A Review of Same-Sex Marriage Developments In Connecticut

In the widespread coverage of the battle over gay marriage in California, less attention has been given to a decision by the Connecticut Supreme Court last month holding that limiting same-sex couples to civil unions, instead of marriage, violates the equal protection guarantees of the Connecticut state Constitution. An article in this week’s Yale Herald titled Gay Couples Marry as Campus Christians Sit Silent is occasion to look more closely at developments in Connecticut.

In Kerrigan v. Commissioner of Public Health, (CT Sup Ct, Oct. 10, 2008) (majority, dissents 1, 2, 3), the court, in a 4-3 decision, applied intermediate scrutiny to strike down Connecticut's statutory scheme barring same-sex marriage. Opponents then supported a proposal that is automatically on the November ballot every 20 years to call a state constitutional convention. [corrected]. The convention could have potentially proposed a constitutional amendment to overturn the court's decision. However, that proposal was overwhelmingly defeated at the polls earlier this month.

Of particular interest is the analysis by the majority in the Kerrigan case concluding that sexual orientation is a quasi-suspect classification that triggers heightened scrutiny. One part of the test for a quasi-suspect class is its "political powerlessness." As the court explained:

a group satisfies the political powerlessness factor if it demonstrates that, because of the pervasive and sustained nature of the discrimination that its members have suffered, there is a risk that that discrimination will not be rectified, sooner rather than later, merely by resort to the democratic process.

Interestingly, the court then went on to, in part, rely on the strong religious opposition to homosexual activity as evidence of the political powerlessness of gays and lesbians. The court said:

Feelings and beliefs predicated on such profound religious and moral principles are likely to be enduring, and persons and groups adhering to those views undoubtedly will continue to exert influence over public policy makers.

The court then added in a footnote (fn. 37):

Of course we do not suggest that there is anything untoward or improper about such efforts to mold public policy or opinion, for such activity lies at the core of our democratic system. Nor do we equate religious beliefs with prejudice. Our point is simply that gay persons face steep, if not insurmountable, hurdles in changing or even modifying deeply held beliefs that their manner of sexual intimacy is morally unacceptable.