December 16, 2002
gmh JUDICIARY COMMITTEE 1:00 P.M.
PRESIDING CHAIRMAN: Representative Lawlor
SENATORS: Coleman, Kissel, Daily
REPRESENTATIVES: Feltman, Farr, Abrams, Cocco,
Conway, Dillon, Doyle, Fox,
REPRESENTATIVE LAWLOR: Just by way of explanation, first of all, I think everyone is aware that the reason the Judiciary Committee has been conducting these several meetings is because it's part of a bill that was passed earlier this year that required the Judiciary Committee to convene and to consider the pros and cons of both civil marriage and -- same sex marriage and civil union and to make recommendations and report the findings back to the 2003 session of the General Assembly.
This is the third in a series of meetings on this topic. Today, we have invited, in essence, a bunch of legal experts to discuss with us more technical legal considerations to keep in mind as we consider these issues.
By way of an apology, I think everyone is aware that Connecticut right now is in the midst of a rather severe budget crisis, as many states are and as consequence, the General Assembly is coming into special session on Wednesday and there's quite a few things taking place in order to prepare for that session, including today, as I understand it, there is a retreat of the Republican caucus in the House of Representatives and I was asked by Representative Farr, our ranking member, to convey his apologizes that none of the Republican House members can be with us today because they're obligated to be at that budget discussion, which is certainly understandable.
We had considered, briefly, postponing or canceling today's proceedings, but I think everyone understands that the time is short. Holidays are beginning and so that's not possible.
So what we're going to do is continue with today's meeting and I think everyone is aware that what is said in these proceedings is transcribed and that will be made available to all the members of the committee. The testimony will be distributed. Today's proceedings, fortunately, are being broadcast on CTN, the State of Connecticut Public -- the CSPAN-like enterprise that the General Assembly has. So, there maybe legislators watching in their offices live as these proceedings take place, plus citizens around the State will be able to watch this taped proceeding later on this week and subsequently if any member of the committee would like to view these proceedings, they have an ability to do that via video tape.
So, I apologize for the sparse attendance, but nonetheless, I think these proceedings are important and all of what is said today will be taken into consideration by the committee as we endeavor to meet our obligations under the public act from this year.
Senator Kissel, did you want to say anything?
SEN. KISSEL: No, I'm all set, Michael.
REP. LAWLOR: Okay.
SEN. KISSEL: I do apologize, though. Last Monday I was out ill.
REP. LAWLOR: Okay. So, we have three invited speakers today. First is Attorney Joshua Baker who is with the Marriage Law Project at the Columbus School of Law at the Catholic University of America. Next, is Attorney Mary Bonauto, who is an attorney and civil rights director with Gay and Lesbian Advocates and Defenders. Among other things, she was co-counsel in the Vermont Supreme Court decision called Baker vs. State of Vermont. And she is counsel currently in the pending litigation called Goodridge vs. State of Massachusetts.
And finally, the third speaker will be Attorney Maureen Murphy, who is a Connecticut citizen and she is a partner with the firm of Murphy, Murphy and Nugent in New Haven. They specialize in family law and civil rights law.
So, the format would be if you could begin with a ten or fifteen minute opening session. I'm sure members of the committee will have some questions at that point and hopefully this won't take more than an hour, an hour and one-half.
So, Attorney Baker, please -- just make sure that microphone is on. Is it on? Okay.
ATTORNEY JOSHUA BAKER: Thank you for the chance to be here today, Representative Lawlor and members of the committee.
My name is Joshua Baker. I'm a research attorney with the Marriage Law Project. It's a research project at the Columbus School of Law of the Catholic University of America in Washington, D.C.
We've been involved in monitoring and analyzing state laws regarding marriage for a number of years now. I've been with the project for two years and as part of that process we've been involved in discussions over state Defense of Marriage Act as they're commonly called and the various marriage litigation cases that have taken place from Hawaii to Alaska and Vermont and Massachusetts and now New Jersey and Indiana, as well.
I've had a chance to look through the research reports put together by Ms. Price Livingston and Ms. O'Connell. They've done some excellent work for you folks and they've put together a real wealth of information. So it was a good foundation from which to start coming into this.
In a few minutes here today I think I'm going to start with the history of kind of the Defense of Marriage Acts and how they've developed and evolved at the state level since 1994.
In a brief analysis of conflicts of law over the analysis of how the federal (inaudible) influences the issue, how the state laws will or will not be upheld and with respect to recognition of same sex marriages from other jurisdictions or civil unions. And finally, just briefly about how civil unions will be impacted, whether it's a Connecticut civil union, its effect somewhere else, or a civil union from Vermont or somewhere else being recognized or otherwise treated in Connecticut.
In 1991, same sex marriage litigation was filed in Hawaii. It was Bear versus -- it was Loone at the time. Two years later in 1993, the Hawaii Supreme Court issued its decision basically saying there was going to be heightened scrutiny for marriage under the State Constitution. That's basically when same sex marriage hit the mass media across the country.
The following session, 1994, the Hawaii Legislature - public was not ready for same sex marriage in Hawaii. That became known pretty clearly to the Hawaii Legislature and in 1994 they adopted the first Defense of Marriage Act, if you will. The first statute saying that same sex marriages won't be recognized in the State of Hawaii. Obviously, that was a statutory enactment and didn't have controlling authority over constitutional interpretation for Hawaii, but that was the first state Defense of Marriage Act.
That, basically, took the existing marriage recognition act in Hawaii, which said marriages vowed were contractedly recognized in the courts of this state and amended that to say marriage between a man and a woman -- that is valid where contractedly recognized in the courts of this state.
The following year three more bills were introduced in Utah, Alaska, and South Dakota. Utah passed, becoming the second state with a Defense of Marriage Act, if you will. Defense of Marriage Act is not the best terminology, perhaps for some of these. DOMA, as we know the federal law, the federal Defense of Marriage Act, didn't come around until 1996. And also there's some -- I even noticed in going through the report here, some perhaps conflict is what actually constitutes a Defense of Marriage Act.
In our analysis, we have -- you have the handouts there and there are some more coming. Apparently, the copy jammed, but you should have it within the hour. We have 36 states that we've identified that have adopted Defense of Marriage Acts. The count in the report says 37. I think the difference there is that Texas has a statute that says marriage licenses can only be issued to a man and a woman, but it hasn't adopted a policy explicitly with respect to out-of-state unions and so we didn't count Texas in our analysis.
So we've heard them as marriage recognition statutes, those that explicitly deal with recognition of marriages from other jurisdictions and whether they will or will not be recognized in that state.
Getting back to the following -- in 1996, the DOMA movement of the marriage recognition movement in the states starting picking up steam. Fifteen states adopted those statutes in 1996, bringing the total to 17 states. And that was the same year that the federal Defense of Marriage Act was adopted, which, first of all, defined marriage, for all purposes, under federal law as being the union of a man and a woman and related to that any use of the word "spouse" refers to a married couple.
And then secondly, which is the part that's most interesting here is it said that states are not required, under the full faith and credit clause, to recognize same sex marriages from other jurisdictions, particularly other states within the United States.
In doing that, -- I'll get into a little bit more later, but basically the court -- the Congress was affirming a principle that states are not required to recognize same sex marriages from other jurisdictions if that's contrary to the strong public policy of the state.
By 1998, the total of state marriage recognition statutes had increased to 30 and that was basically the end of the first wave of response to the Hawaii litigation. Those 30 included two marriage amendments, which were in Alaska and Hawaii. Both of those were driven by litigation in those states where the marriage statutes were subject to constitutional challenge and therefore they went the constitutional route to respond to that.
Subsequently now we're at 36 states. In the last four years there have been six more states that have adopted marriage recognition acts. Four of those have been statutory and two of those are constitutional amendments in Nebraska and Nevada.
In the analysis, there's -- this is OLR Report 2002-R-0957 dated December 6th of this year. Those distinctions between those statutes which define marriage as the union of a man and a woman, those which deny recognition of same sex marriages contracted or (inaudible) in other states, and then those which explicitly adopt a public policy with respect to same sex marriages.
For purposes of my analysis, a statute which simply defines marriage as the union of a man and woman would not be considered a marriage recognition statute or Defense of Marriage Act. There are four states that I'm aware of in addition to the 36 of which we define as marriage recognition acts which have also adopted or which have in place of that have adopted a statutory definition of marriage. Those being Texas, Maryland, New Hampshire, and Vermont, all of which say marriage is the union of a man and a woman. They do not deal with out-of-state recognition.
As far as the public policy side of that, either/or is sufficient for a state to refuse recognition of a civil union. If it's contrary to strong public policy and they have a statement that says it's contrary to our public policy, obviously that's related.
