You asked us to summarize Kerrigan v. Department of Public Health, 289 Conn. 135 (2008), the recent state Supreme Court case holding it to be unconstitutional to deny same-sex couples the right to marry.

SUMMARY

In a decision officially released on October 28, 2008 the Connecticut Supreme Court held, by a 4-3 margin, that the state constitution's Equal Protection Clause prohibits the state from denying same-sex couples the right to marry. In reaching this conclusion, the majority (justices Palmer, Katz, Norcott, and Harper) held that classifying people based on their sexual orientation triggers heightened judicial scrutiny and requires the government to prove that (1) the challenged classification serves important governmental objectives and (2) the discriminatory means employed are substantially related to those objectives. In its view, the government did not meet its burden and thus the plaintiffs were entitled to judgment as a matter of law.

Justice Borden, joined by Justice Vertefeuille, argued in dissent that classifications based on sexual orientation should be examined under the less rigorous rational basis standard and there were sufficient legitimate concerns to justify the state's limiting marriage to one man and one woman. Justice Vertefeuille wrote a separate dissent in which she emphasized that under court precedent, those challenging the constitutionality of a validly enacted statute must prove beyond a reasonable doubt that it is unconstitutional.

Justice Zarella also dissented separately, arguing that limiting marriage to heterosexual couples does not create a classification based on sexual orientation because the long-standing, fundamental purpose of marriage laws are to favor and regulate procreative conduct. With this procreative purpose in mind, people who want to enter into a same-sex marriage are not similarly situated to people who want to enter into a traditional marriage because they cannot bear children who are biologically related to both of them.

All three of the dissenters also concluded that there is no fundamental right to same-sex marriage, a question the majority did not reach.

FACTS AND LOWER COURT RULING

The plaintiffs were eight Connecticut gay and lesbian couples who were denied marriage license applications by the acting town clerk in Madison, Connecticut. In August 2004, they filed suit against the clerk and the state Department of Public Health (DPH, which maintains a statewide marriage registry) claiming that the reason their applications were denied was because they were same-sex couples. They maintained that this action violated their state constitutional rights to due process and equal protection of the laws and their rights to intimate expression and association.

The remedy they sought was (1) a judgment declaring unconstitutional any statute, regulation, or common law rule that is applied to deny otherwise eligible individuals from marrying because they wish to marry someone of the same sex and (2) an order directing town clerks to issue them marriage licenses and requiring the clerks and DPH to properly register them.

While their suit was pending, the legislature enacted PA 05-10, which reserved the term “marriage” for unions of couples of the opposite sex and established civil unions for couples of the same sex. The act includes a broad provision stating:

Parties to a civil union shall have all the same benefits, protections, and responsibilities under law, whether derived from the general statutes, administrative regulations or court rules, policy, common law or any other source of civil law, as are granted to spouses in marriage, which is defined as the union of one man and one woman.

Each side then asked the court to rule in its favor as a matter of law, agreeing that there were no material facts in dispute. The scope of the action was narrowed to whether the civil union law and its prohibition against same sex marriage could pass muster under the state constitution.

The plaintiffs argued that the legislature's creation of civil unions did not diminish the unconstitutional bar against marriage, primarily because the statutory scheme gave them second-class status and denied them the common cultural recognition and respect that goes along with traditional marriage. Among other things, the state argued that the plaintiffs were no longer able to prove constitutional harm because civil unions are the legal equivalent of civil marriage.

The trial judge, Patty Jenkins Pittman, ruled in the state's favor and dismissed the plaintiffs' complaint. She found that the plaintiffs had not suffered a cognizable injury under the current statutory scheme:

Civil union and marriage in Connecticut now share the same benefits, protections, and responsibilities under law. The Connecticut Constitution requires that there be equal protection and due process of law, not that there be equivalent nomenclature for such protection and process (Memorandum of Decision on Cross-Motions for Summary Judgment, No. NNH CV 04 4001813, July 12, 2006 at p. 24).

The plaintiffs filed an appeal and the state Supreme Court transferred the case to itself and ordered the dispute to be resolved en banc (by the entire Court rather than a three-justice panel).

THE SUPREME COURT'S MAJORITY OPINION

The majority opinion first discusses the interplay between federal and state constitutions and laws, noting that “federal constitution and statutory law establishes a minimum national standard for the exercise of individual rights and does not inhibit state governments from affording higher levels of protection of such rights” (Kerrigan, supra, p. 155 (emphasis in original)). It also cited prior state Supreme Court precedent directing courts not to interpret the state constitution so narrowly or literally that it fails to have contemporary effectiveness for all citizens (id., at 156-157). Finally, it set forth the factors identified in State v. Geisler, 222 Conn. 672 (1992) that courts must consider, where applicable, in determining the contours of the state constitution:

1. the text of the operative constitutional provision;

2. holdings and dicta of the state Supreme and appellate courts;

3. persuasive federal precedent;

4. persuasive and relevant precedents from sister states;

5. the history of the operative constitutional provision, including the historical setting and the debates of the framers; and

6. contemporary economic and sociological considerations, including relevant public policies (id., at 157).

