You asked about the Massachusetts Supreme Court's Goodridge v. Department of Public Health decision. You also wanted to know (1) whether Connecticut's constitution has language similar to that relied on in Goodridge and (2) what implications the Goodridge decision may have on Connecticut same-sex couples.

SUMMARY

On November 18, 2003, the Massachusetts Supreme Court invalidated the exclusion of same-sex couples from the states marriage laws (Mass. G. L. Ch. 207). It concluded that this exclusion violated the due process and equal protection provisions of the Massachusetts Constitution because no rational relationship existed between the prohibition of same-sex marriages and the state's proffered justifications: procreation, child development, and fiscal economy.

The Connecticut Constitution contains both due process and equal protection provisions with language similar to the Massachusetts Constitution. To date, no Connecticut court has been asked to rule on whether these provisions require the state to license same-sex marriages.

Goodridge's impact on Connecticut residents is unclear. Although there is no residency requirement for couples wanting to marry in Massachusetts, there is a law that requires town clerks to verify that out-of-state couples could marry in their home state before they issue a Massachusetts marriage license (see Greaney's Concurrence, Footnote 4). Other unanswered questions include (1) how Connecticut courts would view such marriages if couples file for divorce in this state and (2) whether the federal Defense of Marriage Act (DOMA) could be used to block recognition of the Massachusetts unions in Connecticut. For more information on the federal DOMA, see OLR Reports 2002-R-0957 and 2000-R-0062.

THE MASSACHUSETTS DECISION

Facts and Lower Court Proceedings

In March and April of 2001, seven same-sex couples applied for marriage licenses from town clerks in several Massachusetts towns. The clerks denied the requests because the applicants were same-sex couples. The couples filed suit in Massachusetts Superior Court seeking a declaration that the clerks' actions were unconstitutional. The lower court rejected their claims, holding that the state's prohibition of same-sex marriages rationally advances its interest in safeguarding the "primary purpose of marriage -procreation. "

At the request of both parties, the case bypassed the intermediate state appeals court and was taken up directly by the Massachusetts Supreme Court.

Questions Presented

The Supreme Court examined two questions:

1. whether the Massachusetts marriage statutes can be read to permit same-sex marriages and

2. whether the state law's implicit rejection of same-sex marriages violated the equal protection and due process provisions of the Massachusetts Constitution.

Claims Involving Due Process and Equal Protection Clauses

The Massachusetts due process clause provides: "Each individual of the society has a right to be protected by it in the enjoyment of his life, liberty and property according to standing laws. . . . " (Mass. Const. Pt. 1, Art. 10).

The equal protection clause provides:

All people are born free and equal and have certain natural, essential and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring possessing and protecting property; in fine, that of seeking and obtaining their safety and happiness. Equality under the law shall not be denied or abridged because of sex, race, color, creed or national origin. (Mass. Const. Pt. 1, Art. 1).

The Massachusetts Supreme Judicial Court uses a sliding scale for evaluating claims involving these two clauses. The most rigorous form of review is strict scrutiny, which applies when a statute implicates a fundamental right or uses a suspect classification, such as sex. For such a law to survive strict scrutiny, it must be the least restrictive and necessary means of advancing a compelling state interest.

In all other cases, the Court uses the "rational basis" test. For due process claims, this analysis requires that statutes "bear a real and substantial relation to the public health, safety, morals or some other phase of the general welfare" (Sperry and Hutchinson v. Director, 307 Mass. 408, 418 (1940)). For equal protection challenges, the rational basis test requires that an "impartial lawmaker could logically believe that the classification would serve a legitimate public purpose that transcends the harm to the members of the disadvantaged class" (English v. New England Med. Ctr. , 405 Mass. 423, 429 (1989)).

Goodridge: Majority Opinion

By a four to three margin, the Massachusetts Supreme Court vacated the Superior Court's ruling (Goodridge v. Department of Public Health, -- N. E. 2d--, 2003 WL 22701313 (Mass. Nov. 18, 2003) (copy enclosed)). The majority first held that the gender specific language of the marriage statutes demonstrates the legislature's intent to limit marriage to opposite sex couples. The majority then examined the constitutionality of this prohibition of same-sex marriage under the Massachusetts due process and equal protection provisions and found that the state failed to identify any constitutionally adequate reason for denying civil marriage to same-sex couples.

Conducting a rational basis review, the majority found no rational relationship between the prohibition and the state interests of fostering procreation, enabling child development, or preserving scarce state and private financial resources. Because the laws could not withstand

rational basis review, the Court declined to reach the plaintiffs' claims that the laws infringed their fundamental right to marry, thus triggering strict scrutiny review.

The Court reformulated the common law definition of civil marriage as ". . . the voluntary union of two persons as spouses, to the exclusion of all others" (Majority Opinion, Part IV).

Although the majority declared the Massachusetts same-sex marriage prohibition unconstitutional, it did not order the state to issue marriage licenses to the plaintiffs. Instead, it remanded the case to the Superior Court for entry of judgment, with a stay for 180 days, until May 16, 2004, to allow the legislature to take appropriate action.

Greaney's Concurrence

Justice Greaney joined in the majority opinion and wrote a separate concurrence. In his view, the Court should have used the traditional strict scrutiny equal protection analysis. This approach would have the Court find that (1) marriage is a fundamental right, (2) the Massachusetts marriage laws use a suspect classification based on gender to exclude same-sex couples from civil marriage and its legal consequences, and (3) the state failed to demonstrate a compelling interest in this exclusion (Greaney, Part (a)).

Dissenting Opinions

Justices Spina, Sosman, and Cordy dissented from the majority opinion and wrote separate opinions in which the other dissenters joined. Spina argued that the marriage license laws do not violate due process or equal protection clauses because they allow both men and women to marry members of the opposite sex. He also criticized the majority's reformulation of the definition of marriage as exceeding the traditional bounds of substantial due process (Spina, Part 1 and 2).

Justices Sosman, Cordy, and Spina also argued that the majority should have deferred to the legislature's determination that marriage in Massachusetts should be limited to opposite-sex couples.

According to Sosman, ". . . the issue is not whether the legislature's rationale behind [the statutory scheme] is persuasive to [the Court]," but whether it is rational for the legislature to reserve judgment on whether

changing the definition of marriage "can be made at this time without damaging the institution of marriage or adversely affecting the critical role it has played in our society" (Sosman).

PS: ro