3:13-cv-01159 #31

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION VALERIA TANCO and
SOPHY JESTY, IJPE DeKOE and THOMAS KOSTURA, KELLIE MILLER and VANESSA DEVILLEZ, and JOHNO ESPEJO and MATTHEW MANSELL, Plaintiffs, v. HASLAM, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) )
Case No. 3:13-cv-01159 Judge Aleta A. Trauger
APPENDIX TO MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
Pursuant to Local Rule 7.01(e), Plaintiffs submit copies of the following unreported federal cases and state cases other than Tennessee cases cited in their Memorandum of Law in Support of Motion for Preliminary Injunction, listed in order of reference in the Memorandum: 1. 2. 3. 4. 5. 6. 7. Obergefell v. Kasich, No. 1:13-CV-501, 2013 WL 3814262 (S.D. Ohio July 22, 2013). Garden State Equality v. Dow, __A.3d. __, 2013 WL 5687193 (N.J. Oct. 18, 2013). Jones v. Hamilton Cnty Govt, Tenn., No. 12-6079, 2013 WL 3766656 (6th Cir. July 19, 2013). In re Lenherrs Estate, 314 A.2d 255 (Pa. 1974). Kerrigan v. Commr of Pub. Health, 957 A.2d 407 (Conn. 2008). Varnum v. Brien, 736 N.W.2d 862 (Iowa 2009). Dean v. District of Columbia, 653 A.2d 307 (D.C. 1995).
654768.1 10074-001
Case 3:13-cv-01159 Document 31 Filed 11/19/13 Page 1 of 3 PageID #: 166
Dated: November 19, 2013 Respectfully submitted,
/s/ Abby R. Rubenfeld Abby R. Rubenfeld (B.P.R. No. 6645) RUBENFELD LAW OFFICE, PC 2409 Hillsboro Road, Suite 200 Nashville, Tennessee 37212 Tel.: (615) 386-9077 Fax: (615) 386-3897 arubenfeld@rubenfeldlaw.com
/s/ Maureen T. Holland Maureen T. Holland (B.P.R. No. 15202) HOLLAND AND ASSOCIATES, PLLC 1429 Madison Avenue Memphis, Tennessee 38104-6314 Tel.: (901) 278-8120 Fax: (901) 278-8125 mtholland@aol.com Admitted Pro Hac Vice /s/ Regina M. Lambert Regina M. Lambert (B.P.R. No. 21567) REGINA M. LAMBERT, ESQ. 7010 Stone Mill Drive Knoxville, Tennessee 37919 (865) 679-3483 (865) 558-8166 lambertregina@yahoo.com Admitted Pro Hac Vice
/s/ William L. Harbison William L. Harbison (B.P.R. No. 7012) Phillip F. Cramer (B.P.R. No. 20697) J. Scott Hickman (B.P.R. No. 17407) John L. Farringer IV (B.P.R. 22783) SHERRARD & ROE, PLC 150 3rd Avenue South, Suite 1100 Nashville, Tennessee 37201 Tel.: (615) 742-4200 bharbison@sherrardroe.com pcramer@sherrardroe.com shickman@sherrardroe.com jfarringer@sherrardroe.com
/s/ Shannon P. Minter Shannon P. Minter (CA Bar No. 168907) Christopher F. Stoll (CA Bar No. 179046) Asaf Orr (CA Bar No. 261650) NATIONAL CENTER FOR LESBIAN RIGHTS 870 Market Street, Suite 370 San Francisco, California 94102 Tel.: (415) 392-6257 Fax: (415) 392-8442 sminter@nclrights.org cstoll@nclrights.org aorr@nclrights.org Admitted Pro Hac Vice Attorneys for Plaintiffs
654768.1 10074-001
CERTIFICATE OF SERVICE Service of the foregoing was accomplished through the Courts Electronic Filing System this 19 day of November, 2013, upon the following:
th
Martha A. Campbell Kevin G. Steiling Tennessee Attorney Generals Office General Civil Division Cordell Hull Building, Second Floor P. O. Box 20207 Nashville, Tennessee 37214 martha.campbell@ag.tn.gov kevin.steiling@ag.tn.gov Attorneys for Defendants
/s/ William L. Harbison
654768.1 10074-001
Obergefell v. Kasich, Slip Copy (2013)
2013 WL 3814262 Only the Westlaw citation is currently available. United States District Court, S.D. Ohio, Western Division. James OBERGEFELL, et al., Plaintiffs, v. John KASICH, et al., Defendants. No. 1:13cv501. | July 22, 2013. Attorneys and Law Firms Alphonse Adam Gerhardstein, Jacklyn Gonzales Martin, Jennifer Lynn Branch, Gerhardstein & Branch Co. LPA, Cincinnati, OH, for Plaintiffs. Bridget C. Coontz, Kristopher J. Armstrong, Ohio Attorney Generals Office, Columbus, OH, Aaron Mark Herzig, Terrance A. Nestor, City of Cincinnati, Cincinnati, OH, for Defendants. Opinion
not recognize? The short answer is that Ohio cannot ... at least not under the circumstances here. By treating lawful same sex marriages differently than it treats lawful opposite sex marriages (e.g., marriages of first cousins and marriages of minors), Ohio law, as applied to these Plaintiffs, likely violates the United States Constitution which guarantees that No State shall make or enforce any law which shall ... deny to any person within its jurisdiction equal protection of the laws. The end result here and now is that the local Ohio Registrar of death certificates is hereby ORDERED not to accept for recording a death certificate for John Arthur that does not record Mr. Arthurs status at death as married and James Obergefell as his surviving spouse.
