Attorney General Releases Legal Opinions On Same-Sex Marriage

THE BACKGROUND: Connecticut recognized same-sex civil unions as a legal counterpart to marriage in 2005. Yet advocates of marriage equality argued that because the status of marriage had been withheld, it creating social and legal opportunities for discrimination.

The Kerrigan v Commissioner of Public Health lawsuit was brought in 2004 after eight same-sex couples were denied marriage licenses and sued, saying their constitutional rights to equal protection and due process were violated. They said the state’s marriage law, if applied only to heterosexual couples, denied them of the financial, social, and emotional benefits of marriage.

Although the state superior court ruled in July 2006 that civil unions did provide same-sex couples with equal protections, the couples appealed and the supreme court began hearing arguments in May 2007.

On October 10, state Supreme Court Justice Richard N. Palmer wrote for the majority that “gay persons are entitled to marry the otherwise qualified same-sex partner of their choice. To decide otherwise would require us to apply one set of constitutional principles to gay persons and another to all others. The guarantee of equal protection under the law, and our obligation to uphold that command, forbids us from doing so.”

The Connecticut Supreme Court has referred the application of their ruling to a lower court. A directive instructing municipalities to begin issuing marriage licenses to same-sex couples was expected on or shortly after October 28.

THE UPDATE: On October 28, 2008, Attorney General Richard Blumenthal answered a series of legal questions formally asked by state officials relating to the Connecticut Supreme Court ruling in Kerrigan v Commissioner of Public Health, which was officially released by the court on October 28, including the status of civil unions and recognition of out-of-state marriages.

After ten days, the Supreme Court will formally remand the case back to Superior Court, where it originated. That court will then issue orders to the town clerks and the Department of Public Health (DPH) commissioner in accordance with the Supreme Court’s ruling, enabling same-sex couples to marry.

“Under the order that we will seek, same-sex marriages will begin during the week of November 10,” Mr Blumenthal said on Tuesday afternoon.

The Supreme Court ruled that Connecticut’s laws limiting marriage to opposite-sex couples violate the equal protection provisions of the state constitution and that “same sex couples cannot be denied the freedom to marry.”

Among several legal opinions released Tuesday, Mr Blumenthal said civil unions will continue to be performed and recognized and need not be dissolved prior to the couple marrying each other, and that out-of-state civil unions and marriages will be legally valid in Connecticut.

Public officials such as justices of the peace cannot refuse to perform a marriage for discriminatory reasons. No state law requires them to perform any or all marriages.

“The Kerrigan ruling — officially released today — raises profoundly significant questions that we are working to address before the Superior Court implements same-sex marriage in Connecticut in early or mid-November,” Mr Blumenthal said. “We are collaborating with other state agencies to provide proper protocol and forms.

“While extending marriage to same-sex coup  les, the Supreme Court ruling in Kerrigan leaves civil unions in place, along with all benefits associated with such status. Couples who have entered into civil unions will continue in that status, receiving health and life insurance, pensions and other rights — and need not dissolve their civil unions should they choose to enter into marriage with one another.

“My office will continue to promptly research and respond to any questions, if they arise, in order to honor this Supreme Court ruling,” the attorney general added.

Mr Blumenthal, responding to questions from Comptroller Nancy Wyman, Commissioner of Revenue Services Pam Law, and Department of Public Health Commissioner J. Robert Galvin, concluded the following:

*The Kerrigan decision does not alter the status of existing civil unions in Connecticut. Both same-sex marriages and civil unions will be granted and recognized under current law and policy.

*Same-sex couples who are currently in civil unions are not required to dissolve their civil unions prior to marrying each other, but must take additional and separate steps to be married.

*Couples who have entered into civil unions will continue to be eligible for all health, pension, life insurance, and other benefits now guaranteed under civil unions.

*Connecticut will continue to recognize the validity of out-of-state civil unions and, in addition, will now recognize out-of-state same-sex marriages.

*Parties to a same-sex marriage will now be accorded the same state tax treatment as parties to civil unions and opposite-sex marriages.

*The age restrictions and other requirements currently in place for a marriage between opposite-sex couples will apply fully and equally to same-sex couples.

*Although no state law requires justices of the peace to marry any particular couple, they may not refuse to perform a marriage for discriminatory reasons, in violation of the Connecticut Constitution.

Mr Blumenthal’s office, jointly with the plaintiffs, expects to file a draft order, most likely on November 10, for the Superior Court to implement the Supreme Court ruling. It is unclear how quickly the Superior Court will act to implement the order.