Victory in Connecticut!

On Friday, October 10, 2008, the Connecticut Supreme Court issued an analytically rich, eloquent, intricate, and detailed opinion (Kerrigan v. Commissioner of Public Health, Docket No. SC17716) holding that the prohibition of gay marriage violates the equal protection provisions of the state constitution. It should be noted at the outset that this court interpreted the state constitution, not the US Constitution; this is crucial, insofar as a state supreme court opinion resting entirely on state constitutional considerations may not be reviewed or reversed by the US Supreme Court (this is a well established principle of our judicial federalism).

What follows is a detailed analysis of the state high court decision, rendering this post lengthy and somewhat technical.

In reaching the conclusion that the prohibition of gay marriage violated the equal protection clause, the state supreme court held that gay men and lesbians constitute a "quasi-suspect class" for the purposes of equal protection analysis. The court followed principles outlined in a landmark case (State v. Geisler, 222 Con. 672, 685, 610 A.2d 1225 (1992)) to construe the contours of the state constitution, examining 1) the text of the constitutional provisions at issue, 2) holdings and dicta of the State Supreme Court and of the Appellate Court, 3) persuasive and relevant federal precedent, 4) persuasive and relevant sister state court decisions, 5) the history of the operative constitutional provisions, including debates of the framers, and 6) contemporary economic and sociological considerations.

The term “suspect class” is employed by jurists to describe classes of persons entitled to a heightened level of protection when challenging a statute (or other form of legislative enactment) or executive policy on constitutional grounds. The Fourteenth Amendment was one of three Amendments enacted in the wake of the Civil War; this Amendment was crafted shortly after the Civil War ended. Section 1 of the Fourteenth Amendment includes three Clauses: the Due Process Clause, the Equal Protection Clause, and the Privileges or Immunities Clause. The Equal Protection Clause mandates that no state “shall deny to any person within its jurisdiction the equal protection of the laws.” The framers of the Equal Protection Clause wished to stamp out the invidious forms of racial discrimination that remained following the abolition of slavery; this context must be considered when adjudicating challenges to legislation on equal protection grounds. The Connecticut state constitution contains a similar guarantee, codified at article first, Section 1 (“All men when they form a social compact, are equal in rights; and no man or set of men are entitled to exclusive public emoluments or privileges from the community.”) and at article first, Section 20 (as amended by article 5 and article 21) (“No person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his or her civil or political rights because of religion, race, color, ancestry, national origin, sex or physical or mental disability.”).

In federal constitutional jurisprudence, the gravamen of an equal protection challenge almost always lies in the assertion that two groups of people who are similarly situated in relation to the challenged legislation are treated differently, with resultant adverse impact to members of one of the groups in question (see Heller v. Doe, 509 U.S. 312 (1993)). In the majority of cases dealing with social and economic legislation, the federal courts apply the “rational basis” standard of review. With the exception of statutes that infringe on “fundamental” constitutional rights, and statutes that create “suspect” or “quasi-suspect” classifications, statutes generally enjoy the presumption of constitutionality (a statute is presumed to be constitutional until it is proved to be unconstitutional beyond a reasonable doubt (State v. McKenzie-Adams, 281 Con. 486, 500, 915 A.2d 822 (2007))). The rational basis standard of review is consistent with the presumption of constitutionality. When this standard is applied, the burden falls squarely on the plaintiff, who must demonstrate that the statute in question is not rationally related to a legitimate state interest. This standard of review has been referred to as a “paradigm of judicial restraint” (see FCC v. Beach Communications, Inc., 508 U.S. 307 (1993)) due to its highly deferential nature. Provided the state can posit a rational relationship to a legitimate state interest, the statute will be sustained in the face of constitutional attack. The reviewing court can reach out, independently, and posit even post hoc justifications for the challenged statute.

This standard of review is not completely toothless, however. In City of Cleburne, Texas v. Cleburne Living Ctr., Inc.., 473 U.S. 432 (1985), the Court struck down the City Council’s refusal to issue a “special use” permit to a home for mentally retarded, holding that there was no rational basis for requiring this permit, and noting that the City Council’s requirement of a “special use” permit appeared to rest on “irrational prejudice” against the mentally retarded.

In United States Dept. of Agriculture v. Moreno, 413 U.S. 528 (1973), the Court struck down a prohibition against granting food stamps to any household containing an individual who is unrelated to any other household member (this measure was intended to discourage "hippies" from forming communal living relationships). In this decision, the Court held that “a bare…desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.”

In Romer v. Evans, 517 U.S. 620 (1996), the US Supreme Court struck down an amendment (“Amendment 2”) to the Colorado state constitution that “fenced out” gay men and lesbians, and withdrew from this class of persons, and this class of persons alone, the right to petition the state legislature for redress of grievances (Amendment 2 repealed existing anti-discrimination ordinances to the extent that they protected gay people from discrimination at the hands of heterosexual people, and forbad the future enactment of any such measures). Although the Court employed language typically associated with traditional rational basis review, a three-judge panel of the US Court of Appeals for the Ninth Circuit recently noted that the Court appeared to have applied a much higher standard of review (see Witt v. Department of the Air Force, 527 F.3d 806, 828 (9th Cir. 2008), May 21, 2008). Several prominent jurists have made the same observation. Regardless of the level of scrutiny actually employed, the Romer Court cited Moreno with approval, holding that Amendment 2 was so broad in its scope as to give rise, inevitably, to the inference that this measure was intended to reflect “animus” towards gay persons. The Court reiterated its holding that a bare desire to inflict harm upon members of a politically unpopular group can never constitute a legitimate state interest, striking down Amendment 2 in a 6 -- 3 opinion that was laced with strong and stark language.