If -- I guess this is a matter of analysis, but in our analysis of this, if a state says we will not recognize the same sex marriage from another jurisdiction, that, in itself, is an expression of the public policy, whether it was explicitly attached the words "public policy" to it or not. That's what they're doing by enacting it. If the Legislature sets the public policy for a state and in making that statement, they have made the statement of the public policy.
In another one of the reports, Ms. Price Livingston referred to conflicts laws, a set of complex and theoretical arguments and I think that's probably true in large part. At least historically there have not been a large number of conflict scholars in the United States. That changed when the federal Defense of Marriage Act was adopted and suddenly everyone is a conflict scholar and there are dozens of articles being written on conflicts of law and whether the Defense of Marriage Act was constitutional.
Most of those are saying it's not constitutional, but over the last six years since the Defense of Marriage Act was adopted, there's been an evolution in that field of analysis such that I think it's pretty much common knowledge or Orthodox at this point and I'm sure there are still the centers, but that a marriage that is contrary to strong public policy of the state does not need to be recognized and that's already been litigated here in Connecticut in the past years whether they're dealing with incestuous marriages or bigamist marriages from other jurisdictions.
I was at a conference in Ohio just a few weeks ago and one author who was on the other side of the debate from where I'm usually associated with - it was a conference about adoption law and even in that context it was conceding that yes, most courts are not going to require recognition of a same sex marriage in a state that doesn't have a policy that recognizes it and whether they will authorize an adoption is up for debate. Basically the issue comes down to -- the Constitution speaks of public acts, records, and judicial proceedings. The courts have created a hierarchy in that context such that judicial proceedings are entitled to the highest form of recognition. So a judgment, whether it be a divorce judgment or an adoption judgment or some kind of a property judgment would be entitled to the highest form of recognition in the state and it's less likely that a state would be able to avoid that based upon public policy concerns.
In dealing with public records or with magisterial acts, or ministerial acts dealing with whether someone is granted a marriage license, those have traditionally been lower on the form of recognition and such that they are generally recognized, but that states and the majority of states -- I'm not aware of much dissent to the contrary -- in fact, I'm not aware of any contrary opinions in judicial decisions saying that full faith and credit would require a recognition of a marriage from a foreign jurisdiction if it's contrary to the strong public policy of the state.
I think that pretty much takes us through where the body of law is at this point.
With respect to civil unions in Connecticut, if this state were to adopt civil unions, based upon my reading of the laws of other states, there are probably at least 40, 41, 42 states which basically would not recognize those for any purpose. They've adopted a strong statement about their own public policy with respect to same sex marriage and the decision of the Georgia Court of Appeals earlier this year, which was in denied review. So it became a final decision. Basically, the analysis was a civil union is not a marriage. We don't recognize civil unions in our state, so we don't have any mechanism for that and furthermore, even if we did -- well, no. A civil union is not a marriage and then secondly, even if it were a same sex marriage, we have adopted an explicit policy with respect to same sex marriage and would not recognize that, as well.
Obviously, whether there's a question of whether the Defense of Marriage Act can be upheld and whether the state policy with respect to marriage, that would have to be a federal court question and so state courts aren't going to be dealing with that issue in most cases to be struck down, the federal Defense of Marriage Act.
As to whether Connecticut should recognize a civil union from Vermont or somewhere else, obviously I suspect that you're all aware of Rosengarten vs. Downes decision that came down from the Connecticut Court of Appeals earlier this year and then was accepted for review by the Connecticut Supreme Court. In that case, the court looked to determine the public policy of the State and quite frankly, in reading through it, because there was no explicit public policy set forth by the Legislature, the court was looking to a number of different factors trying to figure out what is the public policy of the State.
If the Legislature were to take action which would explicitly set forth that public policy or explicitly set forth the rules for recognition of a civil union of a marriage, it would be a much easier process for the Legislature or for the courts, but the court took a five-part analysis in that.
First of all, it looked to the text of any relevant Connecticut statutes. Secondly, it went to the rules of court, (inaudible) the legislative history of the marriage laws and other laws in the State of Connecticut. And that legislative history analysis also included the same sex adoption debate in which the comments were made about same sex marriage and legislative history dealing with -- well, the Preamble and such dealing with the fact that the same sex adoption statute was not intended to recognize same sex marriage. And it set forth a statement there of the public policy of the State, at least at that time as being recognizing marriage as a man and a woman and not as other relationships.
And then it finally looked at the relationship between the statutes of the State, the express legislative policy of the State, and the history of the common law in the State of Connecticut and on that basis, with heavy emphasis upon the debates and the discussion and the Preamble surrounding the same sex adoption legislation in 1999, the court concluded that recognition of a civil union from Vermont, in the context of whether to divorce a civil union, decided that was contrary public policy. Therefore, it would not recognize it without recognizing it's impossible for the State to dissolve it. And as you probably know, Mr. Rosengarten passed away a few weeks after the Supreme Court accepted a review on the case and so it's not real clear as to whether that case is going to proceed to the Connecticut Supreme Court for decision or not. I think I read it was stayed until May and there will be a decision made at that time.
That's all I have for now. I'm open to questions either later or what's the process?
REP. LAWLOR: We'll have the questions after the presentations, if that's okay. So, next will be Attorney Mary Bonauto.
ATTORNEY MARY BONAUTO: Hi. I'm Mary Bonauto. It's okay. And I'm very happy to have the opportunity to speak with you today.
As you mentioned in the introduction, I have been a lawyer in some marriage cases, but I also have been involved in helping Vermont with its civil union legislation and drafting legislation in other places and I hope it's in that way that I can assist this committee today.
I have provided some written testimony and I'm not going to repeat it all because it's way too long, but that will give you some of the legal details of what I'm going to state today.
I'm going to talk about three things very briefly. One is, what marriage is as a legal matter. Number two, some constitutional considerations that bear on your public policy considerations. And then third, some of the limitations of other systems developed by other states which are well intentioned attempts to try to start crafting some solutions to the problems faced by same sex couples and families.
First, as to marriage, civil marriage is really a unique legal institution. The right to join in marriage with the person of one's choice is one of the most fundamental of all of our human and civil rights. For such a concrete right, it's grounded actually in intangible things like love and commitment and an aspiration to have a shared journey together through life. And as reflected in the law, in the statutes, and in the common law, what marriage is boiled down is a mutual commitment of two people to undertake certain responsibilities toward one another and upon whom the law imposes a distinct legal status.
Now, Connecticut allows two competent people to marry if they're of the right age, if they pass a blood test, they're not too closely related, and they pay a small fee. The only people who meet these requirements, but cannot marry are couples of the same gender.
Now, once joined in civil marriage, the law, the law largely created by this body, confers an enormous array of rights and protections and responsibilities on that married couple that dramatically alters their status visa vie each other, visa vie the state and also with respect to third parties.
I know that the Office of Legislative Research has already prepared really wonderful materials for you, so I'm not going to repeat how Connecticut law accomplishes this, but I will say that those protections, those incredibly extensive protections and responsibilities which help build strong families would benefit the families of same gender couples in Connecticut in the exact same ways that those laws benefit other existing married families.
Now, this is not just about benefits. It's not just about protections because marriage is much more than the sum of its legal parts. Legally it's also a status. It represents and reinforces our sense culturally, as well, about what is commitment, what is love, what is family.
One of my co-counsel in Vermont, a woman named Beth Robinson, is very fond of saying, "People don't sing songs about domestic partnership or civil unions. People sing songs about marriage. Everybody knows what marriage means." And right now, the inability of gay and lesbian families to use the word "marriage", to have access to marriage to describe their lives and to describe their families really means that gay and lesbian families are not full and valued members of this society. And that our families are really considered apart and other from what everyone else has.
And I just think another way to examine this is what is the effect on a family, not just in terms of concrete rights and benefits, but what is the effect on a child who grows up in a gay or lesbian family? I think the message to that child, from the fact that his or her parents can't marry is that their family is different, their family is not as respected, their family is really not part of the mainstream community, and that's a harmful message to children. It's a harmful message to our society.
Nancy Cott, a historian who wrote a book called, "Public Vows", which was published in 2000, actually I thought made an incredibly important observation when she talked about how slaves were not permitted to marry because slaves were not free. In that way, she equated marriage with a badge of citizenship and she points out how, to the extent that same sex couples are not permitted to marry now, it's a badge of our unequal citizenship in this country.
So that's the first part about marriage. I want to turn very briefly to a constitutional perspective because, of course, the Constitution is the ultimate source of public policy in Connecticut and in addition, any measures that this body may take, would have to be guided by the Constitution. And just at the outset, Justice Ginsberg from the United States Supreme Court, I think, captured a very important insight, which she wrote in 1996 in a case called United States vs. Virginia, a prime part of the history of our Constitution is the story of the extension of constitutional rights and protections to people once ignored or excluded. And this has certainly been true in Connecticut. When the country was divided over slavery, Connecticut decided that a slave brought to this state was free. When other states, including Massachusetts, were refusing to allow women to practice law, the United States Supreme Court was saying state regulations forbidding women from being doctors were fine. This state admitted a woman named Mary Hall to the Bar of the State of Connecticut.
