Connecticut Supreme Court Legalizes Same-sex Marriage: October 10, 2008

"a long history of purposeful and invidious discrimination"

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Introduction On October 10, 2008, the Supreme Court of Connecticut ruled that same-sex couples have a right to marry under the state's constitution. The ruling cannot be appealed and takes effect on October 28. <add more details>

The Court's Stress on History

Explaining the status of gay persons as a quasi-suspect class whose legal rights require close scrutiny, the court explained: "Gay persons have been subjected to and stigmatized by a long history of purposeful and invidious discrimination that continues to manifest itself in society."

Admitting that "that gay persons recently have made significant advances in obtaining equal treatment under the law," the court nonetheless concluded that, "as a minority group that continues to suffer the enduring effects of centuries of legally sanctioned discrimination, laws singling them out for disparate treatment are subject to heightened judicial scrutiny to ensure that those laws are not the product of such historical prejudice and stereotyping."

Here is the part of the Connecticut Supreme Court's decision focusing on history. (Paragraphing has been added to make this text easier to read on the web.)

History of Discrimination

The defendants do not dispute that gay persons historically have been, and continue to be, the target of purposeful and pernicious discrimination due solely to their sexual orientation. For centuries, the prevailing attitude toward gay persons has been ‘‘one of strong disapproval, frequent ostracism, social and legal discrimination, and at times ferocious punishment.’’

R. Posner, Sex and Reason (Harvard University Press 1992) c. 11, p. 291; see also note, ‘‘The Constitutional Status of Sexual Orientation: Homosexuality as a Suspect Classification,’’ 98 Harv. L. Rev. 1285, 1302 (1985) (‘‘It is . . . uncontroversial that gays as a group suffer from stigmatization in all spheres of life. The stigma has persisted throughout history, across cultures, and in the United States.’’). ‘‘The American Psychiatric Association [has noted that] . . . when compared to other social groups, homosexuals are still among the most stigmatized groups in the nation. Hate crimes are prevalent. Gay persons are still banned from serving openly in the [United States] military service. . . . . Gay and lesbian adolescents are often taunted and humiliated in their school settings. Many professional persons and employees in all occupations are still fearful of identifying as gay or lesbians in their work settings. . . . In fact, gay persons share a history of persecution comparable to that of blacks and women.’’ (Citation omitted; internal quotation marks omitted.) Snetsinger v. Montana University System, 325 Mont. 148, 163–64, 104 P.3d 445 (2004) (Nelson, J., concurring); see also In re Marriage Cases, supra, 43 Cal. 4th 841 (‘‘[o]utside of racial and religious minorities, we can think of no group which has suffered such pernicious and sustained hostility . . . as homosexuals’’ [internal quotation marks omitted]); D. Satcher, Surgeon General, United States Department of Health and Human Services, ‘‘The Surgeon General’s Call to Action to Promote Sexual Health and Responsible Sexual Behavior’’ (July 9, 2001) (‘‘[O]ur culture often stigmatizes homosexual behavior, identity and relationships. . . . These anti-homosexual attitudes are associated with psychological distress for homosexual persons and may have a negative impact on mental health, including a greater incidence of depression and suicide, lower self-acceptance and a greater likelihood of hiding sexual orientation . . . .’’ [Citations omitted.]), available at http://www.surgeongeneral.gov/library/sexualhealth/call.htm.

Of course, gay persons have been subjected to such severe and sustained discrimination because of our culture’s long-standing intolerance of intimate homosexual conduct. As the United States Supreme Court has recognized, ‘‘[p]roscriptions against [homosexual sodomy] have ancient roots.’’

Bowers v. Hardwick, 478 U.S. 186, 192, 106 S. Ct. 2841, 92 L. Ed. 2d 140 (1986), overruled on other grounds by Lawrence v. Texas, 539 U.S. 558, 123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003); see also High Tech Gays v. Defense Industrial Security Clearance Office, 909 F.2d 375, 382 (9th Cir. 1990) (Canby, J., dissenting) (‘‘mainstream society has mistreated [homosexuals] for centuries’’); Baker v. Wade, 769 F.2d 289, 292 (5th Cir. 1985) (‘‘the strong objection to homosexual conduct . . . has prevailed in Western culture for the past seven centuries’’), cert. denied, 478 U.S. 1022, 106 S. Ct. 3337, 92 L. Ed. 2d 742 (1986).

Much of the condemnation of homosexuality derives from firmly held religious beliefs and moral convictions. See, e.g., Lawrence v. Texas, supra, 571.

Until not long ago, gay persons were widely regarded as deviants in need of treatment to deal with their sexual orientation. See, e.g., Conaway v. Deane, 401 Md. 219, 283–84, 932 A.2d 571 (2007). Moreover, until 2003, when the United States Supreme Court concluded, contrary to its earlier holding in Bowers that consensual homosexual conduct is protected under the due process clause of the fourteenth amendment; see Lawrence v. Texas, supra, 578; such conduct carried criminal penalties in over one quarter of the states. See id., 573; see also Bowers v. Hardwick, supra, 193 (observing that ‘‘until 1961, all [fifty] [s]tates outlawed sodomy’’). Connecticut did not repeal its anti-sodomy law until 1969; Public Acts 1969, No. 828, § 214 (repealing General Statutes [Rev. to 1968]§ 53-216); and, as late as 1986, the court in Bowers noted that twenty-four states and the District of Columbia ‘‘still [made] such conduct illegal and ha[d] done so for a very long time.’’ Bowers v. Hardwick, supra, 190.

It therefore is not surprising that no court ever has refused to treat gay persons as a suspect or quasi-suspect class on the ground that they have not suffered a history of invidious discrimination. See E. Gerstmann, The Constitutional Underclass: Gays, Lesbians, and the Failure of Class-Based Equal Protection (University of Chicago Press 1999) c. 4, p. 66.

There is no question, therefore, that gay persons historically have been, and continue to be, the target of purposeful and pernicious discrimination due solely to their sexual orientation. We therefore turn to the second required factor, namely, whether the sexual orientation of gay persons has any bearing on their ability to participate in society.