I. AGREED FACTS AND CIRCUMSTANCES Less than a month ago, on June 26, 2013, the United States Supreme Court issued its historic decision in United States v. Windsor, U.S. , 133 S.Ct. 2675, L.Ed.2d (2013). The Supreme Court held that the federal Defense of Marriage Act (DOMA), which denied recognition to same-sex marriages for purposes of federal law, was unconstitutional, as it denied fundamental fairness and equal protection of the law to gay citizens. While the holding in Windsor is ostensibly limited to a finding that the federal government cannot refuse to recognize state laws authorizing same sex marriage, the issue whether States can refuse to recognize out-of-state same sex marriages is now surely headed to the fore. Indeed, just as Justice Scalia predicted in his animated dissent, by virtue of the present lawsuit, the state-law shoe has now dropped in Ohio. Windsor, 133 S.Ct. at 267778. Plaintiffs James Obergefell and John Arthur are male Cincinnati residents who have been living together in a committed and intimate relationship for more than twenty years, and they were very recently legally married in the state of Maryland pursuant to the laws of Maryland recognizing same sex marriage. Mr. Arthur is currently a hospice patient. He is dying of amyotrophic lateral sclerosis (ALS). ALS is a progressive disease that has caused Mr. Arthur severe and worsening muscle deterioration, has no known cure, and is fatal. 1
ORDER GRANTING PLAINTIFFS MOTION FOR A TEMPORARY RESTRAINING ORDER TIMOTHY S. BLACK, District Judge. *1 This is not a complicated case. The issue is whether the State of Ohio can discriminate against same sex marriages lawfully solemnized out of state, when Ohio law has historically and unambiguously provided that the validity of a marriage is determined by whether it complies with the law of the jurisdiction where it was celebrated. Throughout Ohios history, Ohio law has been clear: a marriage solemnized outside of Ohio is valid in Ohio if it is valid where solemnized. Thus, for example, under Ohio law, out-of-state marriages between first cousins are recognized by Ohio, even though Ohio law does not authorize marriages between first cousins. Likewise, under Ohio law, out of state marriages of minors are recognized by Ohio, even though Ohio law does not authorize marriages of minors. How then can Ohio, especially given the historical status of Ohio law, single out same sex marriages as ones it will
2013 Thomson Reuters. No claim to original U.S. Government Works.
Case 3:13-cv-01159 Document 31-1 Filed 11/19/13 Page 1 of 6 PageID #: 169
*2 On July 11, 2013, Plaintiffs traveled to Maryland in a special jet equipped with medical equipment and a medical staff necessary to serve Mr. Arthurs needs, whereupon Plaintiffs were married in the jet as it sat on the tarmac in Anne Arundel County, Maryland. They returned to Cincinnati that same day. Plaintiffs marriage is legally recognized in Maryland and by the federal government by virtue of the very recent and historic decision of the United States Supreme Court in United States v. Windsor, U.S. , 133 S.Ct. 2675, L.Ed.2d (2013). Plaintiffs marriage is not recognized in Ohio, as legal recognition of same-sex marriages is prohibited by Ohio law enacted in 2004. See Ohio Rev.Code. 3101.01(C)(2) & (3) and Ohio Constitution Art. XV, 11. Mr. Arthur is certain to die soon. Consistent with Ohio law, his death record will list his marital status at time of death as unmarried and will not record Mr. Obergefell as the surviving spouse.
the appropriateness of preliminary injunctive relief. Tate v. Frey, 735 F.2d 986, 990 (6th Cir.1984). Plaintiffs bear the burden of demonstrating their entitlement to a preliminary injunction, and an injunction is an extraordinary remedy which should be granted only if the movant carries his or her burden of proving that the circumstances clearly demand it. Overstreet, 305 F.3d at 513. In the Sixth Circuit, [t]he standard for issuing a temporary restraining order is logically the same as for a preliminary injunction with emphasis, however, on irreparable harm[.] Reid v. Hood, No. 1:10 CV 2842, 2011 U.S. Dist. LEXIS 7631, at *2, 2011 WL 251437 (N.D. Ohio Jan 26, 2011) (citing Motor Vehicle Bd. of Calif. v. Fox, 434 U.S. 1345, 1347 n. 2, 98 S.Ct. 359, 54 L.Ed.2d 439 (1977)). Moreover, [a]lthough no one factor is controlling, a finding that there is simply no likelihood of success on the merits is usually fatal. Gonzales v. Natl Bd. of Med. Examrs, 225 F.3d 620, 625 (6th Cir.2000). *3 Even if the court is not certain that a plaintiff is likely to succeed on the merits, a preliminary injunction is still appropriate where the plaintiff shows serious questions going to the merits and irreparable harm which decidedly outweighs any potential harm to the defendant or if the merits present a sufficiently serious question to justify further investigation. In re DeLorean Motor Co., 755 F.2d 1223, 122930 (6th Cir.1985) (quoting Friendship Materials, Inc. v. Michigan Brick, Inc., 679 F.2d 100, 105 (6th Cir.1982)).