Sometimes lawmakers act on information and then later learn that maybe their information wasn't the best at the time when they acted. So, for example, in 1895, Connecticut passed a law which forbade the marriage of so-called imbeciles, epileptics, feeble minded persons, where the woman was under the age of 45.
Now later, this body realized that that kind of exclusion was wrong, it was part of the eugenics craze in this country and it repealed that kind of measure and I respectfully suggest that this body now knows that gay and lesbian families are part of the fabric of this community and therefore, that the exclusion of same sex couples from marriage simply does not make any sense anymore from a public policy perspective. I will let Maureen also talk more about that.
Also, just in terms of the Constitution. This is really detailed in my written materials and I don't want to repeat it here, but let me just say that there are really two core constitutional issues here. One is liberty and one is equality.
With respect to liberty, marriage, just like decisions about child rearing and who your family is, marriage is a protected fundamental right because it's part of core personal decision-making and that's part of our really our heritage, our heritage of liberty.
So that's part of what's at issue here.
The second part of what's at issue here is equality. Now, clearly, the fact that the way that the law works right now manages to exclude only same sex couples from marriage who otherwise meet all the qualifications for marriage obviously suggests that there's an issue with respect to sexual orientation discrimination. There's also an issue with respect to sex discrimination and I say that because in the same way that the United States Supreme Court decided that interracial marriage bans violated race discrimination norms and the reason for that was if the state said you can't marry somebody because they're not the right race, then race was the improper criteria which is being used. That's the same thing that Connecticut does right now with respect to sex. It says that you can only marry somebody of the proper sex. So there's that consideration, I think, for this body to consider, as well.
The final thing that I'll say that is even if this body didn't think there were any equality concerns related to sexual orientation or related to sex, in the end, a law still has to make sense. It can't be arbitrary. And I think what you'll hear from Maureen, I hope you'll hear from Maureen, is that there is no legitimate public policy reason to continue excluding same sex couples from the institution of civil marriage.
The final thing that I wanted to turn to and I realize I'm racing here. I guess I see a timer in my head that's about to go off. The third thing I wanted to turn to is some of the measures that have been taken by other states and I also want to recognize and really applaud this body for taking the steps that it has to protect gay and lesbian families here.
I wanted to talk for a moment about the Vermont civil union law, the California domestic partnership law, and the Hawaii reciprocal beneficiary law. And I know from your reports from OLR that you already know about these laws, so let me just talk for a moment about some of their limitations.
First, each of these systems is a separate institution for marriage. Now, some people might say, well, that's only about semantics, what do you care what it's called? We care a great deal what it's called because the issue really is equal citizenship.
When Mildred Jetter and Richard Loving, an interracial couple, married in Virginia and they challenged their exclusion for marriage, nobody said to them, well listen, just call it something else, we'll give you all the same rights and benefits, but really just don't offend people by calling it the same thing.
Well, that's exactly the point we're at here, as well. This is a civil right that exists and it really needs to belong to everyone in the community to show that everyone's families are valued.
Second, as a practical matter, none of these systems that exist in other states can provide any sort of entrée point to the very extensive federal protections that are associated with marriage.
As you know from the reports you've received, there are at least 1,049 federal laws and programs which distinguish somehow, based on whether or not a family or a couple is married or not. All of those rights and protections are presently foreclosed from same sex couples because they cannot marry.
Now, I'm not going to say that Connecticut's including same sex couples within marriage is automatically going to change that because it's a long road and one has to tackle layers of discrimination, but I will say, with respect to that federal Defense of Marriage Act, that many, many scholars and I do not rank myself in that category at all, but many scholars of constitutional law really believe this federal definition of marriage is unconstitutional and there are reasons for that. Among other things, it contravenes the federal government's longstanding practice of deferring to states in matters of domestic relations.
There was a time period when there was a lot of controversy in states about divorce laws. Some states had very easy divorce laws. Other states didn't. And Congress debated for over a period of 70 years about whether or not to nationalize domestic relations law and they stayed out it and they stayed out it because marriage is really a state's rights issue. So I think that's one of the major vulnerabilities of this federal Defense of Marriage Act.
And I'd also say, regardless of whether or not it's constitutional, once you actually had married couples in the state, whether it's this state or it's Massachusetts or it's New Jersey or whatever state it may be, that is going to give the Congress its first real opportunity to see actual real live married couples and see, in fact, that the sky has not fallen and I think give the Congress an opportunity to re-examine the federal Defense of Marriage Act and whether or not it really makes any sense to continue excluding same sex couples from all those federal benefits.
A third thing I want to mention and I'm not an ARISA expert, but what I will say is that all of these separate systems, even to the extent -- and this is a real -- this is very much true of Vermont, even to the extent that a state tries to confer all of the same rights under state law on same sex couples that exist for married couples, there are going to be times when federal law and state law regulate in the same area and federal law is going to be deemed to pre-empt state law.
So, that as much as Vermont, for example, wanted to try to provide pervasive equality for same sex couples under state law, they're going to run into conflicts of federal law.
The classic example of this so far as been in the area of health insurance because of a federal law known as ARISA and, in fact, in the Hawaii Reciprocal Beneficiary Law, the part of the Hawaii Reciprocal Beneficiary Law that provided for health insurance benefits was struck by a federal judge in Hawaii on the grounds of ARISA pre-emption. Some people think that decision is now wrong, but be it as it may, ARISA pre-emption is only one example of the many times of overlapping regulation between the states and the federal government and once you have marriage and you have a uniformed definition of marriage, you don't run into the same problems.
The final thing that I want to talk about is portability, which the preceding speaker also talked about to some degree.
Civil unions, Hawaii Reciprocal Beneficiaries, California Domestic Partners, none of these are statuses that you can take with you when you travel at all. You cross the boundary of California, you're a legal stranger once again. You know, people in Vermont, what does it mean when they cross the border to work in Hanover, New Hampshire? There's real concern about whether or not any of these statuses will give people any protection at all beyond their state borders.
So, in a sense, there's a way in which people can become imprisoned in their states.
Now, this is a rapidly developing area of law because I do not mean to suggest that I think civil unions, for example, because they are so parallel to marriage, should not be portable. Quite the contrary, I think they should.
In the two cases that were mentioned by the proceeding speaker, are both cases involving non-Vermont residents, including the case here, non-Vermont residents going to Vermont, joining in a civil union and returning home.
I think when it comes to, for example, a Connecticut resident who is joined in civil union in Connecticut, going to another state like Massachusetts or whatever it might be, the case for recognition becomes much stronger. But the bottom line is, when you talk about marriage, everyone understands what marriage is and there is enormous case law, despite these new laws that have been rushed into existence, there is case law dating back hundreds of years in this country.
I'll give you an example from Massachusetts where Massachusetts criminalized interracial marriage. An interracial couple from Massachusetts goes to Rhode Island and marries, comes back and the marriage is respected. Why is that? Because of the longstanding common law that a marriage, valid where it's entered into, is valid everywhere.
In 1948, the Attorney General of this state issued a written opinion when he was asked whether or not a marriage of a "native Chinese" and a "native White American" would be recognized in Connecticut and again, that attorney general's opinion in 1948 affirmed what we all know, a marriage, generally, if valid where it's entered into, is valid everywhere.
So, the best protection in the end that can be provided to people is by providing them marriage. It's the thing that's most likely to be portable, most likely to cause the federal government to re-examine the Defense of Marriage Act, and most likely to satisfy the mandates of equality.
And I really do urge you to consider that in part because what people really need in their lives is a lot of security and peace of mind and you have enormous power to help make that happen.
I thank you very much.
REP. LAWLOR: Did you say that Massachusetts passed a law that made it a crime for an interracial couple to be married?
ATTORNEY MARY BONAUTO: In the earliest recorded law and it may have preceded this, is from 1705, at which point the -- I think it was framed as the Majesty's Scottish and English subjects were not permitted to marry, whatever they called it at the time, but it was intended to mean by people -- African Americans and that law was ultimately repealed by the Massachusetts Legislature in 1842.
REP. LAWLOR: Okay. Thanks. Next is Attorney Maureen Murphy.
ATTORNEY MAUREEN MURPHY: Good afternoon. It's a pleasure to be here this afternoon. Thank you for this opportunity.
As you've already stated, Representative Lawlor, I am in private practice in New Haven where my practice focuses primarily on civil rights and family law.
