PRESIDING CHAIRMAN: Representative Lawlor


SENATORS: Coleman, Kissel, Daily

REPRESENTATIVES: Feltman, Farr, Abrams, Cocco,

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.

SEN. KISSEL: No, I'm all set, Michael.


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.

ATTORNEY JOSHUA BAKER: Thank you for the chance to be here today, Representative Lawlor and members of the committee.

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.

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they called it at the time, but it was intended to mean by people -- African Americans and that law was ultimately repealed by the Massachusetts Legislature in 1842.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.

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.


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.

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" --


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.

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.

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.

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.

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.


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.


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.

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.

REP. LAWLOR: Okay. Alright, thank you. Other questions? No other questions, wow. Okay.

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 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.

ATTORNEY JOSHUA BAKER: I guess just a couple of responses to that.

REP. HAMM: I'm not quite sure.


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. 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?


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.

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.

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.

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.

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.

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?


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.

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.

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.

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.

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.

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.

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.

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: 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.

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.

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.

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.

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.

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.

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.

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?


REP. FOX: That's just your opinion, in general, with respect to these kinds of documents?


REP. FOX: Okay. Thank you.

REP. LAWLOR: One other technical question about this recognition stuff.


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.

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.

REP. LAWLOR: For a Connecticut marriage license?


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.

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?

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.