January 20, 2000		2000-R-0062
SAME-SEX MARRIAGES
By: Susan Price-Livingston, Research Attorney

You asked about the Vermont Supreme Court's Baker v. State of Vermont decision. You also wanted to know (1) whether Connecticut's constitution has language similar to that relied on in Baker; (2) whether any Connecticut law requires the state to recognize same-sex marriages performed in other states, and (3) what impact the federal Defense of Marriage Act (DOMA) has on this.

SUMMARY

Vermont's Supreme Court invalidated its marriage laws last month in Baker. It concluded that they violate the state constitution's Common Benefits Clause because they exclude same-sex couples from the statutory benefits and protections that opposite sex couples receive when they marry. The Connecticut Constitution's Article 1, Section 2 is also a "common benefits" clause, but its language differs significantly from Vermont's. And unlike the Vermont clause, it has rarely been used to challenge state action. But the Connecticut Constitution's Equal Protection Clause could be used to test the constitutionality of our marriage statutes.

No state law requires Connecticut to recognize same-sex marriages performed in other states. The 1991 gay rights legislation extending antidiscrimination protections to gay men and lesbians specifies that it does not require the state to authorize or recognize the right of marriage between persons of the same sex (CGS §46a-81r(5)). It is unclear how the courts will interpret either the U.S. Constitution's Full Faith and Credit Clause or the DOMA if one or more states extend their civil marriage laws to same-sex couples and other states refuse to recognize their validity.

VERMONT'S DECISION

Three same-sex couples living in committed relationships sued the state of Vermont when local town clerks refused to give them marriage licenses. The lower court dismissed their complaint, holding that the state's interest in furthering the link between procreation and child rearing justified its exclusion of same-sex couples from the benefits of marriage.

The Vermont Supreme Court reversed (Baker v. State, --A.2d.--, 1999 WL 1211709 (Vt. Dec. 20, 1999)(copy enclosed)), concluding that "the legal benefits of marriage are of such significance that any statutory exclusion must necessarily be grounded on public concerns of sufficient weight, cogency, and authority that the justice of the deprivation cannot seriously be questioned." It was not persuaded that the statutory scheme furthered the state's asserted interest in linking procreation and child rearing, noting that many married heterosexual couples do not have children, yet reap legal benefits from being married. (The plaintiffs identified 300 Vermont and 1,049 federal laws that apply only to married heterosexual couples, including access to a spouse's medical, life, and disability insurance; hospital visitation and other medical decision-making privileges; spousal support; and intestate succession laws.) The court found that many same-sex couples are also raising children, making it in the state's interest to afford them the same rights to a stable family life.

Although it declared the existing marriage statutes unconstitutional, the court did not order the town clerks to give the plaintiffs marriage licenses. Adopting the state's argument that such a remedy might lead to "destabilization" of its marriage laws, it left it to the Vermont legislature to enact statutes within a "reasonable time" extending to same-sex couples the same legal rights and protections enjoyed by heterosexual married couples. Legislative options mentioned in the majority opinion include enacting a domestic partnership act or amending Vermont's marriage laws to include same-sex unions.

The plaintiffs can return to the court for an order directing the town clerks to issue marriage licenses if the legislature does not equalize rights. (One justice concurred in part of the decision but dissented from the majority's refusal to order immediate marriage license issuance.)

VERMONT'S COMMON BENEFITS CLAUSE

Baker rests upon the state supreme court's interpretation of the Vermont Constitution's Common Benefits Clause (Vt. Const., ch. I, art. 7 ("Article 7")), which states:

That government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community, and not for the particular emolument or advantage of any single person, family, or set of persons, who are a part only of that community.

That constitutional provision pre-dates the federal 14^th Amendment's Equal Protection Clause by more than 100 years, and Vermont courts had previously interpreted it as protecting core values that are independent of the rights covered by the 14^th Amendment. The Baker court followed these precedents, and concluded that Section 7's language, history, and core value of inclusion required it to apply a more stringent reasonableness test to the state's denial to same-sex couples of marriage-related benefits than 14^th Amendment caselaw mandated. Applying the stricter test, the court held that limiting marriage to the union of a man and a woman "provides no reasonable basis for denying the legal benefits and protections of marriage to same-sex couples, who are no differently situated with respect to this goal than their opposite-sex counterparts."

U.S. Constitution's 14^th Amendment

The 14^th Amendment's Equal Protection Clause affords varying levels of court review to federal constitutional claims depending upon the classes of persons protected. The U.S. Supreme Court has indicated that states can discriminate against people based on their sexual orientation so long as their actions bear a rational relationship to a legitimate state interest. Although this is the review standard most deferential to state lawmakers, it was successfully used to invalidate Colorado's constitutional amendment prohibiting state and local legislatures and officials from protecting gays and lesbians against discrimination (Romer v. Evans, 517 U.S. 620 (1996)).

CONNECTICUT'S COMMON BENEFITS AND EQUAL PROTECTION CLAUSES

Connecticut's Common Benefits Clause has never successfully been used to challenge state actions (Art. 1, Sec. 2). It states:

All political power is inherent in the people, and all free governments are founded on their authority, and instituted for their benefit; and they have at all times an undeniable and indefeasible right to alter their form of government in such manner as they may think expedient.

Unlike Vermont, Connecticut's constitution has a separate Equal Protection Clause (Art. 1, Sec. 1). The state's courts have not decided what standard of review they must apply when a litigant challenges state classifications that differentiate between same-sex couples and heterosexual married people under that provision. While not bound by the U.S. Supreme Court's Romer standard, they generally have followed federal constitutional precedents unless there is a meaningful difference in our state constitution's language (Daly v. DuPonte, 225 Conn. 499 (1993)(classifications based on physical or mental disability subject to strict scrutiny because state constitutional amendment accords this group greater protections than the federal constitution)).

U.S. CONSTITUTION'S FULL FAITH AND CREDIT CLAUSE AND THE DOMA

If one or more state, territory, or Indian tribe does give same-sex couples the right to legally marry, it is likely that some other states will refuse to recognize them. Generally, the U.S. Constitution's Full Faith and Credit Clause requires states to give full effect to other states' public acts, records, or judicial proceedings. But judges have carved out a limited exception to this rule where giving full effect to another state's laws would violate a strongly held public policy. It is unclear whether same-sex marriages would fall within this public policy exception if a case arose in Connecticut.

DOMA provides that as a matter of federal law, states cannot be forced to grant full faith and credit to same-sex marriages lawfully performed in other states (28 USC §1738c). Some legal scholars have argued that both it and the federal common law public policy exception to the Full Faith and Credit Clause are unconstitutional (Kramer, "Same-Sex Marriage, Conflict of Laws, and the Unconstitutional Public Policy Exception," 106 Yale L. Rev. 1965 (May 1997)). The legal arguments on both sides are complex and theoretical, and will not be tested in the courts until an actual case arises.

SPL:kgs