A large part of my practice, however, is devoted to representing gay and lesbian clients and their children in family matters in family and probate court and representing same sex couples in their efforts to protect their relationships to the extent allowed by law.
On a day-to-day basis, I'm confronted in my practice with tragic or potentially tragic situations because a large segment of our residents are excluded from the civil right to marry.
Many of my clients have been before you to tell you their stories and I know you've listened with open minds.
Today, rather than reciting the many specific examples and effects of their exclusion, I would like to focus my testimony on five areas that have been raised in the past as reasons that this legislature should maintain the discriminatory ban on marriage for same sex couples, namely that procreation, child rearing, religious considerations, history and tradition, and the slippery slope arguments all justify the continuing discrimination.
First, procreation is often asserted as the main purpose of marriage that purportedly justifies excluding same sex couples from the right to marry. And that all male/female couples are distinguished from same sex couples by their capacity to procreate.
This assertion, however, has simply no substance. Neither the ability nor the intention to procreate have ever been a requirement of marriage.
For example, Connecticut, like all other states, does not nor could it prohibit post-menopausal women from marrying. In fact, as the OLR Report that's already been presented to you on the history of marriage in Connecticut makes clear, even when there was a ban on certain individuals marrying, that Mary has already referred to, "imbeciles, epileptics, and feeble-minded", that ban was lifted for a woman once she was beyond child bearing age.
Among those who can marry legally are those who will never have children by choice, those past child bearing years, the sterile, those whose fertility is comprised, and the long term incarcerated.
Even incarcerated individuals cannot be deprived of their right to marry, although they maybe barred from conjugal relations.
In Griswold vs. Connecticut, a Connecticut case that I'm sure you're all familiar with, the United States Supreme Court, in striking down a ban on contraceptives, severed any purported link between marriage and procreation by clarifying that marriage has fundamental legally protected purposes without procreation.
The Supreme Court further established in Eisenstadt v. Baird, that procreation is legally unconnected to marriage by striking a Massachusetts statute that differentiated between a married and an unmarried person's right to obtain contraceptives.
Even if procreation was a purpose of marriage, excluding same sex couples does not further that purpose. Same sex unmarried persons are able to and do procreate in significant numbers, as is obvious from statistics and the cases cited -- as I'll go into a little bit later. And the law does not favor biological relationships over children who are adopted or children who are born through reproductive technology.
Second, the State's interest in promoting child rearing cannot be furthered by excluding same sex couples from marrying because the State's discrimination undermines that very interest. Gay and lesbian individuals and couples are currently raising children and will continue to do so. Children benefit emotionally and economically when their parents are married because state laws and cultural norms support the commitment of married couples.
As you heard at the last two meetings, there is widespread recognition by mental health and medical organizations that same sex parents are as loving and as appropriate as their heterosexual counterparts.
Connecticut courts have repeatedly endorsed and protected the relationship between same sex parents and their children.
In the Baby Z. case in 1999, the Connecticut Supreme Court stated that it was clearly in Baby Z.'s interest to have her same sex caretakers, both of them, recognized as her legal parents. Nonetheless, the court found that the archaic statutory adoption scheme in Connecticut prevented the court from allowing Baby Z's mother's lesbian partner to adopt Baby Z.
The Baby Z. court left it to the Legislature to fix that problem. One year later, you responded by passing Public Act 00-228, allowing same sex couples to adopt. Since the effective date of that statute, I have filed or assisted in filing approximately 70 adoptions for same sex couples here in the State of Connecticut.
In addition, numerous Connecticut Superior Court decisions have held that same sex couples and their children constitute a family unit for family law purposes.
And I've cited a number of cases, all of which are mine or my law partners, that were not considered by the Appellate Court in the Rosengarten case.
Most recently, in fact, three weeks ago, I received a decision from a Superior Court judge in Danbury. In that particular case, the Lavoie case, the court held that the relationship between the children and the non-biological lesbian co-parent, must be protected even over the objection of the biological mother, stating that the non-biological parent in that case is a party who has all but given birth to these children literally and has given birth to them vicariously, as indicated by the unrefuted facts presented at trial, concerning her involvement with the children before, during, and after their births.
She is held out and perceived by family, friends, professionals, and especially the children themselves, as being their parent.
Third, marriage has always been a civil institution in Connecticut intended to promote public aims and governed entirely by civil, not religious law. The status of being married is a status that can only be conferred by the State. Many same sex couples have been married in religious ceremonies and their marriage has been recognized as valid within that religious context. Their marriage, however, is not recognized by this state solely because a valid religious ceremony has been performed.
Connecticut has long held that the State must determine the valid requirements constituting a marriage. The sole intersection of civil and religious marriage is that the State accepts ordained ministers as one of the valid persons who can perform a marriage. There is nothing in the marriage statutes, however, that forces any minister of any religion to perform a particular marriage and allowing same sex couples to marry would not force any religion to accept that marriage as valid.
For example, the Roman Catholic Church, I believe, does not recognize second marriages subsequent to a civil divorce unless that first marriage has been annulled by the church.
As the OLR Report on the history of marriage reflects, since 1792 marriages have been validly performed by non-religious persons such as justices of the peace and magistrates.
In the Carabetta case in 1980, the Connecticut Supreme Court stated, "that is has long been clear, that under our laws, all authority to join parties in matrimony is basically secular. A clergyman in the administration of marriage is a public civil officer and in relation to this subject, is not at all distinguished from a judge or a justice of the peace in the performance of that same duty."
To allow some religious groups to interfere with this civil right signifies a preference for one religious group over another in that many religious faiths support the right of same sex couples to marry. This state has a long history of maintaining a common respect for religious freedom and separation of church and state. Interests of religious freedom are not, in any manner, furthered by continuing the State's discriminatory ban on marriage for same sex couples.
Fourth, claims that the history and tradition of marriage justifies excluding same sex couples from marriage are similarly invalid. The history of laws governing marriage in Connecticut have been already addressed by Susan Price Livingston in the first meeting and in her reports. That document reflects the significant changes that have occurred over time in Connecticut regarding restrictions on who can marry and Mary has already referenced those.
And also, Susan Price Livingston's document indicates how women are treated in marriage and divorce laws has dramatically changed.
Although Connecticut did not have a prohibition on interracial marriages, those prohibitions existed in this country until 1967 when the U.S. Supreme Court decided Loving vs. Virginia.
The first State Supreme Court to invalidate its state prohibition on interracial marriages was the California Supreme Court in Perez v. Sharp in 1948. Justice Traynor wrote in that decision that "a member of any of these races may find himself barred by law from marrying the person of his choice and that person to him maybe irreplaceable. Human beings are bereft of worth and dignity by a doctrine that would make them as interchangeable as trains."
Traynor's words take on a heightened significance when you consider that at the time of the Perez decision, one public opinion poll reflected that 80% of the population disapproved of interracial marriages and ten years later, a Gallup Poll showed that 94% of people disapproved of marriage between "white and colored people".
Those opposing interracial marriages pointed to the history and tradition of marriage as a justification for denying interracial couples the right to marry then, just as some point to history and tradition now as a justification for the discrimination.
And fifth, those in favor of maintaining the discriminatory ban on marriage suggests that if same sex couples are allowed to marry, then all types of problems will face society, polygamy being the most common result.
That suggestion is pure fear mongering. People wishing to engage in plural marriages can already make such claims. Same sex couples marrying will neither advance nor hinder any such claims.
The freedom to marry same sex couples seek here is the freedom to marry the person of one's choice and there simply is no basis for any claim that including same sex couples will lead to polygamy.
These same claims that marriage is between same sex couples will lead to polygamy were raised in the context of interracial marriages. Opponents of interracial marriages were heard at the time of Perez in 1948 and even at oral argument at Loving vs. Virginia in 1967.
Despite these claims and the changes in who may marry, the legal claims for polygamy have not advanced in the last 54 years since Perez. Allowing interracial marriages did not lead to polygamy nor will including same sex couples in marriage lead to polygamy or the other claims that are raised by the fear mongers.
I would like to just speak for a moment on the public policy issue that was addressed by our first speaker.
In the public policy statements that were made in the 1991 gay rights law and the second parent adoption were neutral in their statements. They neither favored marriage for same sex couples nor disapproved of it and particularly the statement in the second parent adoption law, the legislative history makes it very clear that this issue is to be left to another day. And that's what we're here for today.
In conclusion, arguments against including same sex couples and the freedom to marry just fail when they're scrutinized. Earlier this year I represented a couple who had been together 50 years. They cared for each other through their entire lives and supported each other's family members when they became ill. They have lived honorable and productive lives together, more so because of their union than if they were separate.
Nonetheless, under this present statutory scheme, a couple that have been married only one day is entitled to literally hundreds of statutory protections that are denied to this couple that have spent their life together.