II. PLAINTIFFS MOTION Plaintiffs seek an order of this Court declaring unconstitutional the Ohio laws forbidding recognition of legal same sex marriages from other states and requiring the Registrar of Ohio death certificates to record John Arthur as married and to record James Obergefell as his surviving spouse at the time of Mr. Arthurs death, which is imminent.
IV. ANALYSIS The Fourteenth Amendment to the Constitution of the United States provides that No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. U.S. Const. Amend. XIV. Plaintiffs, a same-sex couple, are legally married in Maryland. They reside in Ohio where their marriage is not recognized as valid. They are treated differently than they would be if they were in a comparable opposite-sex marriage. By treating lawful same sex marriages differently than it treats lawful opposite sex marriages (e.g., marriages of first cousins and marriages of minors), Plaintiffs assert that the Ohio laws barring recognition of out-of-state same sex marriages, enacted in 2004, violate 2
III. STANDARD OF REVIEW In determining whether to grant injunctive relief, this Court must weigh four factors: (1) whether the moving party has shown a strong likelihood of success on the merits; (2) whether the moving party will suffer irreparable harm if the injunction is not issued; (3) whether the issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuing the injunction. Overstreet v. LexingtonFayette Urban County Govt, 305 F.3d 566, 573 (6th Cir.2002). These four considerations are factors to be balanced, not prerequisites that must be met. McPherson v. Michigan High Sch. Athletic Assn, Inc., 119 F.3d 453, 459 (6th Cir.1997), and there is no rigid and comprehensive test for determining
equal protection. Although the law has long recognized that marriage and domestic relations are matters generally left to the states, see Ex parte Burrus, 136 U.S. 586, 59394, 10 S.Ct. 850, 34 L.Ed. 500 (1890), the restrictions imposed on marriage by states, however, must nonetheless comply with the Constitution. Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967) (statute limiting marriage to same-race couples violated equal protection and due process); Zablocki v. Redhail, 434 U.S. 374, 383, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978) (statute restricting from marriage persons owing child support violated equal protection). In Windsor, the Supreme Court again applied the principle of equal protection to a statute restricting marriage when it reviewed the constitutionality of the federal Defense of Marriage Act (DOMA), which denied recognition to same-sex marriages for purposes of federal law. This included marriages from the twelve states and District of Columbia in which same-sex couples could legally marry. The Supreme Court held that the federal law was unconstitutional because it violated equal protection and due process principles guaranteed by the Fifth Amendment. Windsor, 133 S.Ct. at 2675. In reality, the decision of the United States Supreme Court in Windsor was not unprecedented as the Supreme Court relied upon its equal protection analysis from an earlier case, where, in 1996, the Court held that an amendment to a state constitution, ostensibly just prohibiting any special protections for gay people, in truth violated the Equal Protection Clause, under even a rational basis analysis. Romer v. Evans, 517 U.S. 620, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996). *4 In Romer, the Supreme Court struck down Colorados Amendment 2 because, the Court held, [w]e cannot say that Amendment 2 is directed to any identifiable legitimate purpose or discrete objective. It is a status-based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests; it is a classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit. Id. at 635. The Supreme Court deemed this class legislation ... obnoxious to the prohibitions of the Fourteenth Amendment. Id. (quoting Civil Rights Cases, 109 U.S. 3, 24, 3 S.Ct. 18, 27 L.Ed. 835 (1883)). As the Supreme Court in Romer held so succinctly: [Colorado law] classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do. A State cannot
so deem a class of persons a stranger to its laws. Amendment 2 violates the Equal Protection Clause[.] 517 U.S. at 63536. As the Supreme Court explained in striking down DOMA, [t]he avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States. Windsor, 133 S.Ct. at 2693. Similarly, in Windsor, the Supreme Court cited U.S. Dept. of Agriculture v. Moreno, 413 U.S. 528, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973), for the proposition that a legislative desire to harm a politically unpopular group of people cannot justify disparate treatment of that group. Windsor, 133 S.Ct. at 2693. In Moreno, a federal statute prohibiting households containing unrelated persons from qualifying for food stamps was held to be in violation of the Equal Protection Clause under a rational basis analysis. The legislative purpose of the statute was to prohibit hippies from taking advantage of food stamps. The Supreme Court held that the classification here ... is wholly without any rational basis. Moreno, 413 U.S. at 538. Likewise, in Windsor, the Supreme Court held that the purpose of the federal DOMA was to impose inequality, not for other reasons like governmental efficiency. 133 S.Ct. at 2694. Under Supreme Court jurisprudence, states are free to determine conditions for valid marriages, but these restrictions must be supported by legitimate state purposes because they infringe on important liberty interests around marriage and intimate relations. In derogation of law, the Ohio scheme has unjustifiably created two tiers of couples: (1) opposite-sex married couples legally married in other states; and (2) same-sex married couples legally married in other states. This lack of equal protection of law is fatal. As a threshold matter, it is absolutely clear that under Ohio law, from the founding of the State through at least 2004, the validity of an opposite-sex marriage is to be determined by whether it complies with the law of the jurisdiction where it was celebrated. That is, a marriage solemnized outside of Ohio is valid in Ohio if it is valid where solemnized. Thus the leading compendium of Ohio law states: *5 Generally, a marriage solemnized outside of Ohio is valid in Ohio if it is valid where solemnized. Thus, the validity of a common-law marriage is determined by the law of the state where it was consummated, and that of a 3