The Connecticut Supreme Court first determined, as a matter of law, that “civil unions” (which were created by the state legislature in 2005) are not the legal equivalent of marriages, holding that this statutory arrangement singled out gay relationships and implicitly relegated them to an inferior status, “in essence, declaring them to be unworthy of the institution of marriage.” Gay activists have repeatedly maintained that this is indeed so – while civil unions may grant to gay couples all of the substantive benefits and protections of heterosexual marriage, “the message [sent by the legislature] is that what same-sex couples have is not as important as or as significant as “real” marriage, that such lesser relationships cannot have the name of marriage.” The court agreed with the plaintiffs that “[m]aintaining a second-class citizen status for same-sex couples by excluding them from the institution of civil marriage is the constitutional infirmity at issue.” The court compared civil unions to the “separate but equal” doctrine that animated the education of black versus white schoolchildren prior to the US Supreme Court’s landmark decision in Brown v. Board of Education of Topeka, 347 U.S. 483 (1954), and rejected the contention that civil unions are the constitutional equivalent of marriage (whilst recognizing the “truly laudable” efforts of the state legislature to grant gay couples the substantive rights of marriage).

The court then articulated a precept that is fundamental to our system of judicial federalism – that it is “beyond debate that federal constitutional law...establishes a minimum national standard for the exercise of individual rights and does not inhibit state governments from affording higher levels of protection for such rights.” [emphasis added]. In short, the US Constitution sets a floor, but not a ceiling, to the exercise of individual rights; many state constitutions are more generous, either by their terms or as construed by state high courts, than is the US Constitution in terms of affording their respective citizens the exercise of individual rights. The court referenced several cases in which the Connecticut constitution had been interpreted as being more generous than the US Constitution in terms of granting Connecticut citizens individual rights (e.g., State v. Morales, 232 Conn. 707, 716, 657 A.2d 585 (1995); Ramos v. Vernon, 254 Conn. 799, 827, 761 A.2d 705 (2000)). The court made it clear that in the light of this principle, there may be times when the court will employ the same analytical approach as that adopted by the federal courts, but yield entirely different results. Furthermore, in tones that would cause ultra-conservative jurists such as US Supreme Court Associate Justices Antonin Scalia and Clarence Thomas to suffer from attacks of dyspepsia and apoplexy, the court held that “[it] must interpret the [state] constitution in accordance with the demands of modern society or it will be in constant danger of becoming atrophied and, in fact, may lose its original meaning” [emphasis added] and that the state constitution is “…intended to endure for ages to come…and, consequently, to be adapted to the various crises of human affairs” (cited from McCulloch v. Maryland, 17 U.S. 316 (1819)). The court expanded on this, holding that “the Connecticut constitution is an instrument of progress, it is intended to stand for a great length of time and should not be interpreted too narrowly or too literally so that it fails to have contemporary effectiveness for all of [its] citizens” (cited from State v. Dukes, 209 Conn. 98, 114-15, 547 A.2d 10 (1988)).

The Connecticut Supreme Court first concluded that gay persons in committed relationships who wished to marry are “similarly situated” to heterosexual persons in committed relationships who wished to marry, thereby granting gay persons the requisite standing to mount an equal protection challenge to the prohibition of gay marriages. In a footnote that captured the essence of the constitutional challenge (see footnote 15), the court asserted that “[its members] know that people of the same sex often love one another with the same passion as people of different sexes do and that they want as much as heterosexuals to have the benefits and experience of the married state. If we allow a heterosexual couple access to that wonderful resource but deny it to a homosexual couple, we make it possible for one pair but not the other to realize what they both believe to be an important value in their lives” (cited from R. Dworkin, “Three Questions for America,” N.Y. Review of Books, September 21, 2006, pp. 24, 30).

Having established that gay couples may mount a cognizable equal protection challenge to the prohibition of gay marriages, the court discussed the standard of review that should be applied to the challenged legislation. As mentioned above, statutes that neither burden a “fundamental” constitutional right nor draw “suspect” classifications will be sustained, provided the state (or the reviewing court) posits a legitimate state interest and provided the legislation in question is rationally related to the promotion of that interest. However, any statute that draws a “suspect” or "quasi-suspect" classification, or that infringes a “fundamental” right, will be subjected to “strict scrutiny.”

Strict scrutiny is a much more searching level of judicial review than rational basis review. When a reviewing court subjects challenged legislation to strict scrutiny, the presumption of constitutionality ceases to exist; in fact, the statute in question is presumed to be unconstitutional until and unless the state proves, beyond a reasonable doubt, that the legislation in question is not unconstitutional. The burden shifts from the plaintiff to the state, which has to prove that the statute in question promotes a “compelling state interest,” and that the statute in question is “narrowly tailored” so as to promote that interest in the least restrictive manner possible (insofar as the statute burdens the suspect class or infringes on a fundamental right). That is to say, the statute in question must promote a compelling state interest, and must sweep no more broadly than is absolutely necessary to promote that compelling state interest. This standard of review stands in stark contrast to the deferential rational basis standard, and it is therefore crucial to limit application of this standard to those circumstances which are consonant with the intent of the framers of the respective constitutions. Some constitutional scholars take an extreme position, and argue that this standard of review should only be applied (in equal protection challenges) when the legislation creates a racial classification. While this position is consistent with the observation that the Equal Protection Clause of the Fourteenth Amendment was framed in the immediate aftermath of the Civil War, it should always be kept in mind that the framers of this Clause made it clear that they intended this Clause to afford protection to other minorities too. Furthermore, the text of the Equal Protection Clause contains no limitations; this Clause affords the equal protection of the laws to all persons (no state “shall deny to any person within its jurisdiction the equal protection of the laws” [emphasis added]).

The US Supreme Court has recognized three suspect classifications – race, national origin, and alienage (Heller, supra). It is important to note that the manner in which equal protection challenges are adjudicated (including the standards of review that are applicable) is not prescribed by the US Constitution, and that the US Constitution does not specifically identify suspect classifications or suspect classes (a suspect class is the class drawn by a suspect classification). The Connecticut constitution, on the other hand, identifies eight inherently suspect classifications set forth in article first, Section 20 (as amended) (religion, race, color, ancestry, national origin, sex, physical disability, and mental disability). Because members of these classes have been deemed to be “especially subject to discrimination,” their rights “are protected by requiring encroachment on [those] rights to pass a strict scrutiny test.”

