The Paths to Marriage Equality

By Kenneth J. Bartschi, Partner

Perhaps you heard that last Friday, June 26th, the United States Supreme Court held that the 14th Amendment guarantees that same-sex couples the fundamental right to marry. The first clue might have been that your Facebook feed looked like a Skittles factory exploded. Or maybe it was the bazillion articles on the internet or the wall-to-wall media coverage.

In any event, you probably know that in Obergefell v. Hodges, 215 WL 2473451 (U.S. June 26, 2015), Justice Kennedy, writing for the five justices in the majority, delivered a full-throated substantive due process decision, buttressed by equal protection analysis, concluding that states must license marriages between same-sex couples and recognize such marriages validly performed elsewhere. In broad strokes, the dissenters variously argued that the issue should be decided legislatively (Chief Justice Roberts); the drafters of the 14th Amendment would not have consider marriage a fundamental right, let alone for same-sex couples (Justice Scalia); liberty for constitutional purposes means, at most, freedom from government action (Justice Thomas); and marriage was not traditionally about happiness but regulating procreation (Justice Alito).

While there was plenty of celebration of Obergefell in Connecticut, in some respects, the rest of the country is just catching up with us. After all, it has been six years since our Supreme Court held in Kerrigan v. Commissioner of Public Health, 289 Conn. 135 (2008), that the Connecticut constitution guarantees the rights of same-sex couples to marry. [Full disclosure: Karen Dowd and I served as cooperating counsel with GLAD (Gay & Lesbian Advocates & Defenders) in representing the plaintiffs in Kerrigan.] Now might be a good time to highlight the similarities and differences between Kerrigan and Obergefell as it provides a fascinating contrast (for law geeks, anyway) between the courts.

Whether in state or federal courts, plaintiffs in marriage equality cases have generally offered the following arguments: excluding same-sex couples infringes on the fundamental right to marry and does not survive strict scrutiny, constitutes sex discrimination that does not survive heighted scrutiny, discriminates on the basis of sexual orientation and is subject to some form of heightened scrutiny, which is does not survive, and does not survive rational basis review. At one time or another, all of these arguments have served as the basis for at least one favorable decision on marriage equality.

In Kerrigan, the plaintiffs limited their claim to the Connecticut Constitution, and the Connecticut Supreme Court held in a 4-3 decision that under Article First, § 20, sexual orientation is a quasi-suspect class and that state failed to proffer sufficient reasons to withstand intermediate scrutiny. Kerrigan has the potential to reach beyond the marriage context as any classification based on sexual orientation will be subject to heightened scrutiny.

In contrast, the United States Supreme Court in Obergefell largely based its decision on substantive due process, i.e., that same-sex couples were deprived of a fundamental right. The Court also discussed the equal protection clause of the 14th Amendment, noting the interplay of fundamental rights and equal protection in the context of marriage reinforced the right to marry. Unlike Kerrigan, however, the Court did not articulate what level of scrutiny it employed in striking down the bans on marriage for same-sex couples.

As for the dissents in Kerrigan, Justice Borden (joined by Justice Vertefeuille), concluded that the legislature should decide the question. However, Justice Borden explained in detail why, in his view, sexual orientation was not a suspect class taking 42 pages to do so. Similarly, Justice Borden explained in detail why the marriage bans did not constitute gender discrimination or violate the fundamental right to marry. (Justice Vertefeuille wrote a short dissent to emphasize the heavy burden the plaintiffs had in making their constitutional challenge, which she evidently thought they failed to carry.) Justice Zarella addressed why the marriage bans satisfied rational basis review. Thus, between them, the dissenters addressed all the arguments made by the plaintiffs and why, in the dissenters’ view, they were not persuasive.

In contrast, the dissenters in Ogergefell addressed the substantive due process argument but largely ignored the balance of the plaintiffs’ arguments. Chief Justice Roberts comments on the political progress of gay people in three paragraphs. Justice Scalia mentioned the debate on the issue in passing to note some successes by marriage equality advocates. None of the dissents discuss the sex-discrimination argument. In addition, Obergefell posed a second question, namely whether states could refuse to recognize marriages of same-sex couples performed elsewhere. This question implicates the Full Faith and Credit Clause, but no one discusses that clause at all. (Justice Scalia does cite the clause, but in a laundry list of examples of restrictions on government action, not its application to the second question.)

Perhaps time constraints caused the dissenters to limit their discussion to responding to the majority’s reasoning. After all, the Court heard arguments on April 28 and ruled less than two months later. (Our Supreme Court took seventeen months to decide Kerrigan.) Still, rather than reiterating each other’s frustration with the due process analysis, it would seem like somebody could have addressed the remaining claims.

Both Kerrigan and Obergefell are landmark decisions. That multiple reasons exist to support marriage equality as a constitutional right reinforces the correctness of the result in both cases. The cases also demonstrate differences in philosophies when it comes to dissents, specifically on whether a dissent should address all the issues raised by the parties.