the majority is willing to consider the plaintiffs’ arguments in support of their claim that same sex marriage will have no deleterious effect on the welfare of children while expressly declining to address the arguments to the contrary. See footnote 12 of this opinion.
I agree with Justice Borden’s response to the plaintiffs’ argument that any link between marriage and procreation was severed by the decisions of the United States Supreme Court in Griswold v. Connecticut,
To the extent that the majority contends that these statements were inadequately supported by citations to the historical record, the burden is not on the defendants to prove a negative. Nevertheless, I note that the amicus brief filed by the Knights of Columbus notes that, at the time that article first, § 20, of the state constitution was amended in 1974 to prohibit discrimination on the basis of sex, some citizens were concerned that the amendment could be interpreted as requiring the recognition of same sex marriage. The Hartford Courant, published an editorial stating that any such claim was “nonsense,” and the Danbury News-limes characterized the claims as “scare tactics.” Gloria Schaffer, then the secretary of the state, and Kay Bergin, the executive director of the permanent commission on the status of women, gave a joint public statement that such claims were “unfounded” and were “misleading and inflammatory, calculated to frighten and to distort the true meaning of the proposed amendment.” There is no evidence that the drafters or the supporters of the amendment ever disputed these characterizations or believed that the critics of the amendment were correct. In light of this history, it is difficult for me to believe that the drafters of the equal protection provisions of our constitution, or those who voted for them, believed that sexual orientation should be treated as a quasi-suspect classification.
The majority states that, “[a]t a minimum . . . recognizing gay persons as a quasi-suspect class would substantially increase the likelihood of a determination that same sex couples are entitled to marry in view of the fact that the state would be required to provide strong justification for denying them that right. Accordingly, we consider the public policy ramifications of invalidating the statutory scheme barring same sex marriage.” Part VI E of the majority opinion.
The defendants have stipulated that several of the plaintiffs feel that the marriage laws treat them as second-class citizens, and I have no reason to doubt that that is the case or to suggest that such feelings are unreasonable. The defendants have expressly denied, however, that “[b]eing ‘placed into a separate category, such as civil unions, brands [the plaintiffs’] relationship[s] as second class ....’”
Of course, if the legislation negatively impacts a fundamental right, then it is subject to heightened scrutiny under substantive due process principles. I have concluded that there is no fundamental right to same sex marriage.