Gay Couples Demand Marriage

Take Their Appeal To State High Court

November 22, 2006
By LYNNE TUOHY, Courant Staff Writer

Lawyers for eight same-sex couples seeking the right to marry will file their brief in the state Supreme Court today, setting the stage for an epochal legal battle on whether Connecticut permits gay marriage.

Since the couples launched their lawsuit in August 2004, the state has passed a law permitting same-sex couples to form civil unions, which bestow virtually the same legal rights that come with marriage.

The couples not only say civil unions are not enough, but also use the General Assembly's adoption of civil unions as fodder in their constitutional challenge.

The essence of the appeal is encompassed by a rhetorical question in the brief, a draft of which The Courant obtained Tuesday:

"Given the legislature's enactment of the civil union law after this case was filed, and its acknowledgement of both the common humanity of gay people and their rights to equal treatment in their family lives, is it constitutional for the legislature to deny marriage while it also creates, only for gay people, a separate legal regime, with a different name, and deems them eligible for all state-based rights available to married spouses?"

The couples - who are from eight different communities and range in age from their 30s to their 60s - claim that the state's refusal to issue marriage licenses to same-sex couples violates state constitutional guarantees of equal protection under the law and freedom of association.

Because the appeal is rooted in provisions of the state constitution, rather than the U.S. Constitution, the Connecticut Supreme Court's ruling is likely to be the final word on the legal front. But the decision will not put the political issue to rest.

The Massachusetts Supreme Court in 2003 ruled that that state's constitution guarantees same-sex couples the right to marry. In response, more than 170,000 citizens petitioned for a constitutional amendment to ban gay marriage. Massachusetts legislators on Nov. 9 recessed without voting on whether to put the measure on the 2008 ballot.

Connecticut Attorney General Richard Blumenthal, representing the state Department of Public Health, has at least a month to respond to the Supreme Court brief filed on behalf of the eight couples. The case is not expected to be argued until next spring.

Attorney Bennett Klein of Boston-based GLAD - Gay and Lesbian Advocates and Defenders - represents the Connecticut couples. He said Tuesday that civil unions and marriage are not equal under the constitution.

"Marriage is not simply a collection of legal rights," Klein said. "It is something that has a unique meaning in our society. The unique social meaning of marriage gives it a very profound personal value for couples that civil unions can never provide."

The brief details the "harsh, systematic discrimination" against gay people over the past century, including job discrimination and laws that, until 1961, in every state banned sexual relationships between same-sex couples. Connecticut continued to do so until 1969.

It also traces Connecticut's recent political evolution toward equal protection of gay people, from the 1991 passage of an act barring discrimination based on sexual orientation and acts in 2000 to criminalize acts of bias and bigotry and smooth the adoption process for same-sex parents.

In 2005, the legislature's judiciary committee replaced an act that would have guaranteed marriage equality with one permitting civil unions instead.

The same-sex couples contend that the legislature "blinked" when it approved civil unions instead of marriage equality.

"Rather than completely embrace that lesbian and gay citizens are part of a community of equals, it marked those families as different from all others," Klein wrote. "And it politically compromised on the principles it came so close to embracing fully for reasons that are not even valid - personal beliefs, fear of constituent reaction and the bare desire to separate."

Klein said opening marriage to same-sex couples does not intrude on religious freedom.

"Marriage is a government-created institution," Klein said Tuesday. "It's a state institution that is wholly separate from the rights of religious denominations to choose whom they will marry."

In March of this year, Superior Court Judge Patty Jenkins Pittman summarily dismissed the couples' lawsuit, saying passage of the civil union law gave them the equality they sought. She did not perform a constitutional analysis of their claims, though, giving the Supreme Court a clean slate on which to undertake its own analysis.

In the Nov. 7 election, seven states approved bans on gay marriage, bringing the number of states with such bans to 27.

The couples' brief in the Connecticut case concludes by hailing the tradition of the state's highest court of not abdicating its obligation to do justice, even in the face of resistance to change. It cites the 1882 ruling that made Connecticut the first state to end the ban on women becoming lawyers.

"Today, this court should rule that the Connecticut Constitution cannot tolerate the arbitrary separation of lesbian and gay citizens from other citizens," Klein wrote.