(INAUDIBLE-SOME TESTIMONY NOT RECORDED DUE TO TAPES SWITCHING SIDES) correct this injustice and afford these citizens equal protection under our laws.
Thank you very much.
REP. LAWLOR: Thank you. And now we have an opportunity for questions from members of the committee and I would just like to start off with a couple for Attorney Baker.
I'm intrigued with what you were saying about the portability of these various statuses and whether it's civil union or marriage or partnership or reciprocal benefits, whatever it is. And I just had a couple of questions about what other states have done.
Are there other states -- are there any states -- I know they passed the so-called DOMA. So there are statutes that prohibit the recognition of this status from other states, right?
ATTORNEY JOSHUA BAKER: Right.
REP. LAWLOR: Is there any state that's actually made it illegal to enter into a same sex marriage and apply the criminal penalty to that or anything like that?
ATTORNEY JOSHUA BAKER: I don't believe there have been any criminal penalties applied as to whether a law system could be set up.
In some states there's a penalty for officiating at a ceremony which is known to be illegal and not recognized in the state. Say, it maybe a penalty to officiate at a knowingly underage wedding or something like that. It may well be that in those states that there would be a provision that would apply generally to that. I'm not aware of that, but I'm sure that there are some overlaps in the states.
REP. LAWLOR: So as far as you know, there is no state that actually prohibits a marriage of same sex couples? It's simply a question of whether or not they would be recognized. Is that correct?
ATTORNEY JOSHUA BAKER: Marriage in every state is the union of a man and a woman. Any other union of that simply is not a marriage. Is there a penalty for going through a ceremony? Nobody is going to be put in jail. There's no penalties for going through a ceremony, correct.
REP. LAWLOR: And so when it comes to these other statuses, so civil union, I guess, has been covered in a number of states, but how about like California now, as I understand, they have something called "Domestic Partnership" --
ATTORNEY JOSHUA BAKER: Right.
REP. LAWLOR: And there's a registry and keys into some state laws that govern -- that otherwise govern married couples, but some of them have been set aside and applied to this new status called "Partnership" or whatever.
Would other states that have these DOMA laws, is this the kind of thing that's also not going to be recognized because of those kinds of laws in other states?
ATTORNEY JOSHUA BAKER: Perhaps the most constructive analysis is from Georgia where the court said, first of all, we don't have any device by which to recognize a domestic partnership because a domestic partnership is not an entity under Georgia law. A civil union is not an entity under Georgia law and so the only thing left to us is whether we're going to recognize it as a marriage and the court said well, it's not a marriage, so we ought not recognize it as a marriage, first of all, and even if we did, or even if we were inclined to, we've already said that we are not going to recognize -- the Legislature said we're not going to recognize same sex marriage.
REP. LAWLOR: So is there any -- because we've had some sort of general discussions in this committee about other alternatives besides marriage and civil union. So is there -- like, for example, earlier this year, we made it clear that individuals could designate another person to exercise certain things like hospital visitation, that type of thing.
And so I take it that in your opinion if that involved, let's say, a same sex couple, there's no way that would necessarily be respected in any other state, even though we've got a clear public policy here in Connecticut?
ATTORNEY JOSHUA BAKER: For portability, it's going to be an issue of each state. I think that really identifies the crux of what the debate is here, whether marriage is a relationship, a partnership between couples or whether it has broader ramifications, whether it is a relationship that has always had diversity between the parties and had permanence and had fidelity and built into the system and -- the British Columbia Court that dealt with a same sex marriage case almost a year ago now, their question was, is there a way to treat same sex couples the same while still recognizing this is what marriage is? That marriage is a foundational element of our society and yet still treat same sex couples right. And I think there are ways to provide benefits where there's need for same sex couples.
I know, even under existing law -- Susan Price Livingston has identified a number of opportunities and ways to do that, whether it be through medical powers of attorney and wills and the other legal devices that have existed for a long time, including the new provisions of this past year.
There are ways to deal with some of those concerns. The portability question, though, is still going to remain.
REP. LAWLOR: So is there -- do you think, is there anything we could do -- if we wanted to make a simple system like understanding that there's a lot of controversy about marriage and civil unions, we're just trying to say well, let's try and do something completely separate and call it a completely different name and not link it to all of the 588 Connecticut laws that apply to married couples. Just a totally separate thing to list some things that the Legislature may add onto the list or subtract from the list over time, kind of like what California is doing.
ATTORNEY JOSHUA BAKER: What California is doing, right.
REP. LAWLOR: Is there any way that you see that we can do that and not open to trouble, based on what other states have adopted in these DOMA laws?
ATTORNEY JOSHUA BAKER: No, I think that's kind of the nature of our federal system. One state can't legislate outside of its boundaries and that's essentially what the federal Defense of Marriage Act did. It was not a federalization of marriage law, to the contrary. It was a statement that says marriage shall be determined by each state and each state has its own right to determine its own policies with respect to marriage. And so if Connecticut were to adopt a domestic partnership, it may be that California would recognize it if the provisions are similar, but if a state doesn't have a domestic partnership system already, it's basically impossible, to my knowledge, for Connecticut to impose a system that is going to legislate outside the boundaries of the State.
REP. LAWLOR: And even if we wanted to think of it in terms of like for portability purposes, like a business entity or something like that, which I guess we can do, to say that we'd like to establish this partnership like we would with a business because we have an interest in protecting certain rights of these couples. You're saying even that probably wouldn't be respected in other states?
ATTORNEY JOSHUA BAKER: In Connecticut, conflict of laws happen in all kinds of areas, whether it be business partnerships or tort law or family law and every state has its own rules for conflicts of laws and choosing choice of law.
In Connecticut, it's based most recently on the most significant contacts with the State. And so, in that case, Connecticut - say in a contract situation, they would decide whether the couple had most significant contacts with Connecticut or most significant contacts with another state.
And if it had most significant contacts with Connecticut, it would apply Connecticut law. The same kind of analysis takes place in another state.
If it determines that there's, say, a business contract and most significant contacts are with Connecticut, it's likely that the court may apply Connecticut law. The public policy exception would still fit in there if the court decided that recognizing that was contrary to public policy of the state, it could still say that we're not going to recognize it. If it's in a business-kind of setting, and it's set up that way, it's probably less clear of what a court in another state is going to do. If it doesn't resemble same sex marriage at all, it may not come under that prohibition.
REP. LAWLOR: Okay. So, another question. Like if there is -- you testified that these states have declared a public policy against same sex marriage, right? And I guess my question is, is there something that would be not same sex marriage, something far short of that, that would not necessarily violate the public policy declaration? I mean, could there be some system of rules that could be made to apply to same sex couples totally separate from marriage that would not violate the public policy against same sex marriage in another state? Do you see what I'm saying?
ATTORNEY JOSHUA BAKER: I certainly understand what you're saying. It's not something I've thought through as to how you could frame something that wouldn't look like marriage. In Rosengarten, the claim wasn't even that civil union would be a marriage. It was that it should fall under the catch-all provision of the family or the domestic relations code.
REP. LAWLOR: Right.
ATTORNEY JOSHUA BAKER: My sense is probably that if it looks like an escalations law, it's going to fall within the prohibitions of same sex marriage in other states. If it looks like business partnerships, it probably won't. And quite frankly, I haven't thought about how you would set it up, one way or the other.
REP. LAWLOR: So you think that in these other states that anything that provided specific rights to same sex couples would fly in the face of the declared public policy?
ATTORNEY JOSHUA BAKER: I can't speak for each state, but I suspect the more it looks like marriage, the more likely it is to be construed that way. The less it looks like marriage, the less likely it's to be construed that way.
REP. LAWLOR: Now, I think we're all aware the United States Supreme Court has agreed to accept a case involving sodomy laws.
ATTORNEY JOSHUA BAKER: Right.
REP. LAWLOR: And I think some of the more fundamental arguments that will be made in the context of that case will relate to privacy and the interest -- the citizen's right of privacy and intimacy, that type of thing.
Do you have any sense that some of the arguments you just heard from the other two speakers may also be relevant in that case and that the decision the Supreme Court is going to make in potentially striking down the anti-sodomy laws in some states, might actually have an impact upon these issues that we're discussing today?
ATTORNEY JOSHUA BAKER: I think it's (inaudible) given that it would. Mary spoke about liberty interests and the right of a couple to enter into a same sex union. If the court declares that there is a right to do that, it will certainly influence this debate.
I'm not convinced the court is going to do that and there's a lot of ways that the court could resolve that case without going there. But I think it's pretty much common knowledge that that case could have a broad impact on the same sex marriage debate.
REP. LAWLOR: Okay. Alright, thank you. Other questions? No other questions, wow. Okay.
