Friday, October 10, 2008

Connecticut Strikes Down Statutory Same Sex Marriage Ban

120pxflyingrainbowflagConnecticut became the third state in the union today to declare that its state constitution prohibits limiting the right to marry to different sex couples. In Kerrigan v. Comm'r of Pub. Health, the Connecticut Supreme Court held 4-3 (the dissents can be found here, here, and here) that gays and lesbians had suffered a history of pernicious discrimination; that just as for gender under the federal constitution, sexual orientation was a quasi-suspect class; that classifications on that basis warranted heightened scrutiny; and that the state had not offered an important enough interest to warrant the classification.

As Paul noted in May when the California Supreme Court decision came down, this has significant employment law consequences. It will impact benefits issues, and it reinforces the state's employment discrimination laws that prohibit discrimination on the basis of sexual orientation in both the public and private sector.

Just a couple of hours ago, I was listening to a speech by Shannon Minter of the National Center for Lesbian Rights speak on this topic, a bit nervously remarking that no one knew why it was taking the Connecticut Supreme Court so long to decide the issue. He also noted that people interested in the issue should keep their eyes on the fight in California over Proposition 8, the initiative drive to amend the California Constitution to overturn that state's supreme court decision. Additionally, the Iowa Supreme Court is considering the same sex marriage issue in Varnum v. Brien, which is set for argument December 9.


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I haven't been able to track down when this takes effect. NYT says October 28, but I haven't found any source material to verify.

Posted by: Cathy Stamm | Oct 10, 2008 4:14:34 PM

The opinion itself says (just under the title and the names of the justices signing on to it) that it will be "officially released" on October 28, 2008. That date may be when the time for a petition for rehearing would expire, or something along those lines.

Posted by: Marcia | Oct 10, 2008 6:44:17 PM

All CT supreme court decisions have an officially released date about 10 days after. This is to clean up errors in the draft decision etc. It is routine in all such cases. It is also to give time to put the summary of the case in it. If you look at the version being handed around, there is a blank page or two after the description of the attorneys....

Posted by: Dan Schwartz | Oct 11, 2008 7:42:24 AM

Thanks, Dan. I finally actually read the blurb that appears before the opinion in the file (instead of just assuming), and it says that. That blurb also states that the official release date is the date that the time for filing anything begins to run, totally contrary to what I had suggested. So, Cathy, you'll have to research generally when Supreme Court opinions take effect in Connecticut. I don't know the answer in Connecticut, but it may be similar to Illinois where an opinion takes effect as soon as it is issued--here October 28. I believe that is the federal rule, also. Alternatively, it might not take effect until the Supreme Court issues the "mandate" back to the lower court. Maybe an appellate attorney licensed in Connecticut could say what the general rules are.

Posted by: Marcia McCormick | Oct 14, 2008 2:36:18 PM

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