In addition to the rational basis standard and the strict scrutiny standard, the US Supreme Court has recognized the existence of an intermediate level of scrutiny that lies between the extremes of rational basis review and strict scrutiny (see Clark v. Jeter, 486 U.S. 456 (1988)). This standard of review, referred to as “quasi-strict scrutiny” or “intermediate level scrutiny,” has been reserved by the US Supreme Court for classifications on the basis of sex and classifications on the basis of illegitimacy. Such classifications are referred to as “quasi-suspect” classifications. Such classifications may be sustained only if the state demonstrates that the challenged legislation promotes an important state interest and is substantially related to the promotion of that interest (see Frontiero v. Richardson, 411 U.S. 677 (1973)). More recently, the US Supreme Court reformulated this standard of review by holding that, in the context of gender discrimination, the classification may only be sustained in the face of an “exceedingly persuasive justification” (see United States v. Virginia, 518 U.S. 515 (1996)). The Court further held that the justification in question “must be genuine, not hypothesized or invented post hoc in response to litigation…and it must not rely upon overbroad generalizations about the different talents, capacities, or preferences of males and females.” Under quasi-strict scrutiny, the burden again falls on the state to demonstrate that the legislation in question meets these criteria.

The state argued that because article first, section 20 (as amended) of the state constitution expressly prohibits discrimination against eight enumerated classes, and because sexual orientation is not one of the eight enumerated classes, no other group is entitled to heightened protection under the equal protection provisions of the state constitution. The court rejected this assertion, because it is inconsistent with case law in which the court has expressed approval of the three-tiered methodology traditionally employed for the purposes of the equal protection provisions of the state constitution (e.g., Carofano v. Bridgeport, 196 Conn. 623, 495 A.2d 1011 (1985); Keogh v. Bridgeport, 187 Conn. 53, 66-67, 444 A.2d 225 (1982)). The court also held that, although the omission of sexual orientation from the list of classifications enumerated by article first, section 20 (as amended) is a relevant consideration, it is not dispositive of the issue. The court reflected on the history surrounding the adoption of this section of the state constitution, noting that its drafters intended that provision to embody “the very strongest human rights principle that this convention can put forth to the people of Connecticut,” and concluding that, in accordance with that purpose, that provision should be read expansively. The court emphatically rejected the proposition that the language of the constitution limited new rights, noting that “rights of individuals have developed and have changed from time to time” (citing from remarks of former US Representative Chase Going Woodhouse). The court also asserted that, even if it were to assume, arguendo, that the groups enumerated in article first, section 20 (as amended) were intended to constitute an exhaustive list of suspect classes, the plaintiffs would not be barred from recognition as a quasi-suspect class, because these two classes are distinct and separate from one another. Of great significance was the observation that, under the state’s view, “only those classes that have marshalled the political will and popular support to secure a constitutional amendment in their favor” would be recognized as a suspect class – a result totally inconsistent with the rationale underlying both state and federal equal protection considerations.

The court then turned to an examination of the criteria that must be considered in determining whether recognition as a quasi-suspect class is warranted. The court noted that the US Supreme Court has consistently identified two factors that must be met, for the purpose of the federal constitution, in determining whether recognition as a quasi-suspect class is warranted. These factors are 1) the group has suffered a history of invidious discrimination, and 2) the characteristics that distinguish the group’s members must bear “no relation to their ability to perform or contribute to society” (see United States v. Virginia, supra; Frontiero v. Richardson, supra; Massachusetts Board of Retirement v. Murgia, 427 U.S. 327 (1976)). The US Supreme Court has also cited two other factors that may, on a case by case basis, be relevant to determining whether statutory provisions pertaining to a particular group are subject to heightened scrutiny. These additional two considerations are 1) the characteristic that defines the members of the class as a discrete group must be immutable or otherwise not within their control; and 2) the group is a minority, or is politically powerless (see Lyng v. Castillo, 477 U.S. 635 (1986); Bowen v. Gilliard, 483 U.S. 587 (1987)).

The state court noted that both state and federal courts have generally applied the same criteria to determine whether a classification is suspect, quasi-suspect, or neither. The court concluded that the factors that determine whether a group should be accorded heightened scrutiny under the federal constitution closely correlate with the factors that determine whether a group should be accorded heightened scrutiny for the purposes of the state constitution. The court noted that the US Supreme Court has placed far greater weight on the first two factors (a history of discrimination based on a characteristic that bears no relation to the ability of members of the group to contribute to society) than on the remaining two factors. For this reason, classifications on the basis of race and sex have been accorded strict scrutiny and quasi-strict scrutiny respectively, whereas classifications on the basis of age and disability have not been accorded heightened scrutiny (the latter characteristics frequently bear upon the ability of members of the class to contribute to society). The US Supreme Court has granted suspect class status to a group whose distinguishing characteristic is not immutable (resident aliens can become citizens, but are nevertheless considered to be a suspect class (see Nyquist v. Mauclet, 432 U.S. 1 (1977))), as well as to a group that is not a minority (women are actually a numerical majority in the US, but are nevertheless considered to be a quasi-suspect class). In addition, political power is not a characteristic that lends itself readily to objective assessment, making it extremely difficult for appellate courts generally to determine the extent of the political power of a group.

The court held that the test of whether a group deserves suspect class status is too exacting to test whether a group deserves quasi-suspect class status; the factors that are weighed when determining whether a group should be accorded suspect class status should not be weighted to the same extent when determining whether a group should be accorded quasi-suspect class status. Nevertheless, the factors are similar in both instances.

The court then turned to a crucial threshold examination – whether, as a matter of law, gay persons should be considered to be members of a quasi-suspect class. The court noted that “[g]ay persons have been subjected to and stigmatized by a long history of purposeful and invidious discrimination that continues to manifest itself in society.” The court also noted that “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.” Turning to the issue of immutability, the court held that “[b]ecause 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.” The court noted that gay people are certainly a minority, and that gay people have suffered “the enduring effects of centuries of legally sanctioned discrimination.” On this basis, the court held that laws singling gay people out for disparate treatment should be subjected to heightened judicial scrutiny.

