A Review of Same-Sex Marriage Developments In Connecticut

Saturday, November 22, 2008

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 due process and 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 got on the November ballot a proposal to call a state constitutional convention that could potentially propose 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." the rest