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Now There Are Three: Connecticut Court Validates Gay Marriage

By L.K. Regan

Same-sex couples won another important legal battle late last week as the Connecticut State Supreme Court ruled unconstitutional the state's ban on gay marriages. The ruling paved the way for same-sex weddings to begin in the state on October 28, 2008. With this ruling, Connecticut joins Massachusetts and (at least for the moment) California as one of only three states with fully legal same-sex marriages.

Four years ago, eight same-sex couples sued the state of Connecticut on the grounds that the state's refusal to issue them marriage licenses constituted a violation of the equal protection and due process clauses of the state constitution, relative to the rights afforded to heterosexual couples. The interesting twist: Since 2005, Connecticut has legally recognized same-sex civil unions. But, civil unions are not recognized outside of the state in which they are formed—that is, by the federal government. As a result, they do not carry the full protection of the law. The plaintiffs in the Connecticut case sued, however, under the state constitution rather than the federal one. As a result, the court's ruling cannot be appealed to the U.S. Supreme Court, which has jurisdiction only over cases relating to the U.S. Constitution.

Justice Richard Palmer, writing for the court's four-to-three majority opinion, argued that, "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 do otherwise, he said, "would require us to apply one set of constitutional principles to gay persons and another to all others." In addressing the comparison between marriage and civil unions, the majority opinion forcefully states, "Although marriage and civil unions do embody the same legal rights under our law, they are by no means 'equal.' As we have explained, the former is an institution of transcendent historical, cultural and social significance, whereas the latter most surely is not."

The fate of gay marriage from state to state is, of course, heavily contested. In California, where the State Supreme Court overturned a lower court ruling to legalize same-sex marriage in June of this year, a ballot measure to amend the state constitution, and therefore override that decision, is on the November ballot. Current polling has that measure narrowly passing, though the numbers have been in flux over the last few weeks. Massachusetts has had legal same-sex marriages since 2004, but the federal government still refuses to recognize these unions, meaning that, from the point of view of Social Security, Medicare, and hundreds of other rights, gay marriage is still not equal under the law. Next year, state legislatures in Vermont, New York, Maryland, and Rhode Island are likely to consider gay marriage bills; what is still unknown is at what point the federal government will be forced to take note of the rising tide of same-sex marriages recognized in multiple states.

Right-wing activists greeted the Connecticut court decision with predictable horror. "This is a tragic day for our state's children," said Brian Brown of the Family Institute of Connecticut. But, as the Connecticut Supreme Court's decision quite rightly notes, denying the right to marry to same-sex couples is the same as requiring them to change their identities in order to participate in the rights granted by marriage. As the majority opinion says, "Gay persons have been subjected to and stigmatized by a long history of purposeful and invidious discrimination that continues to manifest itself in society. The characteristic that defines the members of this group—attraction to persons of the same sex—bears no logical relationship to their ability to perform in society, either in familial relations or otherwise as productive citizens. Because sexual orientation is such an essential component of personhood, even if there is some possibility that a person's sexual preference can be altered, it would be wholly unacceptable for the state to require anyone to do so."

Well said, Your Honors.