The Volokh Conspiracy - Gay Marriage "Loses" in Connecticut:

For the third time in a week, a state court has rejected the claims of gay-marriage litigants. The decision comes from a Connecticut trial court, which granted summary judgment to the state in a suit claiming that the civil unions recognized in Connecticut since last year fall short of marriage, and thus deny the plaintiffs state constitutional rights to due process and equal protection. It's a trial court decision, so it's hard to get very excited about it. Nonetheless, it deals with some interesting issues that are going to come up again.

The Connecticut ruling is not a decision against gay marriage claims in the same way that the New York Court of Appeals decision last week was. The legislative backdrop in Connecticut and New York could not be more different, since New York has done nothing legislatively to recognize and protect gay families. The trial court reasoned that since the Connecticut legislature has extended all of the rights, benefits, and responsibilities of marriage under state law to same-sex couples they have suffered no harm of constitutional significance. The fact that, for example, people may think of "civil unions" as a lesser status, or that same-sex couples may have to explain to people what the term "civil union" means, did not cause the kind of injury a court could address. So the court did not even analyze the substantive constitutional claims for gay marriage. And the state did not have to present its interest in having an equivalent status that goes by a different name.

Here's how the court explained its rationale:

[I]t is surely these underlying rights, benefits, and responsibilities with which substantive constitutional law is concerned, rather than with the nomenclature that is used to define these rights. For purposes of the constitution, it is surely the legal aspects of marriage that are of consequence. (p. 14)

As an aside, while I agree with the court that judges should not generally get involved in fine-tuning titles, I'm not so sure that "nomenclature" is always beneath the constitutional radar. I can imagine circumstances in which it might well matter to a claim. Imagine, for instance, that in 1967 Virginia had created "civil unions" for interracial couples with all the rights, benefits, and responsibilities of marriage. It's unlikely that the Supreme Court would have held in this alternative-universe Loving v. Virginia that such a status involved no constitutional injury, regardless of how people perceived the status, such that the state would not even need to explain the reasons for the distinction. Such a case would involve a racial classification, of course, and so would be especially vulnerable in a way that Connecticut civil unions are not, but we reach that analysis only after deciding first that nomenclature can matter. The Connecticut court denies that the difference between "civil unions" and "marriage" even constitutes a "classification."

Beyond that, the decision is interesting in several ways. First, it has to be taken as yet another blow to the position of the Massachusetts high court, which held in an advisory opinion after its Goodridge decision that an alternative status like "civil union" would present a substantial injury to same-sex couples and that the state had no rational interest in maintaining the distinction.

Second, it's worth pondering this question: once a state has decided to grant all of the benefits, rights, and protections of marriage to same-sex couples, what exactly would be its interest in reserving the word "marriage" to opposite-sex couples? The Connecticut court did not address this question since it denied the claim at the threshold injury requirement. The New York rationales for denying gay marriage claims — the greater need for stability in opposite-sex couplings and the reasonableness of preferring opposite-sex parents — would seem an uneasy fit.

Third and most critically, while superficially a victory for the anti-gay-marriage movement, judicial resolutions like the one in Connecticut actually help to preserve legislative compromises that may ultimately make gay marriage possible. If courts start ruling that once a legislature experiments with marriage-lite for gay couples it must go all the way to full marriage for those couples, legislatures will stop experimenting. Given a choice between gay marriage and nothing, many legislatures will choose nothing. But if they can try an intermediate point without risking that a court will say they've undermined the very basis for any further distinction between gay and straight couples, they'll be more likely to start down that road. Denying gay-marriage claims under these circumstances, judges may help the cause of gay marriage.

It's possible that legislatures will create civil unions or domestic partnerships and then further progress will stall. That's a risk of incrementalism. But within a few years, I expect that Connecticut will legislatively grant marriage, including the word, to same-sex couples. This will come after a few years of seeing that formally recognizing gay couples, and protecting their families fully in the law, has done no harm. It will come after people have had time to adjust to the idea. Gay-marriage advocates need not sue for something that seems likely to come within a few years by legislative action. A little patience could go a long way just now.