Did you want to -- Attorney Bonauto, Attorney Murphy, respond to any of the questions I just asked?
ATTORNEY MARY BONAUTO: I just wanted to point out one interesting parallel, I think interesting parallel with respect to these state Defense of Marriage Acts. I guess we have 36 of them, you say.
ATTORNEY JOSHUA BAKER: Thirty-six, yes.
ATTORNEY MARY BONAUTO: At the time that the California Supreme Court considered its restriction on interracial marriage back in 1948, there were actually 38 states that forbade interracial marriage. Six of them did it by constitutional provision. Several states criminalized interracial marriage at that time. And, in fact, when the California Supreme Court struck down that law in 1948, a very bitter dissent observed that in many other states this marriage wouldn't even be recognized.
But I think that court recognized, just as I think this body can recognize, is that the issue before you is what is right to do for the citizens of Connecticut. What are the rights that they deserve and not what is the lowest common denominator among other states about what they will or will not tolerate or what their public policies may or may not be.
The other point that I wanted to make is that I actually disagree with Joshua about the issue of portability with respect to how closely something looks like a marriage. I actually think the closer that something is to marriage, ironically the more likely it is to be considered portable and I say that fully aware of these 36 state laws which he acknowledges come in varying degrees. And I say that because of the overwhelming history we have in this country of respect for marriages. In cases in every state, including this one, where there is some sort of public policy or some expression from the legislature disfavoring a particular kind of marriage, but nonetheless, when faced on the ground with the existence of a marriage, everyone, courts and lawmakers alike, recognize the most important thing to do is to support that family and recognize the marriage.
So I think neither of us really knows the answer to this, but I would just like to say, on the record, at least, that I have an extremely different view of it.
And I guess the final thing that I'll say that I wanted to just respond to is with respect to this issue of other alternatives that families might undertake, you know, powers of attorney and so on. I've actually asked many, many married people how they would feel if I asked them to trade in their marriage license or certificate in exchange for a civil union license or a domestic partnership or a power of attorney and I have yet to find someone whose willing to take me up on it.
And I think that just speaks to the enormous security that everyone knows that marriage provides.
So that's all I had to say. Maybe you want to respond.
ATTORNEY JOSHUA BAKER: I guess just a couple of responses to that.
First of all, Loving vs. Virginia, the Supreme Court made it very clear in that case that the ban on interracial marriage was essentially a badge of white supremacy. It was not an attempt to provide integration. It was not an attempt to do anything other than to elevate white persons over African Americans. That's all that the laws were intended to do.
I think it's pretty much indisputable that marriage laws are not intended to elevate men over women or women over men. There's not a sex discrimination issue in that at all.
REP. HAMM: I'm not quite sure.
ATTORNEY JOSHUA BAKER: Pardon?
REP. HAMM: I'm not quite sure (inaudible-microphone not on)
ATTORNEY JOSHUA BAKER: Okay. And -- I'm sorry.
REP. LAWLOR: There was a time we had these -- what's it called, (inaudible) laws? What were those about? Do you remember?
REP. HAMM: (INAUDIBLE-MICROPHONE NOT ON)
ATTORNEY JOSHUA BAKER: Right.
REP. LAWLOR: And when were those phased out? Do you know?
ATTORNEY JOSHUA BAKER: I don't have dates on that, I'm sorry.
REP. LAWLOR: Attorney Bonauto, do you know?
ATTORNEY MARY BONAUTO: Dates of those laws in Connecticut?
REP. LAWLOR: Yeah.
ATTORNEY MARY BONAUTO: The question is when were they repealed because --
REP. LAWLOR: Yes, right.
ATTORNEY MARY BONAUTO: And I don't know the exact answer to that. In many states it was sort of a long term process commencing in the legislature, but then the courts needed to do some cleanup work, as well. But somebody knows the answer.
ATTORNEY MAUREEN MURPHY: I believe it was --
REP. LAWLOR: If you could just come to the microphone because otherwise we won't get it in the transcript.
ATTORNEY MAUREEN MURPHY: I believe that -- the expert I know on this is Leslie Brett who is sitting over t here and she told me that it was 1860 that the covertures laws were repealed. Is that correct?
LESLIE BRETT: The passage of the Married Women Property Act (INAUDIBLE-NOT SPEAKING INTO A MICROPHONE)
REP. LAWLOR: So if I could just repeat so it's on the transcript, you said passage of the Married Women Property Act was --
LESLIE BRETT: Was to repeal the coverture laws and to give basic rights to property and other actions for women - (INAUDIBLE-NOT SPEAKING INTO A MICROPHONE)
REP. LAWLOR: Okay. Alright. Thanks. And if anyone knows, I think there were some members of the committee that were kind of interested in what was pending in other states in terms of lawsuits or legislative initiatives. People are just generally interested about that.
We had a lot of discussion about what's already been enacted and what cases have been decided, but I know there's one pending in Massachusetts. Right? Is that correct? And New Jersey, I believe. And I don't know -- Attorney Baker --
ATTORNEY JOSHUA BAKER: (INAUDIBLE), as well, but there are cases currently pending right now in Massachusetts, New Jersey, and Indiana dealing with same sex marriage. There's also a civil union recognition case pending in Indiana.
REP. LAWLOR: Attorney Bonauto.
ATTORNEY MARY BONAUTO: That's correct and I think you'll see a wide range of legislative proposals in many, many states over the next two years dealing with these issues, marriage and civil unions and other matters, as well.
ATTORNEY JOSHUA BAKER: And on both sides of the issue, there will be proposals put forward.
REP. LAWLOR: I see. And one question that has come up a little bit since you both seem to be experts on this topic is, what's going to happen when people arrive in our state, for example, from other nations or potentially other states that actually do allow for same sex couples to be married, for example, the Netherlands? I mean, what do you do when a Dutch couple settles here and want to be divorced or want to file a joint tax return? How does this work? Does anybody know?
ATTORNEY MARY BONAUTO: Well, I think we're going to have to -- (inaudible) about this, but I think what I would say is that, again, there's not any treaty that bears directly on this issue. It's generally considered a matter of comity - C-O-M-I-T-Y not comedy, funny comedy and I actually think again you're going to have the analysis that I think there's some disagreement about how strong is the public policy of the State of Connecticut with respect to this marriage.
Let's say, for example, it's an issue of somebody, they move here and one of them dies without a will. You know, what public policy is really advanced in Connecticut by leaving intestate the spouse? Probably none and as I think Attorney Murphy pointed out in her testimony, to the extent that this body has already taken particular steps with respect to the co-parent adoption law and the law that it passed last year, it addressed the marriage issue to say we're not talking about marriage here.
So, I think it's going to be very hard to discern any sort of negative public policy in the law of Connecticut right now with respect to that issue.
ATTORNEY JOSHUA BAKER: I guess the analysis is pretty much the same as to whether Connecticut public policy would recognize it with a foreign marriage. Out of the country marriage, Connecticut law already says that it won't be recognized unless it's valid in -- or it could be entered into in the State of Connecticut.
And so there are provisions on the books for that and also I think (inaudible) it's just the fact that that is not subject to good faith and credit limitations, (inaudible) the sister states' recognition.
REP. LAWLOR: Because my understanding was slightly different. My understanding was that Connecticut law would recognize marriages which were valid where they're performed unless they are prohibited in the State of Connecticut not unless they're recognized.
ATTORNEY JOSHUA BAKER: I'm sorry, I may have misstated that. That's correct.
REP. LAWLOR: So, I don't know that there's a prohibition on same sex marriages in Connecticut. We're just saying we won't issue marriage licenses, but --
ATTORNEY MARY BONAUTO: It's a matter of practice, that's correct. There's nothing that specifically proscribes these marriages. It's simply that licenses are not accorded to same sex couples.
REP. LAWLOR: Because like, for example, bigamist relationships, polygamy -- there's a prohibition on that and marrying underage persons and persons of the same -- close degrees of kinship. Those are actual prohibitions, very specific with penalties attached and my understanding was that our law says we won't recognize a foreign marriage that would be prohibited and it's not really clear there's any actual prohibition on same sex marriages in the State.
ATTORNEY JOSHUA BAKER: And then for the court to determine, but right. I think that in every state so far where it's been does the court permit same sex marriages or not, even where there's no statutory statement saying marriage requires a man and a woman or it does not, in every case, in every litigation so far, the court has said our statutes contemplate marriage as a man and a woman and I think the analysis would probably follow similar in Connecticut.
But you're probably right, there are hairs to be split there.
REP. LAWLOR: Now, are there states that still recognize common law marriages?
ATTORNEY JOSHUA BAKER: There are. I don't have an exact number of states that do, but --
ATTORNEY MARY BONAUTO: Actually, there's enormous hostility among the states to common law marriage except in very few states. There's a general hostility to it in this general northeast and New England region.