solemnized marriage by the law of the state where it was contracted. Likewise, a marriage created in a foreign nation is valid according to that nations laws. [ ... ] The fact that the parties to a marriage left the state to marry in order to evade Ohios marriage laws is immaterial to the marriages validity in Ohio. See 45 Ohio Jur.3d Family Law 11. Longstanding Ohio law has been clear: a marriage solemnized outside of Ohio is valid in Ohio if it is valid where solemnized. This legal approach is firmly rooted in the longstanding legal principle of lex loci contractusi.e., the law of the place of the contracting controls. Ohio has adopted this legal approach from its inception as a State. Thus, for example, under Ohio law, as declared by the Supreme Court of Ohio in 1958, out-of-state marriages between first cousins are recognized by Ohio, even though Ohio law does not authorize marriages between first cousins. Mazzolini v. Mazzolini, 168 Ohio St. 357, 155 N.E.2d 206, 208 (Ohio Sup.Ct.1958) (marriage of first cousins was legal in Massachusetts and therefore is legal in Ohio regardless of the Ohio statute to the contrary). Likewise, under Ohio law, out-of-state marriages of minors are recognized by Ohio, even though Ohio law does not authorize marriages of minors. See Hardin v. Davis, 16 Ohio Supp. 19, at *22 (Com. Pl. Hamilton Co. May 18, 1945) (But, although first cousins cannot marry in Ohio, it has been held that if they go to another state where such marriages are allowed, marry, and return to Ohio, the marriage is legal in Ohio); see also Slovenian Mut. Ben. Assn v. Knafej, 36 Ohio App. 562, 173 N.E. 630, 631 (Ohio App.1930) (It is true that, under the laws of Ohio, if she were his first cousin he could not marry her; but they could go to the state of Michigan, or the state of Georgia, and perhaps many other states in the United States, and intermarry, and then come right back into Ohio and the marriage would be legal); see also Peefer v. State, 42 Ohio App. 276, 182 N.E. 117, 121 (Ohio App.1931) (where underage couples leave the state to marry in a state in which their marriage is valid and return to Ohio, the marriage cannot be set aside based on Ohios law against marriage of underage people); see also Courtright v. Courtright, 1891 Ohio Misc. LEXIS 161, at *7, 1891 WL 1022 , affd without opinion, 53 Ohio 685 (Ohio 1895) (marriage between persons considered underage in Ohio married in a state where their marriage is legal cannot be set aside, either because it was not contracted in accordance with the law of this state, or because the parties went out of the state for the purpose of evading the laws of this state).
Quintessentially, Plaintiffs have established a substantial likelihood that they will prevail at trial on their claim that by treating lawful same sex marriages differently than it treats lawful opposite sex marriages (e.g., marriages of first cousins and marriages of minors), Ohio law, as applied here, violates the United States Constitution which guarantees that No State shall make or enforce any law which shall ... deny to any person within its jurisdiction equal protection of the laws. *6 Moreover, as the United States Supreme Court found in Windsor, there is no legitimate state purpose served by refusing to recognize same-sex marriages celebrated in states where they are legal. Instead, as in Windsor, and at least on this early record here, the very purpose of the Ohio provisions, enacted in 2004, is to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States. Windsor, 133 S.Ct. at 2693. The purpose served by treating same-sex married couples differently than opposite-sex married couples is the same improper purpose that failed in Windsor and in Romer: to impose inequality and to make gay citizens unequal under the law. See Windsor, 133 S.Ct. at 2694; see Romer, 517 U.S. at 63536. It is beyond cavil that it is constitutionally prohibited to single out and disadvantage an unpopular group. Even if there were proffered some attendant governmental purpose to discriminate against gay couples, other than to effect pure animus, it is difficult to imagine how it could outweigh the severe burden imposed by the ban imposed on same-sex couples legally married in other states. Families deserve the highest level of protection under the First Amendment right of association: Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions. Zablocki v. Redhail, 434 U.S. 374, 384, 98 S.Ct. 673, 54 L.Ed.2d 618, (1978) (citing Griswold v. Connecticut, 381 U.S. 479, 486, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965)). Even if the classification of same-sex couples legally 4
