Friday, October 10, 2008
The Connecticut Supreme Court's opinion in Kerrigan v. Commissioner of Public Health is an opinion worth teaching and assigning. Its major drawback is its length at 84 pages - and that's not including the three dissents. Yet it is clearly written with a model analysis.
The most unique aspect of the opinion is the decision that the intermediate scrutiny standard should be applied under state constitutional law. The Connecticut Supreme Court reaches this conclusion by first deciding that the statutory scheme makes a classification on the basis sexual orientation (some courts have decided the classification is a gender one; other courts have decided there is actually no classification being made). Once the court decides it is a sexual orientation classification, the next issue is the level of scrutiny to be applied. Under the Fourteenth Amendment's equal protection clause the standard is rational basis - - - or rational basis with "bite" - - - given the precedent of Romer v. Evans, 517 U.S. 620 (1996). But the Connecticut Supreme Court notes that federal constitutional 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.’’ (Opinion at 11). This is especially nicely (and succinctly) expressed in the opinion in a manner easly graspable by students.
In reaching its decision that intermediate scrutiny is applicable, the Court has some interesting analysis. It looks at its state constitutional provision, section 20, that enumerates eight categories that are protected, including gender, but not including sexual orientation. The Court clearly articulates an evolving interpretation of its state constitution - - - citing John Marshall in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 415, (1819), as well as state cases.
The Court looks at sexual orientation under a modified Carolene Products analysis, listing the factors as:
* the group has suffered a history of invidious discrimination;
* the characteristics that distinguish the group’s members bear ‘‘no relation to [their] ability to perform or contribute to society.’’
* the characteristic that defines the members of the class as a discrete group is immutable or otherwise not within their control;
* the group is ‘‘a minority or politically powerless.’’
(The Court also does an analysis of six factors under state law which would be less interesting to non-Connecticut readers).
After deciding intermediate scrutiny applies, the Court articulates the VMI intermediate scrutiny standard, which can be rightly called intermediate plus:
‘‘Focusing on the differential treatment or denial of opportunity for which relief is
sought, the reviewing court must determine whether the proffered justification is exceedingly persuasive. The burden of justification is demanding and it rests
entirely on the [s]tate. . . . The [s]tate must show atleast that the [challenged] classification serves important governmental objectives and that the discrimina-
tory means employed are substantially related to the achievement of those objectives. . . . The justification must be genuine, not hypothesized or invented post hoc in response to [the] litigation. And it must not rely on overbroad generalizations about the different talents, capacities, or preferences of [the groups being classified].’’ (Citations omitted; internal quotation marks
United States v. Virginia (VMI), 518 U.S. 515, 532–33 (1996).
The Court rather quickly finds the government interests do not meet the VMI heightened scrutiny standard. The unique aspect of this analysis occurs because Connecticut allows same-sex civil unions, so the means chosen - - - prohibiting marriage but not civil unions - - - is different from most other cases.
I'd suggest teaching Kerrigan v. Commissioner of Public Health - - - in edited form - - - in any unit on state constitutions. I combine a "unit" on sexuality and state constitutions, with separate but intersecting learning goals for each aspect.
There is also a CALI lesson on same-sex relationships (that I authored) that provides student self-directed learning on the constitutional, state constitutional, and various arguments aspects of the cases, as well as the federal and state DOMA interface. It also has a 50 state map with laws in each state. However: it is not presently up-to-date. I've been waiting to see what happens with Proposition 8 in California on November 4.