Kerrigan v. Commissioner of Public Health

• Decision Date: 28 October 2008
• Docket Number: No. 17716.,17716.
• Citation: 957 A.2d 407,289 Conn. 135
• Parties: Elizabeth KERRIGAN et al. v. COMMISSIONER OF PUBLIC HEALTH et al.
• Court: Connecticut Supreme Court

957 A.2d 407

289 Conn. 135

Elizabeth KERRIGAN et al. v. COMMISSIONER OF PUBLIC HEALTH et al.

No. 17716.

Supreme Court of Connecticut.

Argued May 14, 2007.

Decided October 28, 2008.

Bennett C. Klein, pro hac vice, with whom were Kenneth J. Bartschi and Mary L. Bonauto, pro hac vice, and, on the brief, Karen L. Loewy, pro hac vice, Jennifer L. Levi, pro hac vice, and Karen L. Dowd, Maureen Murphy and Renee Redman, for the appellants (plaintiffs).

Jane R. Rosenberg, assistant attorney general, with whom were Robert W. Clark and Susan Quinn Cobb, assistant attorneys general, and, on the brief, Richard Blumenthal, attorney general, for the appellees (named defendant).

Judith Ravel, Guilford, for the appellee (defendant Dorothy Bean, acting town clerk of the town of Madison).

Jennifer A. Osowiecki filed a brief for Connecticut Clergy for Marriage Equality et al. as amici curiae.

Daniel J. Klau filed a brief for Carlos Ball et al. as amici curiae.

Sheila A. Huddleston, Christopher R. Drury, Lee Anne Duval and Kevin M. Roy filed a brief for Ian Ayres et al. as amici curiae.

Noah B. Novogrodsky, Ben A. Solnit and Paul Guggina filed a brief for the International Human Rights Clinic of the University of Toronto Faculty of Law et al. as amici curiae.

Stuart D. Rosen, William C. Heuer, Meghan Freed Pelletier, Stuart F. Delery, Nora Freeman Engstrom and Benjamin C. Mizer filed a brief for the Human Rights Campaign et al. as amici curiae.

Sheila Horvitz filed a brief for the Connecticut chapter of the American Academy of Matrimonial Lawyers as amicus curiae.

Linda L. Morkan and Kori Termine Wisneski filed a brief for the Lambda Legal Defense and Education Fund, Inc., as amicus curiae.

Timothy S. Fisher, Charles D. Ray and Brian P. Rice filed a brief for Peter W. Bardaglio et al. as amici curiae.

Leslie I. Jennings-Lax filed a brief for Barbara Aaron et al. as amici curiae.

Martin B. Margulies, Emanuel Margolis, Mary-Kate Smith, Jennifer Gerarda Brown and Suzanne B. Goldberg filed a brief for the American Association of University Women in Connecticut et al. as amici curiae.

Paul M. Smith, William M. Hohengarten, Eric Berger, Nathalie F.P. Gilfoyle and Sandra Rachel Baker filed a brief for the American Psychological Association et al. as amici curiae.

Joseph Niglio, Paul R. Devin, Thomas Brejcha and Paul Benjamin Linton filed a brief for the Knights of Columbus as amicus curiae.

Dwight G. Duncan and William T. Barrante filed a brief for the Alliance for Marriage as amicus curiae.

Peter Wolfgang filed a brief for John Coverdale et al. as amici curiae.

Michael K. Conway filed a brief for James Q. Wilson et al. as amici curiae.

Anthony R. Picarello, Jr., Roger T. Severino and Howard M. Wood III filed a brief for the Becket Fund for Religious Liberty as amicus curiae.

Gregg Hannan and Monte N. Stewart filed a brief for United Families Connecticut as amicus curiae.

Howard M. Wood III filed a brief for Paul McHugh et al. as amici curiae.

Vincent P. McCarthy, Laura Hernandez and Kristina J. Wenberg filed a brief for the Family Institute of Connecticut as amicus curiae.

Mark W. Dost filed a brief for the Connecticut Catholic Conference, Inc., as amicus curiae.

Hugh D. Hughes, Benjamin W. Bull, Glen Lavy, Christopher R. Stovall and Dale Schowengerdt filed a brief for the Family Research Council as amicus curiae.

BORDEN, NORCOTT, KATZ, PALMER, VERTEFEUILLE, ZARELLA and HARPER, Js.^*

PALMER, J.