married in other states is reviewed under the least demanding rational basis test, this Court on this record cannot find a rational basis for the Ohio provisions discriminating against lawful, out-ofstate same sex marriages that is not related to the impermissible expression of disapproval of same-sex married couples. Consequently, Plaintiffs have demonstrated a strong likelihood of success on the merits. Moreover, denying Plaintiffs their associational rights under the circumstances presented here imposes irreparable harm. Constitutional violations are routinely recognized as triggering irreparable harm unless they are promptly remedied. See, e.g., Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) (loss of constitutional freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury). As stated, rights associated with marriage are fundamental. Zablocki, 434 U.S. at 374. Thus, this Court has routinely concluded that Plaintiffs will suffer irreparable harm if the Court does not issue the injunction because of the threatened infringement of the Plaintiffs fundamental rights. See, e.g., Equal. Found. of Greater Cincinnati, Inc. v. City of Cincinnati, 838 F.Supp. 1235, 124243 (S.D.Ohio 1993) revd and vacated, 54 F.3d 261 (6th Cir.1995) cert. granted, judgment vacated, 518 U.S. 1001, 116 S.Ct. 2519, 135 L.Ed.2d 1044 (1996). In fact, when an alleged deprivation of a constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary. 11A Fed. Prac. & Proc. Civ. 2948.1 (2d ed.).1 *7 In addition to the alleged denial of Plaintiffs constitutional rights, the Court must also consider the fact that Mr. Arthur is in hospice care and death is imminent. Without a temporary restraining order, the official record of Mr. Arthurs death, and the last official document recording his existence on earth, will incorrectly classify him as unmarried, despite his legal marriage to Mr. Obergefell. The death certificate will also incorrectly fail to record Mr. Obergefell as the surviving spouse, which status he lawfully enjoys. Furthermore, Mr. Arthur wants to be buried in his family plot at Spring Grove Cemetery. He also wants Mr. Obergefell to be buried next to him someday. The family plot directive limits those who may be interred in the plot to descendants and married spouses. Thus, without a temporary restraining order, Mr. Arthurs burial may be delayed or his remains may have to be exhumed when this case is finally decided. See Yankton Sioux Tribe v. U.S. Army Corps of Engineers, 209 F.Supp.2d 1008, 1022 (D.S.D.2002) (disruption of human remains can be irreparable harm).
Finally, the uncertainty around this issue during Mr. Arthurs final illness is the cause of extreme emotional hardship to the couple. Dying with an incorrect death certificate that prohibits Mr. Arthur from being buried with dignity constitutes irreparable harm. Furthermore, Mr. Arthurs harm is irreparable because his injury is present now, while he is alive. A later decision allowing an amendment to the death certificate cannot remediate the harm to Mr. Arthur, as he will have passed away. Moreover, there is absolutely no evidence that the State of Ohio or its citizens will be harmed by the issuance of an order temporarily restraining the enforcement of these provisions against the Plaintiffs in this case. No one beyond Plaintiffs themselves will be affected by such a limited order at all. Without an injunction, however, the harm to Plaintiffs is severe. Plaintiffs are not currently accorded the same dignity and recognition as similarly situated opposite-sex couples. Moreover, upon Mr. Arthurs death, Plaintiffs legally valid marriage will be incorrectly recorded in Ohio as not existing. Balanced against this severe and irreparable harm to Plaintiffs is the truth that there is no evidence in the record that the issuance of a preliminary injunction would cause substantial harm to the public. And, as a final consideration, the public interest is promoted by the robust enforcement of constitutional rights. Am. Freedom Def. Initiative v. Suburban 15 Mobility for Reg. Transp., 698 F.3d 885, 896 (6th Cir.2012). Weighing all factors applicable to analyzing whether injunctive relief should issue, the Court finds that each factor supports the granting of a temporary restraining order.
V. CONCLUSION This Court finds that Plaintiffs have established by clear and convincing evidence their entitlement to injunctive relief. Accordingly, Plaintiffs motion for a temporary restraining order (Doc. 3) is GRANTED, and a temporary restraining order shall issue by separate order, directing, inter alia, that the local Ohio Registrar of death certificates is hereby ORDERED not to accept for recording a death certificate for John Arthur which does not record his status as married and/or does not record James Obergefell as Mr. Arthurs surviving spouse at the time of Mr. Obergefells death, which is imminent. *8 IT IS SO ORDERED.
Footnotes
1
See, e.g., Overstreet, 305 F.3d at 578 (6th Cir.2002) (a plaintiff can demonstrate that a denial of an injunction will cause irreparable harm if the claim is based upon a violation of plaintiffs constitutional rights); ACLU of KY. v. McCreary County, Kentucky, 354 F.3d 438, 445 (6th Cir.2003) (if it is found that a constitutional right is being threatened or impaired, a finding of irreparable injury is mandated); Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir.1998) (recognizing that the loss of First Amendment rights, for even a minimal period of time, constitutes irreparable harm) (citations omitted); Council of Alternative Political Parties v. Hooks, 121 F.3d 876 (3rd Cir.1997) (denial of preliminary injunctive relief was irreparable harm to plaintiffs voting and associational rights); Covino v. Patrissi, 967 F.2d 73, 77 (2d Cir.1992) (holding that plaintiffs may establish irreparable harm based on an alleged violation of their Fourth Amendment rights); McDonell v. Hunter, 746 F.2d 785, 787 (8th Cir.1984) (finding that a violation of privacy constitutes an irreparable harm); Mitchell v. Cuomo, 748 F.2d 804, 806 (2d Cir.1984) (holding allegation of violation of Eighth Amendment rights sufficient showing of irreparable harm); Doe v. Mundy, 514 F.2d 1179 (7th Cir.1975) (denial of constitutional privacy right was irreparable harm); Beerheide v. Zavaras, 997 F.Supp. 1405 (D.C.Colo.1998) (irreparable harm satisfied by allegation of deprivation of free exercise of religion).