The court employed strong language and citations from numerous sources to make the point that gay persons have been tormented, abused, terrorized, and grossly mistreated, both by fellow citizens and by the state itself, agreeing with the assertion that “[o]utside of racial and religious minorities, we can think of no group that has suffered such pernicious and sustained hostility…as homosexuals” (cited from in re Marriage Cases, 43 Cal. 4th 841 (2008)). Significantly, the court adduced Bowers v. Hardwick, 478 U.S. 186 (1986) as an example of pernicious and invasive hostility directed towards gay persons less than 25 years ago by no less an entity than the US Supreme Court. Referring to the existence of sodomy statutes in 25 states at the time that Bowers was handed down, and 14 states by the time Bowers was expressly overruled by Lawrence v. Texas, 539 U.S. 558 (2003), the court held that it was beyond cavil that gay persons, as a group, met the requirement of a lengthy history of past (and ongoing) discrimination. Significantly, the state made no effort to rebut this assertion, agreeing with it from the outset.

The state also agreed with the assertion that being gay in no way impairs the ability of individuals to contribute to society – an assertion vehemently protested by organizations such as the “American Family Association” (AFA) and the “Family Research Council” (FRC). The court again cited from numerous sources to make the point that gay persons are able to perform in, participate in, and contribute to society on the same terms as heterosexuals. Observing that the suspect classes of race, national origin, and alienage “are so seldom relevant to the achievement of any state interest that laws grounded on such considerations are deemed to reflect prejudice and antipathy,” the court held that this observation is no less applicable to gay persons.

The court regarded as “highly significant” a number of important public policy considerations that treat gay persons similarly to heterosexual persons. For example, both gay and heterosexual persons are deemed to be capable of raising children, and may adopt children on the same terms. Discrimination on the basis of sexual orientation in employment, housing, state hiring practices, state licensing practices, the administration of state educational and vocational programs, state-administered benefit programs, and access to places of public accommodations is prohibited by state law. This reinforces the contention that gay persons are as capable of contributing to society as are heterosexual persons.

The court then addressed the issue of whether sexual orientation is an “immutable” characteristic, and concluded that other courts in other jurisdictions had reached contrary conclusions with respect to this issue. The Connecticut Supreme Court concluded that sexual orientation is highly resistant to change, but further held that it was unnecessary to determine whether sexual orientation is an immutable characteristic to the same extent and degree that race, national origin, and gender are immutable characteristics, because even if sexual orientation is not immutable, the plaintiffs had established that they satisfied this consideration. The US Supreme Court has recognized that, because “the protected right of homosexual adults to engage in intimate, sexual conduct…[represents] an integral part of human freedom” (Lawrence, supra at pp. 576-7) [emphasis added], individual decisions by consenting adults concerning the intricacies of their physical relationships are entitled to constitutional protection. The court observed that sexual orientation is central to personality and is an integral part of one’s identity, rendering it entirely inappropriate to require a person to change, or repudiate, his or her sexual orientation in order to avoid discriminatory treatment. More specifically, the court held that gay persons are characterized by a “central, defining trait of personhood, which may be altered [if at all] only at the expense of significant damage to the individual’s sense of self” (cited from Jantz v. Muci, 759 F.Sup. 1543, 1548 (D. Kan. 1991)) (holding that “to discriminate against individuals who accept their given sexual orientation and refuse to alter that orientation to conform to societal norms does significant violence to a central and defining character of those individuals.”). Under this rubric, gay persons are no less entitled to consideration as a suspect or quasi-suspect class than any other group that has been deemed to exhibit an immutable characteristic.

Continuing the inquiry (whether or not gay persons comprise a quasi-suspect or suspect class), the court examined the relative political power of gay persons, noting that a lack of political power is one of the indicia traditionally associated with members of suspect or quasi-suspect classes. In cases involving groups seeking heightened protection under the federal Equal Protection Clause, the US Supreme Court described this factor without reference to the minority status of the subject group, focusing instead on the group’s lack of political power (see, e.g., Massachusetts Board of Retirement v. Murgia, supra). In its most recent formulation of this test, the US Supreme Court has indicated that this factor is satisfied upon a showing either that the group is a minority or that it lacks political power (see Bowen v. Gilliard, supra). This test involves a determination of whether the group in question is a “discrete and insular minority,” (United States v. Carolene Products Co., 304 U.S. 144 (1938)) or, if it is not a numerical minority, whether the group nonetheless is lacking in political power (see, e.g., Frontiero, supra, holding that women are a quasi-suspect class, notwithstanding the fact that women are not a minority).

Gay persons unquestionably comprise a distinct minority of the population. Consequently, they satisfy the first prong of this disjunctive test and may thus be deemed to satisfy this prong of the suspectness inquiry on that basis alone. Ironically, opponents of granting equal rights to gay persons (in spheres as diverse as marriage equality, employment non-discrimination, and equal access to enrolment in the armed forces) frequently draw attention to studies that purport to show that gay persons comprise a ridiculously small minority (figures of less than one percent have been circulated by opponents of gay equality in an effort to marginalize the gay community and to portray the gay community as extremely small); in so doing, these opponents actually lend support to the classification of gay persons as a quasi-suspect or suspect class.

The state argued that gay people should not be accorded suspect or quasi-suspect class status because they are not politically powerless. Because other courts have applied this component of the suspectness inquiry to deny gay persons heightened protection, despite the fact that they represent a minority of the population, the state supreme court considered this argument.

The US Supreme Court has never defined “political powerlessness” as it is used in this context; in most cases, the US Supreme Court has merely made passing reference to this factor without actually analyzing it (see, e.g., Bowen v. Gilliard, supra). This factor has been described as “ill-defined” because of the lack of objective criteria and the reality that the extent to which a group lacks political power is not easy to ascertain.

