- The Washington Times - Monday, November 3, 2008

On Oct. 10, the Connecticut Supreme Court released its ruling in Kerrigan & Mock v. Connecticut De-

partment of Public Health, which legalized gay marriage in that state. The 4-3 ruling made Connecticut the third state - after Massachusetts in 2003 and California* in 2008 - to allow same-sex couples to marry. The Connecticut ruling is the first to override a state legislature’s civil union law.

Below are highlights of the majority ruling, written by Associate Justice Richard N. Palmer and joined by Associate Justice Flemming L. Norcott Jr., Associate Justice Joette Katz and Appellate Court Judge Lubbie Harper Jr.**

“The issue … is whether the state statutory prohibition against same-sex marriage violates the constitution of Connecticut.”

Yes. “In accordance with … state constitutional requirements, same-sex couples cannot be denied the freedom to marry.”

No, it is not one of the “eight enumerated classes” that receive heightened protection.

However, “we previously have observed that although the framers’ failure expressly to include a particular group … is a relevant consideration in determining whether that group is entitled to special protection, it is not dispositive of the issue.”

“[W]e conclude that gay persons meet each of the four factors identified by the United States Supreme Court for determining whether a group is entitled to heightened judicial scrutiny as a quasi-suspect class. …

“Furthermore, we are mindful that state [c]onstitutional provisions must be interpreted within the context of the times. …”

“Interpreting our state constitutional provisions in accordance with firmly established equal-protection principles leads inevitably to the conclusion that gay persons are entitled to marry the otherwise-qualified same-sex partner of their choice. To decide otherwise would require us to apply one set of constitutional principles to gay persons and another to all others. The guarantee of equal protection under the law … forbids us from doing so.”

“Despite the truly laudable effort of the legislature in equalizing the legal rights afforded same-sex and opposite-sex couples, there is no doubt that civil unions enjoy a lesser status in our society than marriage. … Accordingly, we reject the … conclusion that marriage and civil unions are ‘separate’ but ‘equal’ legal entities.”

“It is true that the plaintiffs differ” from others “insofar as each of the plaintiffs seeks to marry a person of the same sex. Otherwise, the plaintiffs can meet the same statutory eligibility requirements … such as age and consanguinity.

“The plaintiffs also share the same interest in a committed and loving relationship [as heterosexuals], and they share the same interest in having a family and raising their children in a loving and supportive environment.

“In light of the multitude of characteristics that same-sex and opposite-couples have in common, we conclude that the two groups are similarly situated” for purposes of challenging the state’s civil union law.

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Below are highlights of dissenting opinions written by Senior Associate Justice David M. Borden, Associate Justice Peter T. Zarella and Associate Justice Christine S. Vertefeuille.

“The majority’s determination that civil union status is a second class or inferior status is not … an established fact … but an issue of fact that has not yet been resolved in the present case. … I also note that this court is constitutionally prohibited from finding facts.”

Moreover, “our experience with civil unions is simply too new and the views of the people of our state about it as a social institution are too much in flux to say with any certitude that the marriage statute must be struck down … to vindicate the plaintiffs’ constitutional rights.”

No. “Sexual orientation does not constitute either a quasi-suspect or suspect classification under our state constitution, and … our marriage and civil union statutes satisfy the state constitution when analyzed under the traditional rational basis test.”

Because of the “strong presumption” that lawmakers craft laws that are constitutional, “those who challenge its constitutionality must sustain the heavy burden of proving its unconstitutionality beyond a reasonable doubt. … Our jurisprudence thus requires the highest possible standard of proof in order to sustain a challenge to the constitutionality of a statute validly enacted by our legislature.”

No. “It is an extreme act of judicial power to declare a statute unconstitutional. … That principle applies with even more force when the judicial act of invalidation constitutes the alteration of a fundamental social institution such as marriage.”

If marriage is to be changed, “it is appropriate that it be done by the democratic process, rather than by judicial fiat.”

*A vote in California on Tuesday on Proposition 8 will uphold or overturn the court’s gay marriage ruling.

**Judge Harper replaced Connecticut Supreme Court Chief Justice Chase T. Rogers after she recused herself from the case.

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