October 10, 2014
Earlier this week, I wrote about the Supreme Court’s refusal to review a series of rulings dealing with the validity of same-sex marriage bans in five states. Specifically, all five of these rulings relied on the Supreme Court’s 2013 U.S. v. Windsor ruling to find that the respective state ban at issue in each case violated the Constitution.
With the Court’s recent order on those cases, a total of 27 states, plus the District of Columbia, now recognize same-sex marriage. Considering that more states than not now allow it, it’s hard to believe that just six years ago, Connecticut made headlines across the nation by becoming the third state to legalize same-sex marriage.
The change happened with the four to three vote of the state’s supreme court in Kerrigan v. Commission of Public Health to strike down the state’s same-sex marriage as violating the state constitution.
Although the ruling didn’t take effect until October 28 of 2008 (and the opinion is dated the same), the actual decision was made on October 10.
The decision was ahead of its time in many ways. Like so many of the legal challenges that we’ve witnessed since Windsor was handed down last year, Kerrigan was started by a group of same-sex couples who were denied marriage licenses in the state based on their sexual orientation.
Perhaps even more prognosticating was the rationale used in the ruling by the court itself: the majority held that “sexual orientation constitutes a quasi-suspect classification for purposes of the equal protection provisions of the state constitution,” and that, because the ban in question discriminates on the basis of sexual orientation, it is subject to intermediate scrutiny.
This same approach was adopted by the majority of courts five years later after Windsor was decided (including a handful previously) – in relation to the U.S. Constitution.
Under intermediate scrutiny review, a state defending its laws must demonstrate that the challenged law furthers an important government interest in a manner substantially related to that interest. In Kerrigan, the state and defenders of the ban offered up “tradition” and “moral disapproval” as the “important government interests” in question. The court, however, found these to be wholly inadequate.
Interestingly, these two “interests” have been proffered less and less over time, probably because of rulings like Kerrigan where the court have them very little weight. Instead, we instead find the ban defenders of today proposing “responsible procreation” or the like as the “important government interest” – and it has seen about as much support from courts as its previous iterations.
Once again being ahead of its time, Kerrigan also found that the ban violated the state’s constitutional due process clause in that it denied a fundamental constitutional right (the right to marry) to the challengers. This same argument has found a great deal of success with many courts since Kerrigan, and is often relied upon, along with the above equal protection argument, in striking down state same-sex marriage bans.
Thus, Kerrigan may be seen as one of the earliest models for courts in striking down state same-sex marriage bans as unconstitutional. Many of the same arguments are presented to the court in that ruling as are the rulings of today, and largely the same legal reasoning is used by today’s courts as were used by the Kerrigan court.
As more and more courts rule to strike down same-sex marriage bans, we’ll undoubtedly see more opinions from these courts that resemble their forebear from six years ago.