Equal Protection Generally

The Equal Protection Clause of the state constitution, Article First §20, requires the uniform treatment of people standing in the same relations to a challenged governmental action. Laws that treat similarly situated people differently are subject to different levels of judicial review depending on the nature of the classification. The Connecticut and U.S. Constitution have both been interpreted as requiring three levels of review:

1. strict scrutiny for laws that infringe on fundamental rights or discriminate based on suspect classifications,

2. heightened scrutiny for laws involving quasi-suspect classifications, and

3. rational basis review for all other laws that discriminate against similarly situated groups.

Classifications Based on Sexual Orientation Are Subject to Heightened Scrutiny

The Kerrigan Court determined that the state's marriage laws discriminate against gay and lesbian couples, and that sexual orientation is a quasi-suspect classification. It rejected the state's assertion that gay and lesbian couples are not similarly situated to heterosexual couples, concluding that same-sex and opposite-sex couples have a multitude of characteristics in common, including the same interest in having a family and raising their children in a loving and supportive environment.

Using equal protection precedents in cases involving other quasi-suspect classifications, primarily federal cases involving gender-based discrimination, it found that sexual orientation met all the requirements:

1. gay people have been subject to and stigmatized by a long history of purposeful and invidious discrimination that continues to manifest itself;

2. attraction to persons of the same sex, the characteristic that defines members of this group, bears no logical relationship to their ability to perform in society, either in familial relations or otherwise as productive citizens;

3. sexual orientation is such an essential component of personhood that, even if there is some possibility that a person's sexual orientation can be altered, it would be wholly inappropriate for the state to require it; and

4. gay people represent a distinct minority of the population or are politically powerless (id., at 175-227).

Geisler Analysis

The Court then considered whether any of the factors identified in Geisler counseled against recognizing gay people as a quasi-suspect class. Since the text of Article First § 20 says nothing about the standard of review for equal protection claims or how it is to be applied, the Court concluded that this factor favored neither party. Turning to prior Supreme and appellate court precedent, the Court noted that it had never considered what level of scrutiny was appropriate for claims involving sexual orientation. It found a Connecticut appellate court decision applying the rational basis test unpersuasive because it (1) involved an interpretation of the U.S. Constitution and (2) relied solely on case law from other jurisdictions which were not persuasive because they either (a) failed to address the issue of whether gay persons comprise a suspect or quasi-suspect class, (b) failed to engage in any analysis of that issue, or (c) were predicated on precedent that has been overruled (id., at 228-230).

The Court acknowledged that the vast majority of federal courts that have considered the issue have concluded that sexual orientation is not a suspect or quasi-suspect classification and is subject to the least stringent rational basis test. But it found them unpersuasive because they relied heavily, if not exclusively, on a U.S. Supreme Court case that had since be overruled (Bowers v. Hardwick, 478 U.S. 190, overruled by Lawrence v. Texas, 539 U.S. 558 (1993)). In addition, those courts failed to reconcile their analyses with the one that the U.S. Supreme Court used in Frontiero v. Richardson, 411 U.S. 687 (1973) (plurality opinion)), which concluding that women comprise a quasi-suspect class (Kerrigan, supra, at 230-246).

The Court also acknowledged that most sister state courts that have addressed the issue have concluded that gay persons are not a suspect or quasi-suspect class. Again, it found those rulings unpersuasive because they employed a flawed analysis either because they (1) did not apply the Frontiero test (2) misapplied it. The Kerrigan Court cited with approval the analysis and decisions of the Massachusetts and California supreme courts, which held that gay persons are entitled to heightened scrutiny (Goodridge v. Dept. of Public Health, 440 Mass. 309 (2003); In re: Marriage Cases, 43 Cal. 4^th 757 (2008) (having no intermediate level of scrutiny, the California court applied the strict scrutiny test) (id., at 240-246)).

The last Geisler factor the Court considered, economic and sociological considerations, strongly favored recognizing gay persons as a quasi-suspect class. It concluded:

1. granting same sex couples the right to marry will not alter the substantive nature of the legal institution of marriage or diminish the validity or dignity of opposite-sex marriage;

2. excluding same-sex couples from the designation of marriage works a real and appreciable harm on them, in light of the long and celebrated history of the term “marriage” and the widespread understanding that the term describes a family relationship unreservedly sanctioned by the community;

3. because of the long history of discrimination that gay persons have faced, there is a high likelihood that the creation of a second, separate legal entity for same sex couples will be viewed as reflecting an official state policy that the committed relationships of same sex couples are of a lesser stature than comparable relationships of heterosexual couples; and

4. religious freedom will not be jeopardized by the marriage of same sex couples because religious organizations that oppose same-sex marriage as irreconcilable with their beliefs will not be required to perform same sex marriages or otherwise condone same sex marriage or relations (id., at 246-251).