But yes, there are times, for particular purposes of litigation and inheritance issue, whatever it might be, a state will recognize a common law marriage for a particular purpose.
REP. LAWLOR: And I guess we all kind of know what it is, but can you, in legalese, define what is a common law marriage? How does a court say it exists and in a state that recognizes them? Do you have any idea what the earmarks of it or anything?
ATTORNEY MARY BONAUTO: As a general matter and it's hard to over-generalize about this, but a couple hold itself out as a married couple, has lived together and established that reputation in the community for a sufficient period of time that people treat them as married and they act as though they are married.
REP. LAWLOR: And some say it's recognized, though?
ATTORNEY MARY BONAUTO: Yes, but very few, I have to say.
ATTORNEY JOSHUA BAKER: And just to clarify a little bit to it. I think there are states also that have recognized, as Mary was saying, will recognize a common law relationship for a particular purpose. In most cases, at least that I'm familiar with, they've not called it a common law marriage, though recognizing that some of the (inaudible) relationship. Basically, they reach an equitable result without identifying it as a marriage because when you call something a marriage, obviously it attaches a whole lot of legal implications to that. So, they refer to it other terms. But they will recognize common law relationships for some purposes in some cases.
REP. LAWLOR: So, would you -- do you think that runs afoul of the DOMA laws that exist out there? Is it possible that some states might recognize same sex relationships in the same way some states, for certain purposes, recognize common law? I mean, is that a possibility here or is the public policy --
ATTORNEY JOSHUA BAKER: I think that where there is a clear statement --
REP. LAWLOR: -- get in the way of that?
ATTORNEY JOSHUA BAKER: Where there is a clear statement of public policy, it's less likely, but I think it was back in February, the Washington Supreme Court came down with a decision. Basically in Washington, opposite sex couples that live together are entitled to a share of the estate if the partner dies. Under the existing precedent, same sex couples were not accorded that and so Washington Supreme Court says if you're in -- unmarried, opposite sex couples, that we have to treat same sex couples the same. It wasn't comparing married couples and unmarried couples, but it was comparing unmarried opposite sex and unmarried same sex and in that case, they said you have to treat them all equally.
ATTORNEY MARY BONAUTO: Can we go back to a different point for a moment?
REP. LAWLOR: Sure.
ATTORNEY MARY BONAUTO: Which is the point of about how I do think the race discrimination cases speak to this issue and provide, I think, a very strong analogy to the sex discrimination issue here. And I realize this -- pardon me if I'm sounding like I'm in court. I don't mean to be at all, but I really do think that these cases are vital in this analysis.
And the reason that I say that is right now if I wanted to marry Attorney Murphy, I could not do that, but Mr. Baker could marry Attorney Murphy. So I'm being treated differently as a woman than he would be as a man. That is classic sex discrimination. That's exactly the same analysis that the California Supreme Court went through in Perez vs. Sharpe and that the U.S. Supreme Court went through in Loving vs. Virginia, although the Supreme Court in Loving vs. Virginia went even further and acknowledged a marriage to be a fundamental right in addition to having the particular race discrimination before it.
Now, when Mr. Baker talks about elevating men over women, I guess I just want to point out that when -- actually back when the 14th Amendment was adopted, and Congress was debating whether or not - oh my goodness, are we going to have to get rid of interracial marriage bans in this country if we pass the 14th Amendment, some people at that time said no, don't worry about it because all Blacks and all Whites are being treated the same way. well, the United States Supreme Court, on two different occasions now, has said no, no, when we look at race discrimination, and also when we look at sex discrimination, we're not looking at the experience of groups. We're looking at the experience of individuals. And if I am denied the opportunity to marry a person of my choice because of my sex, and he could marry this person of my choice because of his sex, then that is sex discrimination just as the courts have previously condemned race discrimination.
And you're looking totally puzzled, but I did try to put this in my written materials, as well.
REP. LAWLOR: Representative Hamm.
REP. HAMM: The reason I was frowning is as you were speaking, the thing that has been troubling me as a policy -- look at all of these issues and marriage and intimacy and privacy and all of those very important personal individual issues.
I've been struck with what kind of role legislators can play in deciding what is the right answer for individuals in those very private kinds of decisions and it just has always seemed to me that courts are in a better position to do it case-by-case because of the nature of judicial decrees. So I think that's why I'm struggling with what our role is because it's so personal and I do think that you're quite right, if we approach it more from a sex discrimination kind of perspective, that makes a lot of sense to me because I, as an individual female, should be able to choose my life partner or not.
So, that's why I was frowning.
ATTORNEY MARY BONAUTO: Well, if I may, just respond to that very, very briefly. I actually think this body has an absolutely enormous role to play in this discussion and this body could absolutely and the existing system of excluding same sex couples from marriage in light of the Constitutional concerns, but also just because it makes sense even setting apart the Constitution.
This is not simply a job that has to be delegated to the courts. Far from it. it's actually incredibly refreshing that this body is taking a very serious look at these issues outside of the courtroom in the context here where you can hear from various people and make a decision accordingly, in light of Constitutional principles, but also in light of just the public policy concerns of protecting families in this state.
ATTORNEY JOSHUA BAKER: I guess I agree that marriage is an issue that should be dealt with legislatively. Marriage is certainly -- it's a personal, private relationship, but it's also a social institution and has ramifications for all of Connecticut's society. And those are the kinds of questions that's appropriate for this body to consider in dealing with marriage laws.
And it still remains for the courts to provide equitable solutions in individual cases that come before them and there's certainly a role for the courts, but there's a balancing and an equal role for the Legislature to play.
REP. HAMM: (INAUDIBLE-MICROPHONE NOT ON) well, it won't get to the court unless statutes -- (INAUDIBLE-MICROPHONE NOT ON)
ATTORNEY JOSHUA BAKER: Well, I think there's a number of examples where cases have been to the courts without legislative action. I mean, that's what we're dealing with in Massachusetts and Vermont and certainly there are individual cases, as well, such as the case in Washington where that was simply two men, one died, and they went to court to decide the estate. It wasn't a challenge of existing laws. It was just a search for an equitable solution to their dilemma and I think there's always room for the courts to act in those kinds of situations, within the parameters that are set up by the Legislature.
I think that's the nature of the way our governmental system is set up.
REP. LAWLOR: Representative Fox.
REP. FOX: Thank you. Just a follow-up to one of the questions (INAUDIBLE-MICROPHONE NOT ON)
REP. LAWLOR: Is your microphone on?
REP. FOX: It is now. The federal act, as best I can tell, has been around since 1996. Has the validity or the constitutionality of that been challenged or is it in the process of being challenged?
ATTORNEY MARY BONAUTO: The answer -- you needn't --
REP. LAWLOR: Go ahead.
ATTORNEY MARY BONAUTO: -- but my answer to that is no and no and the reason for that is because the federal law does, as I think Attorney Baker said, does two things. One of which is to define marriage for purposes of federal law and programs as union of one man and one woman. There's no way to actually ask the government to really reconsider that definition either through the Congress or the courts unless you actually have a marriage that doesn't meet that definition. You can ask them to reconsider it.
REP. FOX: Let me ask you a follow-up question then. We have been given here today the list of some 36 states that have adopted it. So, roughly 70-odd percent of the jurisdictions in this country have adopted DOMA in one form or another. And even in light of the sex discrimination that you have raised, and some of these appear to go as far back as 1996, 1997, 1998, has that issue not been raised in any of those jurisdictions or is it pending in those jurisdictions? Why have we not seen any definitive ruling with respect to that kind of question in the 36-odd jurisdictions that have adopted it?
ATTORNEY MARY BONAUTO: Well actually, one of the cases that's presently pending, the one that was referenced in Indiana, is actually, among other things, challenging the Indiana version of this Defense of Marriage Act, if you will.
There are states that don't -- that haven't gone out of their way to try to define -- rush to judgment on this issue, which include a number of the states in this region except for Maine which has passed a similar law. And in those states, there are marriage cases pending.
REP. FOX: Susan Price Livingston may hate me for this, she doesn't answer the phone when I call anymore. That's not true. I'm just kidding.
But it would appear to me that if 36 states have adopted legislation, and I recognize it varies from state-to-state, but as I understand what you're telling us, there is only one case pending in which the validity, constitutionality, of it has been challenged? That raises some questions in my mind that I feel I need to get an answer for and I'm just wondering why.
ATTORNEY JOSHUA BAKER: I guess, perhaps, I could take a stab at that.
ATTORNEY MARY BONAUTO: I'm happy too, as well.
ATTORNEY JOSHUA BAKER: Okay, great.
ATTORNEY MARY BONAUTO: No, go ahead.