The state court looked to the US Supreme Courts quasi-suspectness jurisprudence for guidance. In Frontiero, supra, the US Supreme Court noted that sex is an immutable characteristic that frequently bears no relationship to ability to perform or contribute to society. Although significant advances had been made towards gender equality, “women still faced pervasive, although at times more subtle, discrimination in our educational institutions, in the job market, and perhaps most conspicuously, in the political arena” (Id., 686). The Court noted that Title VII of the Civil Rights Act of 1964 prohibited employers, labor unions, etc. from discriminating on the basis of sex, race, color, religion, or national origin. The Equal Pay Act of 1963 similarly provided that employers may not discriminate between employees on the basis of sex. Furthermore, section 1 of the Equal Rights Amendment (ERA), passed by Congress on March 22, 1972, and submitted to the state legislatures for ratification, declared that “equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” The Frontiero Court held that, “when viewed in the abstract, women do not constitute a small and powerless minority.” Nevertheless, women were “vastly underrepresented in this nation’s decisionmaking councils.” Although women reasonably could not be described as politically powerless in the literal sense of that term, the court nevertheless concluded that women were entitled to enhanced judicial protection because the discrimination to which they had been historically been subjected was irrational and unlikely to be eliminated solely by the enactment of remedial legislation. Thus, heightened scrutiny of sex-based classifications was warranted because such classifications “are so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy and because such discrimination is unlikely to be soon rectified by legislative means” (emphasis added) (Cleburne, supra).

The state court noted that women continued to make significant political progress in the years following the US Supreme Court’s decision in Frontiero. Nevertheless, the contemporary US Supreme Court continues to apply heightened scrutiny to statutory classifications based on sex. Similarly, although racial and ethnic minorities have made significant political gains since they were first accorded treatment as a suspect class, courts continue to apply strict scrutiny to statutes that classify on such bases (e.g., Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. ___ (2007)). Classifications based on race or on sex do not become any less suspect or quasi-suspect, respectively, once extensive legislation has been passed on the subjects. The Connecticut Supreme Court cited from Chief Judge Judith Kaye’s brilliant dissent in Hernandez v. Robles, 7 N.Y.3d 388—89 (2006), in which she noted that “[s]uch measures acknowledge – rather than mark the end of – a history of purposeful discrimination...”

The political powerlessness aspect of the suspectness or quasi-suspectness inquiry does not require a showing that the group seeking recognition as a protected class is, in fact, entirely without political power. Women today have much more political power than was the case in 1972, yet they continue to receive heightened protection under the Equal Protection Clause of the Fourteenth Amendment. The Connecticut Supreme Court held that the term “political powerlessness” is clearly a misnomer – this facet of the suspectness inquiry is applied not to ascertain whether a group that has suffered invidious discrimination borne of prejudice or bigotry is devoid of political power, but rather to ascertain whether the group lacks sufficient political strength to bring about a prompt end to the prejudice and discrimination through traditional political means. Thus, a group satisfied the political powerlessness factor if it demonstrates that, because of the pervasive and sustained discrimination that its members have suffered, there is a risk that the discrimination will not be rectified, sooner rather than later, merely by invoking the political process. The state court applied this standard to gay persons, and readily concluded that gay persons are entitled to heightened protection despite some recent political progress.

The state court noted that gay people have been the target of particularly vicious, long standing, and deeply rooted prejudice, both statewide and nationwide. The US Supreme Court itself – the entity that is supposed to vindicate the rights of minorities by applying the relevant standards of review – engaged in an act of naked cruelty in Bowers v. Hardwick, supra (permitting the states to criminalize the private, consensual behaviour of gay persons, even in the bedrooms of their own homes; the majority opinion was written in tones of sneering contempt directed towards gay persons). When Bowers was handed down, 25 states had laws on their books that criminalized gay sex, even in private settings between consenting adults; some of these statutes provided for the mandatory incarceration of gay persons for many years. Fortunately, Bowers was directly and bluntly overruled by Lawrence v. Texas, 539 U.S. 558 (2003), in which decision the Court implicitly apologized to gay persons for demeaning the claim put forward by the gay plaintiff in Bowers, acknowledging that “Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.” When Lawrence was handed down, 14 states still criminalized gay sex, even in private settings between consenting adults. Gay persons were deemed to be mentally ill until 1973, when the American Psychiatric Association (APA) officially removed homosexuality from the “Diagnostic and Statistical Manual of Mental Disorders” (DSM). The state court noted that “[i]t is impossible to overestimate the stigma that attaches in such circumstances.” In Lawrence, the US Supreme Court noted that “[w]hen homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.” It should also be borne in mind that three Justices dissented in Lawrence, signing a vitriolic, lengthy, and angry dissent penned by Justice Antonin Scalia. Scalia also wrote the dissent in Romer v. Evans, 517 U.S. 620 (supra); this dissent, in particular, was laced with examples of naked stereotypes, crude generalizations, and rank bigotry. Scalia inveighed against the homosexual “problem” faced by citizens of the State of Colorado, noting that gay persons tended “to reside in disproportionate numbers in certain communities,” where they possessed "political power much greater than their numbers, both locally and statewide." He expressed outrage at the "enormous influence in American media and politics" enjoyed by gay persons, and railed against the fact that gay persons "care about homosexual rights issues much more ardently than the public at large." In essence, Scalia complained about the fact that gay persons availed themselves of the democratic process; he complained about the fact that gay persons actually voted on issues of significance to the gay community. When did it become undesirable, as a matter of civic hygiene, for groups of citizens to vote on issues that impact their welfare? When did willingness to invoke the political process become a distortion of that process, or a danger to that process? Scalia’s analysis in Romer was deeply flawed – in any political system in which persons have the right to vote their policy preferences into law on a “one man, one vote” basis, it is literally impossible for any group to possess “disproportionate” political power. The only circumstance under which one group can exercise what may appear to be “disproportionate” political power is if members of other groups abdicate their own political power (e.g., by not voting). Furthermore, Scalia has never complained that fundamentalist Christians “care about [issues such as mandatory school prayer, outlawing reproductive choice for women, repealing sexual orientation anti-discrimination statutes, etc.] much more ardently than the public at large.” This is a disgraceful form of rank bigotry that has no place in a US Supreme Court decision.