End of Document
Garden State Equality v. Dow, --- A.3d ---- (2013)
[1]
State would not suffer irreparable harm without stay;
2013 WL 5687193 Only the Westlaw citation is currently available. Supreme Court of New Jersey. GARDEN STATE EQUALITY; Daniel Weiss and John Grant; Marsha Shapiro and Louise Walpin; Maureen Kilian and Cindy Meneghin; Sarah KilianMeneghin, a minor, by and through her guardians; Erica and Tevonda Bradshaw; Teverico Barack Hayes Bradshaw; a minor, by and through his guardians; Marcye and Karen NicholsonMcFadden; Kasey NicholsonMcFadden; a minor, by and through his guardians; Maya NicholsonMcFadden; a minor, by and through her guardians; Thomas Davidson and Keith Heimann; Marie Heimann Davidson, a minor, by and through her guardians; Grace Heimann Davidson, a minor, by and through her guardians; PlaintiffsRespondents, v. Paula DOW, in her official capacity as Attorney General of New Jersey; Jennifer Velez, in her official capacity as Commissioner of the New Jersey Department of Human Services, and Mary E. ODowd, in her official capacity as Commissioner of the New Jersey Department of Health and Senior Services, DefendantsMovants. Oct. 18, 2013.
State did not show a reasonable probability or likelihood of success on the merits;
[3]
[2]
balance of hardships did not favor granting stay; and public interest did not support grant of stay.
[4]
Motion denied.
West Headnotes (12)

[1]
Appeal and Error Application and proceedings thereon To evaluate an application for a stay pending appeal, Supreme Court in essence considers the soundness of the trial courts ruling and the effect of a stay on the parties and the public.
[2]
Synopsis SYNOPSIS Background: Six same-sex couples, their children, and advocacy group brought action against Attorney General and the Commissioners of Departments of Human Services (DHS) and Health and Senior Services (HSS), alleging that civil-union status provided under Civil Union Act did not provide equal treatment to same-sex couples. The Superior Court, Law Division, Mercer County, Mary C. Jacobson, J., 2013 WL 5397372, entered summary judgment in favor of plaintiffs, and denied defendants motion for stay pending appeal. State appealed and sought direct certification, which was granted.
Appeal and Error Upon Allowance by Court or Judge A party seeking a stay pending appeal must demonstrate that (1) relief is needed to prevent irreparable harm, (2) the applicants claim rests on settled law and has a reasonable probability of succeeding on the merits, and (3) balancing the relative hardships to the parties reveals that greater harm would occur if a stay is not granted than if it were.
[3]
Appeal and Error Application and proceedings thereon The party moving for a stay pending appeal has the burden to prove each of the factors for obtaining such relief by clear and convincing 1
Holdings: The Supreme Court, Rabner, C.J., held that:
evidence.
[7] [4]
Appeal and Error Grounds for Allowance In acting only to preserve the status quo, the court considering a motion for stay pending appeal may place less emphasis on a particular factor for determining whether such relief is warranted if another greatly requires the issuance of the remedy.
Constitutional Law Marriage and civil unions Marriage Same-Sex and Other Non-Traditional Unions Because the Civil Union Act offers same-sex couples civil unions, but not the option of marriage, and federal agencies provided federal benefits only to married same-sex couples, same-sex couples in New Jersey are deprived of the full rights and benefits the State Constitution guarantees in the Equal Protection Clause. N.J.S.A. Const. Art. 1, par. 1; N.J.S.A. 37:128 et seq.
[5]
Appeal and Error Grounds for Allowance

[8]
When a case presents an issue of significant public importance, a court must consider the public interest in addition to the traditional factors for determining whether a stay pending appeal is warranted.
Appeal and Error Grounds for Allowance State did not show a reasonable probability or likelihood of success on the merits, as required for stay pending appeal of trial court order granting summary judgment in favor of same-sex couples, their children, and advocacy group, in their action alleging that civil-union status provided under Civil Union Act did not satisfy Equal Protection Clause; in light of federal agencies practice of providing federal benefits to only married same-sex couples, Civil Union Act no longer achieved purpose of providing full and equal rights and benefits to same-sex couples, federal agencies followed New Jersey rule about who could marry, and States statutory scheme effectively denied committed same-sex partners in New Jersey the ability to receive federal benefits afforded to married partners. N.J.S.A. Const. Art. 1, par. 1; N.J.S.A. 37:128 et seq.
[6]
Appeal and Error Grounds for Allowance State would not suffer irreparable harm in absence of a stay pending appeal of trial court order granting summary judgment in favor of same-sex couples, their children, and advocacy group, in their action alleging that civil-union status provided under Civil Union Act did not satisfy Equal Protection Clause; trial court did not strike down the Civil Union Act, but instead directed the State to allow the couples to enter into civil marriage, and if the plaintiffs were not ultimately successful in their action, county clerks could have been ordered to stop issuing marriage licenses to same-sex couples and taken steps to nullify licenses that were issued. N.J.S.A. Const. Art. 1, par. 1; N.J.S.A. 37:128 et seq.