Application of the Heightened Scrutiny Standard

The Court then applied heightened scrutiny to the classification. Under that test, the state had to prove that classifying people based on their sexual orientation serves important government interests and that the discriminatory means employed were substantially related to the achievement of those objectives. It concluded that the two justifications identified by the state – (1) promoting uniformity and consistency with the laws of other jurisdictions and (2) preserving the traditional definition of marriage as a union between a man and a woman – were not sufficiently persuasive (id., at 251-260). The Court indicated that the state provided no evidence that promoting uniformity was a motivating factor. And it concluded that a history or tradition of discrimination—no mater how entrenched—does not make discrimination constitutional (id., at 256).

The majority noted that its decision did not affect the validity of Connecticut's civil union laws (id., at n.84).

BORDEN'S DISSENT

In dissent, Justice Borden, joined by Justice Vertefeuille, disagreed with the majority's conclusion that sexual orientation is a quasi-suspect classification entitled to heightened judicial scrutiny. He contended that classifications based on sexual orientation are not quasi-suspect, primarily because in his view this group is politically powerful, not a discrete and insular minority that cannot effectively use the political process to protect themselves (id., at 280-299). In support of this argument he pointed to the legislative trend in Connecticut, noting that it shows the “extraordinarily great and growing political power of the gay community generally and more specifically with respect to the right to marry (id., at 281-282).” He was critical of the majority's discounting of the importance of this consideration.

Borden then rejected the plaintiffs' two other constitutional claims: that excluding them from marriage (1) discriminated on the basis of their gender and (2) infringed on their fundamental right to marry the person of their choice. Both arguments, if accepted, would have triggered strict scrutiny. With respect to the first argument, Borden concluded that their exclusion was due to their sexual orientation, not gender (id., at 306-310). With respect to the second, he reasoned that the fundamental right to marry is limited to marriage as traditionally understood – between a man and a woman. He opined that courts must exercise great

restraint when recognizing or expanding the scope of a fundamental right, in part because doing so places it largely outside the area of public debate and legislative action (id., at 310-320).

Concluding that Connecticut's marriage laws do not infringe on a fundamental right or affect a quasi-suspect class, Borden found that the legislation was rationally related to a legitimate governmental interest. He noted that since 1971 the legislature has taken incremental steps to pass laws beneficial to and protective of gay and lesbian persons. In his view, it was rational to take a step-by-step approach. He also pointed out that the sponsors of the 2007 gay marriage bill had stated that it would pass within a year or two (id., at 320-321)).

ZARELLA'S DISSENT

Justice Zarella's dissent was based on the procreative aspect of traditional marriage. In his view, the purpose of marriage is to privilege and regulate sexual conduct that may result in the birth of a child. He asserted that heterosexual and same-sex couples are not similarly situated – and therefore, the plaintiffs could not pursue a claim under the Equal Protection Clause – because only the former could have children who were biologically related to both parents (id., at 324-337).

Zarella also rejected the plaintiffs' argument that they have a fundamental right to marry. Agreeing with the reasoning of Justice Borden's dissent on this issue, he concluded that the fundamental right to marry applies only to unions of one man and one woman. He stated:

…[A]lthough the deeply rooted and rationally based cultural preference for traditional marriage, and the institution's attendant liberties, rights and privileges, may be subject to change in light of new information and experiences, any such change is emphatically not for this court but is quintessentially a matter to be decided by the people through the democratic process ( id., at 340).

Having found that same-sex couples have no fundamental right to marry, Justice Zarella used the rational basis test to examine the state's marriage laws. He determined that the state's interests in promoting and regulating procreative conduct are legitimate and limiting marriage to opposite sex couples is rationally related to the advancement of those interests. The interests he suggested could have motivated the legislature were that:

1. the power of biological ties means that heterosexual families are most likely to achieve stability and successfully perform the childbearing function;

2. children do best when they are raised by a mother and a father;

3. the benefits and social status associated with traditional marriage encourage men and women to enter into a state of long-term, mutually supported procreation that is conducive to procreation and responsible child rearing on the part of biological parents; and

4. limiting marriage to a man and woman accomplishes vital social goods, while the institution of civil union promotes the legitimate interests of those who enter into it (id., at 341-351).

He rejected the majority's conclusion that redefining marriage to include same-sex couples takes nothing away from the institution. He maintained that such a redefinition (1) could have a significant effect on the number of opposite-sex couples who choose to procreate and raise children together and (2) takes away society's special concern with the institution as one involving the great societal risks and benefits of procreative conduct (id., at 350).

Zarella also took issue with the majority's interpretation of the state's Equal Protection Clause, noting that he had serious doubts as to whether intermediate scrutiny is ever appropriate. He also disagreed with the majority's use and application of the Geisler factors (id., at 351-358).

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