	[Dale Carpenter, July 14, 2006 at 12:33pm] Trackbacks Gay Marriage "Loses" in Connecticut: For the third time in a week, a state court has rejected the claims of gay-marriage litigants. The decision comes from a Connecticut trial court, which granted summary judgment to the state in a suit claiming that the civil unions recognized in Connecticut since last year fall short of marriage, and thus deny the plaintiffs state constitutional rights to due process and equal protection. It's a trial court decision, so it's hard to get very excited about it. Nonetheless, it deals with some interesting issues that are going to come up again. The Connecticut ruling is not a decision against gay marriage claims in the same way that the New York Court of Appeals decision last week was. The legislative backdrop in Connecticut and New York could not be more different, since New York has done nothing legislatively to recognize and protect gay families. The trial court reasoned that since the Connecticut legislature has extended all of the rights, benefits, and responsibilities of marriage under state law to same-sex couples they have suffered no harm of constitutional significance. The fact that, for example, people may think of "civil unions" as a lesser status, or that same-sex couples may have to explain to people what the term "civil union" means, did not cause the kind of injury a court could address. So the court did not even analyze the substantive constitutional claims for gay marriage. And the state did not have to present its interest in having an equivalent status that goes by a different name. Here's how the court explained its rationale: [I]t is surely these underlying rights, benefits, and responsibilities with which substantive constitutional law is concerned, rather than with the nomenclature that is used to define these rights. For purposes of the constitution, it is surely the legal aspects of marriage that are of consequence. (p. 14) As an aside, while I agree with the court that judges should not generally get involved in fine-tuning titles, I'm not so sure that "nomenclature" is always beneath the constitutional radar. I can imagine circumstances in which it might well matter to a claim. Imagine, for instance, that in 1967 Virginia had created "civil unions" for interracial couples with all the rights, benefits, and responsibilities of marriage. It's unlikely that the Supreme Court would have held in this alternative-universe Loving v. Virginia that such a status involved no constitutional injury, regardless of how people perceived the status, such that the state would not even need to explain the reasons for the distinction. Such a case would involve a racial classification, of course, and so would be especially vulnerable in a way that Connecticut civil unions are not, but we reach that analysis only after deciding first that nomenclature can matter. The Connecticut court denies that the difference between "civil unions" and "marriage" even constitutes a "classification." Beyond that, the decision is interesting in several ways. First, it has to be taken as yet another blow to the position of the Massachusetts high court, which held in an advisory opinion after its Goodridge decision that an alternative status like "civil union" would present a substantial injury to same-sex couples and that the state had no rational interest in maintaining the distinction. Second, it's worth pondering this question: once a state has decided to grant all of the benefits, rights, and protections of marriage to same-sex couples, what exactly would be its interest in reserving the word "marriage" to opposite-sex couples? The Connecticut court did not address this question since it denied the claim at the threshold injury requirement. The New York rationales for denying gay marriage claims — the greater need for stability in opposite-sex couplings and the reasonableness of preferring opposite-sex parents — would seem an uneasy fit. Third and most critically, while superficially a victory for the anti-gay-marriage movement, judicial resolutions like the one in Connecticut actually help to preserve legislative compromises that may ultimately make gay marriage possible. If courts start ruling that once a legislature experiments with marriage-lite for gay couples it must go all the way to full marriage for those couples, legislatures will stop experimenting. Given a choice between gay marriage and nothing, many legislatures will choose nothing. But if they can try an intermediate point without risking that a court will say they've undermined the very basis for any further distinction between gay and straight couples, they'll be more likely to start down that road. Denying gay-marriage claims under these circumstances, judges may help the cause of gay marriage. It's possible that legislatures will create civil unions or domestic partnerships and then further progress will stall. That's a risk of incrementalism. But within a few years, I expect that Connecticut will legislatively grant marriage, including the word, to same-sex couples. This will come after a few years of seeing that formally recognizing gay couples, and protecting their families fully in the law, has done no harm. It will come after people have had time to adjust to the idea. Gay-marriage advocates need not sue for something that seems likely to come within a few years by legislative action. A little patience could go a long way just now.