[9]
Appeal and Error Grounds for Allowance Balance of hardships did not favor granting stay 2
pending appeal of trial court order granting summary judgment in favor of same-sex couples, their children, and advocacy group, in their action alleging that civil-union status provided under Civil Union Act did not satisfy Equal Protection Clause; although the State identified certain abstract harms, those harms were weighed against immediate and concrete violations of the equal protection rights of the couples and their children. N.J.S.A. Const. Art. 1, par. 1; N.J.S.A. 37:128 et seq.
treatment, and asks the court to vindicate constitutionally protected rights, a court may not sidestep its obligation to rule for an indefinite amount of time.
West Codenotes Held Unconstitutional N.J.S.A. 37:128, 37:133
[10]
Appeal and Error Grounds for Allowance Public interest did not support grant of stay pending States appeal of trial court order granting summary judgment in favor of same-sex couples, their children, and advocacy group, in their action alleging that civil-union status provided under Civil Union Act did not satisfy Equal Protection Clause; there was no public interest in depriving a group of New Jersey residents of their constitutional right to equal protection while the appeals process unfolded. N.J.S.A. Const. Art. 1, par. 1; N.J.S.A. 37:128 et seq.
Recognized as Unconstitutional 1 U.S.C.A. 7 On a motion for stay pending appeal. Attorneys and Law Firms Jean P. Reilly, Deputy Attorney General, submitted a brief on behalf of movants (John J. Hoffman, Acting Attorney General, attorney; Kevin R. Jesperson, Assistant Attorney General, of counsel; Ms. Reilly and Robert T. Lougy, Assistant Attorney General, on the briefs). Lawrence S. Lustberg submitted a brief on behalf of respondents (Gibbons and Lambda Legal, attorneys; Mr. Lustberg, Benjamin Yaster and Hayley J. Gorenberg, a member of the New York bar, on the brief). Opinion
[11]
Courts Discretion as to Exercise of Jurisdiction When courts face questions that have far-reaching social implications, there is a benefit to letting the political process and public discussion proceed first.
Chief Justice RABNER delivered the opinion of the Court. *1 In 2006, this Court unanimously held that the New Jersey Constitution guarantees same-sex couples in committed relationships the same rights and benefits as married couples of the opposite sex. Lewis v. Harris, 188 N.J. 415, 423, 908 A.2d 196 (2006). In response, the Legislature passed the Civil Union Act and established civil unions. N.J.S.A. 37:128 to 36. Civil unions are meant to guarantee the rights and benefits of marriage, but the law does not allow same-sex partners to marry. N.J.S.A. 37:128, 33. Plaintiffs filed a lawsuit in 2011 and alleged that civil-union status fails to provide equal treatment to same-sex couples. Plaintiffs are Garden State Equality, an advocacy group, and six same-sex couples and their children. 3
[12]
Constitutional Law Necessity of Determination Courts should avoid reaching constitutional questions unless required to do so; but, when a party presents a clear case of ongoing unequal
The Supreme Courts recent ruling in United States v. Windsor, 570 U.S. , 133 S.Ct. 2675, 186 L.Ed.2d 808 (2013), changed the contour of the pending lawsuit. In Windsor, the Supreme Court struck down part of the federal Defense of Marriage Act (DOMA). Id. at , 133 S.Ct. at 2696, 186 L.Ed.2d at 830. The Court held that DOMA violated the federal Constitution by denying lawfully married same-sex couples the benefits given to married couples of the opposite sex. Ibid. Plaintiffs moved for summary judgment in this case after the decision in Windsor. On September 27, 2013, the Honorable Mary C. Jacobson, Assignment Judge of the Superior Court for the Mercer Vicinage, issued a comprehensive, 53page decision and granted plaintiffs motion. Judge Jacobson found that in the wake of Windsor, civil-union partners are being denied equal access to federal benefits because of the label placed on their relationship. The trial court therefore held that the State must extend the right to civil marriage to same-sex couples. An accompanying order directed that beginning on October 21, 2013, State officials must allow same-sex couples, who otherwise qualify for civil marriage, to marry in New Jersey. The Attorney General, acting on behalf of the named defendants, moved for a stay of the trial courts order. Judge Jacobson denied the motion, and the State now appeals. On October 11, 2013, we granted the States motion for direct certification and took jurisdiction over the stay motion. At the heart of this motion are certain core facts and principles. Lewis guaranteed same-sex couples equal rights under the State Constitution. After Windsor, a number of federal agencies extended marital benefits to same-sex couples who are lawfully married, but not to partners in civil unions. As a result, civil-union partners in New Jersey today do not receive the same benefits as married same-sex couples when it comes to family and medical leave, Medicare, tax and immigration matters, military and veterans affairs, and other areas. The State Constitutions guarantee of equal protection is therefore not being met. To evaluate an application for a stay, this Court in essence considers the soundness of the trial courts ruling and the effect of a stay on the parties and the public. See Crowe v. De Gioia, 90 N.J. 126, 447 A.2d 173 (1982). Largely for the reasons stated in Judge Jacobsons opinion dated October 10, 2013, we deny the States motion for a stay. The State has advanced a number of arguments, but none of them overcome this reality: same-sex couples
[1]
who cannot marry are not treated equally under the law today. The harm to them is real, not abstract or speculative. *2 Because, among other reasons, the State has not shown a reasonable probability of success on the merits, the trial courts orderdirecting State officials to permit same-sex couples, who are otherwise eligible, to enter into civil marriage starting on October 21, 2013remains in effect.
