Supreme Court Hears Gay Marriage Case
by Christine Stuart | May 14, 2007 5:29 PM
Posted to Courts
An attorney for eight same-sex couples told the Supreme Court Monday that by denying the couples marriage licenses the state violated their constitutional rights.
Here’s the notice.
The Supreme Court Justices will have to decide whether the denial of the marriage licenses violates the state constitution’s equal protection clause.
Assistant Attorney General Jane Rosenberg argued that same-sex couples have the right to marry, even though they don’t have the right to marry someone of the same sex.
She said it’s not the court’s role to determine whether these couples should be given the word “marriage” to describe the rights conveyed to them by the 2005 civil union legislation. She said it’s a public policy issue not a constitutional one.
Bennett Klein, the attorney for the eight gay couples, argued that even though the state gave same-sex couples the same rights as married couples under the 2005 civil unions legislation, it created a separate and unequal class.
And Klein said his clients should be treated as a class. As a “suspect class” the gay couples would be given greater scrutiny under the constitution. The level of scrutiny would be similar to the scrutiny the constitution gives to those from different races, religions, or nationalities.
Part of the three prong test that applies to classes involves political powerlessness.
Rosenberg argued that the gay community has a tremendous amount of political power.
In his 15-minute rebuttal Klein said the court can’t look at the political power the gay community has today, but needs to look at political power through a historical lens.
Justice Flemming Norcott said if it was true they had political power “they would have passed a bill across the street and we wouldn’t be here.” The courtroom erupted in laughter.
But even gay marriage opponents, like Peter Wolfgang of the Family Institute of Connecticut, seemed to notice how seriously the justices were focused on the issue of suspect class. Outside after the court heard three hours of oral argument, he said it looked like the justices were toying with the idea of creating a new suspect class. He said he disagrees the gay community merits higher scrutiny under the law because “we know how powerful our opponents are.”
The legislature attempted to pass a marriage equality bill this year, but decided not to force a vote on it because it didn’t have the votes. Gov. M. Jodi Rell has said several times she would veto the measure because she believes marriage is between a man and a woman.
Back to the suspect class argument which seemed to dominate the debate in court Monday.
The systemic discrimination the gay community has faced “does not disappear in any specific time frame,” Klein said. He said we live in a country where gay people cannot serve in the armed forces and where they have no federal protections.
The word marriage that’s being withheld from his clients is something “society values.”
Rosenberg said “this is a matter that belongs in the legislative realm.” She said conveying the word “marriage” to same-sex couples should be left up to the legislature because its public policy debate not a constitutional one.
Click here to read one of the briefs filed in the case.
Comments (3)
Posted by: Gideon | May 14, 2007 6:24 PM
I was also intrigued by Justice Borden's questioning on what would happen if, assuming a reversal of the trial court decision, the legislature were to repeal the civil union bill and whether that would be fatal to plaintiff's arguments.
If I were to guess, they will affirm the summary judgment grant and use strong language to suggest that the legislature ought to fix this.
Btw, the first link isn't a brief; it's just a summary provided by the Supreme Court Clerk's Office and the second link (pdf) isn't an amicus brief, it is just the reply brief of the plaintiff that they can file in response to the state's brief.
Posted by: christine | May 14, 2007 8:26 PM
Thanks for the clarifications on the links.
In regards to the legal arguments I agree that was an interesting hypothetical.
Any predictions on the outcome?
Posted by: Gideon | May 14, 2007 8:54 PM
I'd be foolish to venture a guess; but given that I'm prone to making outlandish statements, I'd say that the Court will deny the appeal. It seems that while some of the Court may agree with gay marriage in principle, they would be reluctant to hold that the Constitution requires it.
I think if the legislature had considered it and rejected it, they might be more prone to holding so. However, given that the legislature has not yet had the opportunity to offer its opinion (although the bill did pass the JC by a relatively large margin), I suspect they will defer to the legislature.
What is also noteworthy about that aspect is the series of questions about the legislative history of the civil union bill. Justice Borden was seemingly interested in knowing what legislative history he should or could look to (transcripts, public hearings, testimony on the floor, etc.).
However, they could (pleasantly) surprise me and hold that it is Constitutionally required.
It would have helped if other Justices had asked more questions (Katz, Vertefeuille, Zarella, Norcott).
Wow. That's a long comment. Sorry for the ramble.