ATTORNEY JOSHUA BAKER: Just as far as DOMA challenges just more generally, the Georgia case, it was Burns vs. Burns doing civil union recognition in Georgia, that case did challenge both the state Defense of Marriage Act and the federal Defense of Marriage Act. The federal Defense of Marriage Act, it's not clear whether it was properly pled in the case, but it was in the pleadings. The court didn't address the Constitution in its decision, but in the pleadings and in the brief, there was reference to the federal Defense of Marriage Act.
In Indiana, certainly they've challenged the federal Defense of Marriage Act, as well as the state Defense of Marriage Act.
REP. FOX: What's the status of that now? Where is that case in Indiana? Is it before their highest court?
ATTORNEY JOSHUA BAKER: No. There has been a complaint at the trial level and the State has not filed its response of pleadings yet.
ATTORNEY MARY BONAUTO: And if I may add to this, I think before you file a lawsuit and challenge anything, you need to be injured, you need to have standing in order to sue. Insofar as Attorney Baker has set out, some of these laws are really geared towards recognition of marriages of same sex couples from other states. There are no such people at this point. So there's no way to challenge the recognition provisions. So to the extent that one --- really, the only choice left to an individual then, is to say I want to apply for a marriage license in my home state and be denied and essential file a marriage case.
So, I realize it's odd to have all these laws out there, but the technical legal question is, who has been injured by the non-recognition piece at this point? Should we prevail in Massachusetts? Should the plaintiffs prevail in New Jersey? Then I think you'll start seeing these laws being challenged right and left, absolutely.
ATTORNEY JOSHUA BAKER: I should add also that there has been a 7th Circuit decision out of Illinois dealing with a same sex couple who filed as married on their tax forms. And they challenged the federal Defense of Marriage Act saying it was unconstitutional. I'm not sure of all the procedure in that case, but basically the court said in order to challenge the federal Defense of Marriage Act, you have to have a same sex marriage somewhere else in order to have standing of the challenge of the Defense of Marriage Act, essentially the same thing as married, it was just saying.
So, they had no standing in that case. It went up to the 7th Circuit twice and the 7th Circuit essentially said don't come back a second time.
REP. FOX: One other different area. You had talked about the issue of recognition in other jurisdictions and it wasn't clear to me. The legislation that we adopted last year, which provides for certain benefits to all people the right to be recognized in conjunction with a hospital setting, a nursing home setting, etcetera.
Do I understand you to suggest that it is your opinion that that legislation would not be accepted if used in another jurisdiction?
ATTORNEY MARY BONAUTO: It's my intention that that legislation is not going to protect people for the most part once they are beyond Connecticut's borders. That's correct.
REP. FOX: And tell me why.
ATTORNEY MARY BONAUTO: Well, it's a long answer.
REP. FOX: That's alright.
ATTORNEY MARY BONAUTO: Number one, it has to do with comparing that legislation and the status that it creates, designation of the decision-maker and domestic partner. That is very distinct from the status, for example, of marriage and spouse, which is something that every state has. Every state has marriage. Every state has spouses. Not every state has these sort of -- the kinds of decision-making capabilities that you created through your statute last year.
And I think we would probably disagree about this, but divorce, for example, is something that's accorded full faith and credit across state lines.
Now, divorce is not the same thing as (inaudible-background noise) divorce comes through judicial proceeding, but there are many people who think that a marriage is a whole lot more like a divorce and therefore, should be acknowledged across state lines because it can be performed by judicial officials. It so much settles an individual's legal status with respect to the spouse and the state and third parties. So there are a lot of reasons to think that marriage is by contrast entered into in a particular state despite these sometimes strong, sometimes lame public policies expressed in these 36 laws, would be recognized across state boundaries.
This, by contrast, is something that applies to Connecticut residents and there's no reason to think that a similar law in New York would have to be recognized here unless, again, this body said we weren't going to recognize similar laws.
REP. FOX: But I look upon that legislation as being neutral with respect to the issue of marriage. It is more of a contract right. I designate you to act for me. I'm just questioning as to why one would think that that would not be enforceable in another jurisdiction whatever their laws may be with respect to marriage. I see it having -- being totally irrelevant with respect to that issue.
Maybe we're in disagreement on that, I'm not entirely sure.
ATTORNEY MARY BONAUTO: I don't see it as being a marriage either. What I'm trying to -- obviously, not very effectively trying to say, is that all kinds of states pass laws that provide some measure of protections to their citizens. But then the question is, let's say a couple from Connecticut goes to Florida for a vacation and runs into a decision where there needs to be medical decision-making. There is -- I'm not aware of anything that would compel Florida authorities to recognize that document.
And sure, you could run to court and you could say, in the context of the medical emergency, please recognize this document. I have the right to make medical decisions. And then you're going to have to go through an analysis about whether -- courts will go through an analysis about whether or not that document or that document, pursuant to Connecticut's law, should be accorded full faith and credit. And it's just a very difficult burden on people and again, to the extent that things that are strongest in terms of full faith or credit, as Attorney Baker mentioned earlier, are things that are most like judicial proceedings.
And the contract document that you're talking about is not very much like a judicial proceeding. And I, in no way, mean to denigrate this document because I think it was an important protection to provide to people. I just think it's going to be very unlikely that it's going to protect people across state borders.
REP. FOX: Would you draw the same conclusion with respect to a power of attorney? Would you draw the same conclusion with respect to a power of attorney?
ATTORNEY MARY BONAUTO: Well, probably yes, but let me just add one caveat there, which is that many, many states have something called power of attorney with respect to either health care or with respect to finances that may make it, at a minimum, just from a practical standpoint, setting aside the law, much more amenable if you're in a medical crisis situation to be able to -- you know, you're in Florida, to be able to pull out your power of attorney and say I've got a power of attorney. Florida hospital workers are used to seeing powers of attorney and therefore, just as a practical matter, setting aside legal compulsion, that power of attorney is recognized.
REP. FOX: But your conclusion would then have to be the same with respect to my designating a health care agent? My using a living will? If I happen to be on vacation in Florida, then I would, I assume, using your argument, run into the same difficulty?
ATTORNEY MARY BONAUTO: I think there will always be issues about recognition of these documents across state lines.
REP. FOX: Having nothing to do with marriage or homosexual relationships or heterosexual relationships?
ATTORNEY MARY BONAUTO: That is correct.
REP. FOX: That's just your opinion, in general, with respect to these kinds of documents?
ATTORNEY MARY BONAUTO: That is correct.
REP. FOX: Okay. Thank you.
REP. LAWLOR: One other technical question about this recognition stuff.
Correct me if I'm wrong. I mean, there are various states and other nations that have minimal standards to get married, for example. So there's no waiting period or I guess Nevada, for a long time, was notorious. You could just show up and be married an hour later, right? That's still the case, I take it, as far as you know?
ATTORNEY MARY BONAUTO: I don't know.
ATTORNEY JOSHUA BAKER: As far as I know, but I'm not familiar.
REP. LAWLOR: Because the reason I bring it up, in the discussion we had earlier about recognizing marriages from other jurisdictions and the distinction between whether or not you could do the same thing here versus whether or not the same thing is prohibited here.
So, in Connecticut, I think there's -- maybe Maureen knows. Is there -- are there requirements necessary to obtain a marriage license in Connecticut? I think they're somewhat higher than they might be, let's say, in Nevada, right? Is there a waiting period? Does anybody know?
ATTORNEY MAUREEN MURPHY: There is no waiting period. There is no waiting period. However, there are certain requirements. You have to apply for a license, which generally you would do the day before. And you would have to fill out the application and it has to be solemnized by someone who is listed in the statute.
But other than that, there really are no requirements. There's no residency requirements for a period of time.
REP. LAWLOR: For a Connecticut marriage license?
ATTORNEY MAUREEN MURPHY: That's correct.
REP. LAWLOR: Alright. I was just curious. Thanks. Are there any other questions? If not, I just wanted to thank our three guests here today.
And I know, for members of the committee, the Office of Legislative Research had prepared a couple of additional reports that were done at our request after -- which were submitted after last week's thing. I think there was a report on the American Law Institution recommendations on recognizing various relationships above and beyond marriage and was there one other one, Susan?
UNIDENTIFED SPEAKER: And the other one was about whether or not an Indian tribe could change its laws to conduct same sex marriages.
REP. LAWLOR: And that's available now, I take it?
: Yup. And they're all up on our internet site, as well.
REP. LAWLOR: Alright. Well, thank you very much and I think that's the end of our deliberations today and I would just ask perhaps Senator Kissel and Representative Fox and whoever else is interested, we could have a brief discussion after this meeting ends about where to go from here.
So, thank you all for your cooperation today.
(Whereupon, the information hearing was adjourned.)