The state court also noted that mainstream religion reflected antipathy towards gay persons, adducing a brief filed by the Becket Fund for Religious Liberty. It is indeed ironic that the groups that call for gay marriage to be prohibited on religious grounds have actually strengthened the case for granting gay persons quasi-suspect class status. Beyond moral disapproval, the court noted that gay people are the target of “virulent homophobia that rests on nothing more than feelings of revulsion toward gay persons and the intimate sexual conduct with which they are associated.” The court adduced the prevalence of hate crimes as another factor militating in favor of granting quasi-suspect class status to gay persons, noting that the hatred and bigotry directed towards gay persons is akin to the type of hatred and bigotry directed towards racial and ethnic minorities, which are accorded suspect class status by the state and federal courts.

The court then noted that no openly gay person has ever been appointed to US Cabinet position or a federal appeals court, or served in the US Senate. Currently, only two openly gay people serve in the US House of Representatives. No openly gay person heads a Fortune 500 company, and it has been estimated that there are only 14 openly gay college and university presidents or chancellors (representing only one half of one percent of such positions nationally). No gay person has been elected to a statewide position in Connecticut, or ever been appointed to the Connecticut Appellate Court or the Connecticut Supreme Court, and only one gay person sits as a judge of the Connecticut Superior Court (the state trial court). Women, by contrast, enjoy much greater representation in positions of power (the state’s current governor, comptroller, and secretary of state are all women, as are the current Chief Justice and two Associate Justices of the state high court). By any standards, gay persons “remain an underclass in our [state and] nation” (cited from Andersen v. King County, 158 Wash.2d 1, 105 n.78, 138 P.3d, 963 (2006). Although the legislature has taken steps to protect gay persons from discrimination, even the state’s anti-discrimination statute contains a disclaimer stating that the statute should not be “deemed or construed 1) to mean the State of Connecticut condones homosexuality or bisexuality or any equivalent lifestyle, 2) to authorize the promotion of homosexuality or bisexuality in educational institutions or require the teaching in educational institutions of homosexuality or bisexuality as an acceptable lifestyle, 3) to authorize or permit the use of numerical goals or quotas…4) to authorize the recognition of or the right of marriage between persons of the same sex, or 5) to establish sexual orientation as a specific and separate cultural classification in society.” As a matter of state policy, gay relationships are thus disfavored (“the purposeful description of homosexuality as a “lifestyle” not condoned by the state stigmatizes gay persons and equates their identity with conduct that is disfavored by the state”). The court also noted the decade of rancorous, failed attempts to pass the non-discrimination statute, and the fact that this statute was only passed after a “compromise” was struck that resulted in, inter alia, this unprecedented disclaimer being included in the statute.

Finally in the suspectness inquiry, the court noted that the US Supreme Court has held that the enactment of anti-discrimination measures prohibiting discrimination on the basis of sex is a factor supporting the conclusion that the subject group (women) is in need of heightened constitutional protection (see Frontiero v. Richardson, supra). Again excerpting from Chief Judge Kaye’s dissent in Robles, the court noted that “[s]uch measures acknowledge – rather than mark the end of – a history of purposeful discrimination” (see Hernandez v. Robles, supra).

The combination of all of these factors led the court to conclude that gay persons in the State of Connecticut currently command less political power than did women in 1973, when Frontiero was handed down, and that gay persons were thus deserving of quasi-suspect classification. The court also remarked that the state had offered no justification for applying a different standard to gay persons under the state constitution than the Frontiero court applied to women under the US Constitution. Again, the court pointed out that the existence of laws prohibiting discrimination on the basis of race and sex has not led the US Supreme Court to withdraw strict scrutiny and quasi-strict scrutiny to laws that classify on these bases, respectively. The court spent considerable time comparing the current status of gay persons with the status of women when Frontiero was handed down; despite the fat that the ERA was considered to be extremely likely to pass, the Frontiero Court nevertheless applied quasi-strict scrutiny to sex-based classifications.

Prior to the handing down of this decision, the Connecticut Supreme Court had never considered whether classifications that discriminate against gay persons are entitled to heightened scrutiny under the equal protection provisions of the state constitution (article first, section 20 (as amended)).

The state correctly asserted that, in the overwhelming majority of cases in which the federal courts have considered this question, these courts have held that mere rational basis review is warranted. However, the court noted that these courts relied primarily on the US Supreme Court’s holding in Bowers v. Hardwick, supra. Although Bowers was a case involving a due process challenge, the lower courts have held, consistently, that because it was constitutionally permissible to punish intimate homosexual conduct, a group that is defined by that conduct cannot constitute a suspect or a quasi-suspect class (e.g., Equality Foundation of Greater Cincinnati, Inc. v. Cincinnati, 54 F.3d, 261, 266 (6th Cir. 1995)). Thus, the impact of Bowers on subsequent equal protection cases was enormous. However, and crucially, Bowers is most emphatically no longer good law; to the contrary, Bowers has been expressly and bluntly overruled (see Lawrence v. Texas, supra), and the US Supreme Court has held that the dissent in Bowers should have been controlling. Furthermore, Bowers was not overruled because of societal changes (which have a major impact in cases implicating the Eighth Amendment’s prohibition of “cruel and unusual” punishment – a concept that “draws its meaning from the evolving standards of decency that mark the progress of a maturing society” (Trop v. Dulles, 356 U.S. 86 (1958))) – it was overruled because the Lawrence Court recognized that Bowers was incorrectly decided at the time that it was decided (“Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled” (Lawrence, supra)). The Court went further, acknowledging in strong language that “[t]he central holding of Bowers has been brought in question by this case, and it should be addressed. Its continuance as precedent demeans the lives of homosexual persons...The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.”