The issue presented by this case is whether the state statutory prohibition against same sex marriage violates the constitution of Connecticut. The plaintiffs, eight same sex couples, commenced this action, claiming that the state statutory prohibition against same sex marriage violates their rights to substantive due process and equal protection under the state constitution. The trial court rendered summary judgment in favor of the defendant state and local officials upon determining that, because this state's statutes afford same sex couples the right to enter into a civil union, which affords them the same legal rights as marriage, the plaintiffs had not established a constitutionally cognizable harm. We conclude that, in light of the history of pernicious discrimination faced by gay men and lesbians,¹ and because the institution of marriage carries with it a status and significance that the newly created classification of civil unions does not embody, the segregation of heterosexual and homosexual couples into separate institutions constitutes a cognizable harm. We also conclude that (1) our state scheme discriminates on the basis of sexual orientation, (2) for the same reasons that classifications predicated on gender are considered quasi-suspect for purposes of the equal protection provisions of the United States constitution, sexual orientation constitutes a quasi-suspect classification for purposes of the equal protection provisions of the state constitution, and, therefore, our statutes discriminating against gay persons are subject to heightened or intermediate judicial scrutiny, and (3) the state has failed to provide sufficient justification for excluding same sex couples from the institution of marriage. In light of our determination that the state's disparate treatment of same sex couples is constitutionally deficient under an intermediate level of scrutiny, we do not reach the plaintiffs' claims implicating a stricter standard of review, namely, that sexual orientation is a suspect classification, and that the state's bar against same sex marriage infringes on a fundamental right in violation of due process and discriminates on the basis of sex in violation of equal protection. In accordance with our conclusion that the statutory scheme impermissibly discriminates against gay persons on account of their sexual orientation, we reverse the trial court's judgment and remand the case with direction to grant the plaintiffs' motion for summary judgment.

The record reveals the following undisputed facts and procedural history. On August 24, 2004, the plaintiffs,² eight same sex couples who applied for and were denied marriage licenses by the town of Madison, commenced this action, seeking a declaratory judgment and injunctive relief against the defendants, J. Robert Galvin, in his official capacity as commissioner of the state department of public health, and Dorothy Bean, in her official capacity as acting town clerk and deputy registrar of vital statistics of the town of Madison. The plaintiffs sought, inter alia, a judgment declaring that, to the extent that any statute, regulation or common-law rule precludes otherwise qualified individuals from marrying someone of the same sex, or because they are gay or lesbian couples, such statutes, regulations and common-law rules violate various provisions of the state constitution, including the due process provisions of article first, §§ 8³ and 10,⁴ and the equal protection provisions of article first, §§ 1⁵ and 20, as amended.⁶

The plaintiffs did not raise any claims under the United States constitution. The plaintiffs also sought an order directing Bean to issue a marriage license to each couple and the department of public health to register the plaintiffs' marriages once they were performed.⁷

While the plaintiffs' action was pending in the trial court, the legislature passed Public Acts 2005, No. 05-10, now codified at General Statutes §§ 46b-38aa et seq. (civil union law), which established the right of same sex partners to enter into civil unions and conferred on such unions all the rights and privileges that are granted to spouses in a marriage. See General Statutes § 46b-38nn;⁸ see also General Statutes (Sup. 2008) § 46b-38oo.⁹ Under the civil union law, however, "marriage" is defined as "the union of one man and one woman." General Statutes § 46b-38nn. In light of this intervening statutory development, the parties narrowed the issue posed by this action to whether the civil union law and its prohibition against same sex marriage pass muster under the state constitution.

Thereafter, the parties filed cross motions for summary judgment. In support of the plaintiffs' motion, they claimed, inter alia, that this state's statutes governing marriage and civil unions violate the due process and equal protection provisions of the state constitution because they deprive gay persons of the fundamental right to marry the person of their choice, and because they discriminate on the basis of both sex and sexual orientation. With respect to their due process claim, the plaintiffs maintained that, because marriage is a fundamental right, the state bears the burden of demonstrating that any abridgement of the right has been narrowly tailored to effectuate a compelling state interest, a burden which, the plaintiffs contended, the state cannot meet.

With respect to their equal protection claims, the plaintiffs maintained that, by limiting marriage to the union of a man and a woman, our statutory scheme impermissibly segregates on the basis of sex in violation of the express prohibition against such treatment contained in article first, § 20, of the state constitution, as amended by article five of the amendments. The plaintiffs contended that this state's statutes contravene the state constitutional prohibition against sex discrimination because those statutes preclude a woman from doing what a man may do, namely, marry a woman, and preclude a man from doing what a woman may do, namely, marry a man. The plaintiffs also maintained that our laws barring same sex marriage impermissibly discriminate against gay persons, who, the plaintiffs claimed, constitute a suspect class or, at the least, a quasi-suspect class, under constitutional principles of equal protection.¹⁰ In particular, the plaintiffs maintained that, because they are members of a suspect or quasi-suspect class, the state cannot discriminate against them in the absence of an exceptionally strong...