The Lawrence Court also held that it had construed the relevant Due Process question far too narrowly in Bowers. The Bowers Court framed this issue as “whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy.” This coarse, insulting and denigrating framing of the issue “…disclose[d] the Court's own failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse” (Lawrence, supra).

This decision “removed the precedential underpinnings of the federal case law supporting the defendant’s claim that gay persons are not a quasi-suspect class.” In Lawrence, the US Supreme Court also held that the foundations of Bowers had been seriously eroded by intervening case law, making specific reference to Planned Parenthood v. Casey, 505 U.S. 833 (1992) and to Romer v. Evans, 517 U.S. 620 (1996).

In Casey (supra), the Court reaffirmed the substantive component of the Due Process Clause of the Fourteenth Amendment. Casey is perhaps best known for the following statement:

“At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.”

This assertion is wholly irreconcilable with the Court’s holding in Bowers. Gay persons may seek autonomy with respect to the formation and conduct of personal, intimate relationships. Bowers would deny them this right. Bowers would permit the states to punish gay persons for expressing the very characteristic that is so central to their lives. The Lawrence Court recognized that it had made a serious mistake, and further recognized that this mistake had very real and deleterious consequences for the lives of gay persons. In Lawrence, the Court held that Associate Justice John Paul Stevens’ dissent in Bowers should have been controlling. This dissent emphasized that the fact that the governing majority of persons has traditionally viewed a practice as immoral is not a sufficient reason for upholding a law prohibiting that practice. Also, decisions by unmarried persons with respect to sexual behaviour are protected by the substantive component of the Due Process Clause in the same way that decisions by married persons are protected.

The state court recognized that Lawrence represented a “sea change” in US Supreme Court jurisprudence concerning the rights of gay persons. Almost all of the federal courts (at both the district level and the intermediate appellate level) relied heavily, if not exclusively, upon Bowers to conclude that gay persons are not entitled to consideration as a quasi-suspect or a suspect class. This impediment has been removed by Lawrence. The considerations that normally come into play when deciding whether a group of persons should be granted suspect class or quasi-suspect class status may now be applied by the federal district courts and the federal appellate courts to cases in which classifications are made on the basis of sexual orientation. Thus, examination of federal precedent is inappropriate at this time; reliance on such precedent would be misplaced, due to the fact that almost all federal precedent has been influenced by Bowers.

Two decisions handed down within a month of each other reflect the influence that Lawrence is now having on due process challenges to the ban against openly gay persons serving in the armed forces of the US. In May 2008, a three-judge panel of the US Court of Appeals for the Ninth Circuit reinstated a lawsuit filed by Air force Major Margaret Witt, who had been suspended from duty pursuant to 10 U.S.C. section 654 (the basis for the “Don’t Ask, Don’t Tell” policy that prohibits openly gay men and women from serving in the Armed Forces) (see Witt v. Department of the Air Force, 527 F.3d 806, 828 (9th Cir. 2008), May 21, 2008). Senior Circuit Judge William Canby held that 10 U.S.C. section 654 should be subjected to strict scrutiny; he based this conclusion on the proposition that the right to engage in private, consensual sexual relations with another adult is a right of the highest constitutional order, and that this right is firmly protected by the substantive component of the Fifth Amendment’s Due Process Clause (Canby asserts that although the US Supreme Court did not expressly characterize this right as “fundamental,” it certainly treated it as such). Circuit Judges Graber and Gould held that 10 U.S.C. section 654 should be subjected to quasi-strict scrutiny; they concluded that the US Supreme Court had engaged in a searching inquiry that was certainly more demanding than mere rational basis review. The Connecticut Supreme Court adduced this decision as a case on point, holding that reliance on federal precedent controlled by Bowers is now entirely inapposite.

(Although this was not discussed by the Connecticut state supreme court, a three-judge panel of the US Court of Appeals for the First Circuit recently held that the US Supreme Court, in Lawrence, recognized a protected liberty interest in private, consensual sexual intimacy, requiring a “balancing of constitutional interests that defies either the strict scrutiny or rational basis label” (see Cook v. Gates, Nos. 06-2313, 06-2381, June 9, 2008). Judge Howard engaged in a meticulous examination of Lawrence, articulating four reasons in support of this holding. This falls outside the scope of this analysis, but it should be apparent that Lawrence has caused at least two of the federal appellate courts (to date) to conclude the right to sexual intimacy is a right of a very high constitutional order.)

For these reasons, the Connecticut Supreme Court concluded that almost all of the federal case law articulating the standard of review to which gay persons (as a group) should be subjected is no longer good law. This certainly appears to be a sound conclusion, given the above two circuit court opinions.

In Romer v. Evans, supra, the US Supreme Court purported to apply rational basis review to strike down Colorado’s Amendment 2 (see above discussion) (in fact, the Court may have applied a much more demanding standard of review than mere rational basis review, notwithstanding the language employed). The state argued that, because the US Supreme Court applied rational basis review to find that Amendment 2 violated the Equal Protection Clause, this is the standard of review that should always be applied in cases in which classifications are made on the basis of sexual orientation. The Connecticut state court spent little time exposing the folly underlying this reasoning. The Romer Court held that Amendment 2 could not withstand even the lowest level of review (rational basis review); it was therefore entirely unnecessary for the Court to decide whether heightened scrutiny was required. This is in accordance with the Court’s own well-established principle “never to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied” (see Brockett v. Spokane Arcades, Inc., 472 U.S. 491 (1985)).

In sum, the court held that federal case law is inapposite because these cases rely so heavily on Bowers v. Hardwick, supra, which has been overruled by Lawrence v. Texas, supra. In addition, federal courts that have determined that gay persons are not entitled to heightened protection have failed to reconcile their analyses with the analysis employed by the US Supreme Court in concluding that women comprise a quasi-suspect class.

The court then turned to an analysis of sister state supreme court opinions. The majority of such opinions have concluded that gay people are not entitled to heightened protection; however, the Connecticut state court concluded that these cases were analytically unsound and did not constitute persuasive authority. Instead, the Connecticut state court held that the recent opinion handed down by the California Supreme Court (in re Marriage Cases, S147999, May 15, 2008) constituted persuasive authority; the Connecticut state court also aligned itself with Chief Judge Kaye’s dissent in Hernandez v. Robles, supra. Time constraints prevent a detailed discussion in this essay; however, in almost all cases, the respective state supreme courts failed to properly apply the four-pronged test for suspectness or quasi-suspectness.

Turning to public policy considerations, the state court held that the change to the definition of marriage would not in any way impair the ability of heterosexual persons to avail themselves of the benefits and protections afforded by this institution. Instead, the state court held that granting gay persons access to this institution would expand the right to marry without any adverse effect on those already free to exercise that right. The state court compared this change to the change worked when the US Supreme Court struck down the ban on interracial marriages in Loving v. Virginia, 388 U.S. 1 (1967). The court also considered the effect that the ban on same-sex marriage has on children raised by same-sex partners, concluding that it was in the best interests of children raised by such couples to expand the definition of marriage so as to include same-sex spouses. Thirdly, the state court held that “civil unions” would be viewed as reflecting an official state policy that this entity is inferior to marriage. Finally, the court concluded that religious autonomy would in no way be impaired by expanding the definition of marriage to include same-sex couples. Those churches opposed to same-sex marriages can never be forced to marry couples of the same sex, just as they can never be forced to marry divorced people, or people who are not members of the church in question. This is an important point that has been made, over and over again, by gay rights activists; no church would ever be forced to conduct marriages of same-sex couples, and religious autonomy would in no way be compromised by permitting same-sex marriages.

The state court then turned to the final determination – having established that gay persons meet the four criteria adumbrated by the court for treatment as a quasi-suspect class, the state’s actions have to be “substantially related to an important state interest” (as opposed to “rationally related to a legitimate state interest” (rational basis review), or “necessary for the promotion of a compelling state interest” (strict scrutiny)). The state proffered two justifications for not permitting same-sex couples to marry, in the face of the court’s determination that gay persons comprise a quasi-suspect class.

The first reason advanced by the state was to promote uniformity and consistency with the laws of other jurisdictions. The state, however, advanced no explanation as to why the promotion of uniformity with the laws of other jurisdictions constituted a truly important state interest, and failed to identify case law that would support this contention. In the absence of such a showing by the state, the state could not prevail on its claim that “the state’s interest in defining marriage as most other jurisdictions do is sufficiently compelling to justify the discriminatory effect” that this definition has on gay persons.

The second reason advanced by the state was to preserve the traditional definition of marriage as a union between a man and a woman. It was abundantly clear, from the record, that this was the state’s primary, and overriding, goal. The circular nature of this reasoning is self-evident. Citing from Chief Judge Kaye’s dissent in Hernandez v. Robles, supra, the court held that “[a] classification…cannot be maintained merely “for its own sake” (see Romer v. Evans, supra). Instead, the classification (that is, the exclusion of gay persons from civil marriage) must advance a state interest that is separate from the classification itself. Because the “tradition” of excluding gay persons from civil marriage is no different from the classification itself, the exclusion cannot be justified on the basis of “history.” Indeed, the justification of “tradition” does not explain the classification; it merely repeats it. Simply put, a history or tradition of discrimination – no matter how entrenched – does not make the discrimination constitutional” (internal citations omitted). Indeed, the court noted, “the fact that same-sex couples have traditionally been prohibited from marrying is the reason [the action challenging the ban on same sex marriage] was commenced; it cannot be converted into the dispositive reason it cannot succeed” (cited from in re Marriage Cases, supra).

Like the California Supreme Court, the Connecticut Supreme Court approached the issue not by creating a new right to “same-sex marriage,” but by applying equal protection theory to include gay people in the pre-existing right of marriage. When the California Supreme Court overturned the prohibition against interracial marriage (see Perez v. Sharp, 32 Cal.2d 711, 198 (1948)), this court did not create a new right to “interracial marriage” – it employed state constitutional analysis to expand the right to marry to include interracial couples. The US Supreme Court eventually followed the lead set by the California Supreme Court, holding that the prohibition of interracial marriages violated the Equal Protection Clause of the Fourteenth Amendment (Loving v. Virginia, 388 U.S. 1 (1967)).

Although three of the seven Justices dissented, it is noteworthy that the dissenting Justices made only passing reference to the tired refrain that this matter should be decided by the democratic process, as opposed to being decided by judges through state constitutional interpretation. One of the three dissents focused primarily on the assertion that civil unions were inferior to actual marriages, as well as on the importance of the “political powerlessness” factor in triggering quasi-strict scrutiny. One patently absurd dissenting argument was that there was no equal protection violation, because both gay and heterosexual persons have the right to marry a person of the opposite sex. Another analytically impoverished dissent argued that the purpose of marriage is to regulate procreation – an argument that has been emphatically rejected by the California Supreme Court and by the Connecticut Supreme Court majority. As has been pointed out elsewhere, the ability to procreate is no longer central to the definition of marriage. Many married people choose not to have children, or are unable to have children, just as many unmarried people choose to have children. This dissent reduced marriage to the status of a vehicle that “enhances the special status of procreative conduct.”

Unlike the California state constitution, the Connecticut state constitution cannot be amended directly, by the voters. This is crucial – whereas the right wing can whip up anti-gay hysteria in California, and may even succeed in reversing the California Supreme Court decision, the right wing cannot manipulate the voters of Connecticut in this manner. Connecticut has thus become the third state to recognize gay marriage in both name and substance. (A challenge to the prohibition of gay marriage in Iowa is currently pending.)

All of this is proof that the incremental strategy of appealing to state supreme courts is working, albeit slowly. Just as the gay community turned to state supreme courts to strike down sodomy statutes in the wake of Bowers (supra), so is the gay community turning to state supreme courts to strike down prohibitions against gay marriage. Both time and justice are on our side.

Three down, with 47 to go.


PHILIP CHANDLER