I.
[2] [3] [4]
Applications for a stay pending appeal are governed by the familiar standard outlined in Crowe. See, e.g., In re Commr of Ins. Deferring Certain Claim Payments by N.J.A.F.I.U.A., 256 N.J.Super. 553, 560, 607 A.2d 992 (App.Div.1992). A party seeking a stay must demonstrate that (1) relief is needed to prevent irreparable harm; (2) the applicants claim rests on settled law and has a reasonable probability of succeeding on the merits; and (3) balancing the relative hardships to the parties reveals that greater harm would occur if a stay is not granted than if it were. McNeil v. Legis. Apportionment Commn, 176 N.J. 484, 486, 825 A.2d 1124 (2003) (LaVecchia, J., dissenting) (citing Crowe, supra, 90 N.J. at 13234, 447 A.2d 173). The moving party has the burden to prove each of the Crowe factors by clear and convincing evidence. Brown v. City of Paterson, 424 N.J.Super. 176, 183 (App.Div.2012) (citation omitted). In acting only to preserve the status quo, the court may place less emphasis on a particular Crowe factor if another greatly requires the issuance of the remedy. Ibid. (citation omitted).
When a case presents an issue of significant public importance, a court must consider the public interest in addition to the traditional Crowe factors. McNeil, supra, 176 N.J. at 484, 825 A.2d 1124.
[5]
II. To provide the necessary backdrop for this motion, we briefly review the principal case law and the Civil Union Act. In Lewis, supra, seven same-sex couples applied for marriage licenses. 188 N.J. at 42324, 908 A.2d 196. Different municipalities denied the requests because State law confined marriage to opposite-sex couples. Id. at 424, 4
908 A.2d 196. The couples sued State officials and challenged the constitutionality of the States marriage laws. Ibid. The couples argued that the laws violated the equal protection guarantee of Article I, Paragraph 1 of the New Jersey Constitution, id. at 427, 908 A.2d 196, which declares that all persons possess unalienable rights to enjoy life, liberty, and property, and to pursue happiness. After reviewing various rights afforded to married but not same-sex couples, id. at 44849, 908 A.2d 196, the Court concluded that the States domestic partnership laws failed to bridge the inequality gap, id. at 448, 908 A.2d 196. Because the Court could not find a legitimate public need for an unequal legal scheme of benefits and privileges that disadvantage[d] committed same-sex couples, id. at 453, 908 A.2d 196, the Court held that the disparity violated the Constitutions guarantee of equal protection, id. at 423, 908 A.2d 196. The Court therefore directed the State to provide to committed same-sex couples, on equal terms, the full rights and benefits enjoyed by heterosexual married couples. Id. at 463, 908 A.2d 196 (emphases added). *3 To comply with that holding, the Court deferred to the Legislature to make the following choice: either grant same-sex couples the right to enter into a civil marriage, or enact a parallel statutory structure under a different name so long as the rights and benefits of civil marriage are made equally available to same-sex couples. Id. at 423, 463, 908 A.2d 196. The Legislature chose the second option. It enacted the Civil Union Act, which established civil unions in February 2007. See N.J.S.A. 37:128 to 36. The act provides that civil unions are to be treated the same as marriages. N.J.S.A. 37:128, 33. The statute, though, does not allow same-sex couples to marry and does not extend the title marriage to civil unions. Four months ago, the Supreme Court decided Windsor. The case involved two women, Edith Windsor and Thea Spyer, who began a long-term relationship in 1963 and later married in Canada. Windsor, supra, 570 U.S. at , 133 S.Ct. at 2683, 186 L.Ed.2d at 816. The State of New York recognized their marriage. Ibid. When Spyer died in 2009, she left her entire estate to Windsor. Ibid. The Defense of Marriage Act, however, barred Windsor from claiming the federal estate tax exemption available to surviving spouses. Ibid.1 As a result, Windsor had to pay $363,053 in estate taxes. Ibid. After the Internal Revenue Service denied her request for a refund, Windsor filed suit and asserted that DOMA was unconstitutional. Ibid.
The Court observed that [t]he avowed purpose and practical effect of the law ... are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States. Id. at , 133 S.Ct. at 2693, 186 L.Ed.2d at 827. The Supreme Court held that DOMA violated basic due process and equal protection principles under the Fifth Amendment to the United States Constitution. Id. at , , 133 S.Ct. at 2693, 2695, 186 L.Ed.2d at 827, 830. By striking down the part of DOMA in question, the Court did not allow federal laws and regulations to continue to deny lawfully married same-sex couples the benefits provided to married opposite-sex couples. The Court also stated that its opinion and its holding are confined to ... lawful marriages. Id. at , 133 S.Ct. at 2696, 186 L.Ed.2d at 830. After Windsor, plaintiffs in this case moved for summary judgment, and the trial court granted the motion. Judge Jacobson reasoned that plaintiffs were not eligible for marital benefits that a number of federal agencies had extended to same-sex married couples in light of Windsor. She observed that New Jersey same-sex couples in civil unions were now denied benefits solely as a result of the label placed upon them by the State. In her judgment, the harm to same-sex couples in a wide range of contexts violated Lewis and the State Constitutions guarantee of equal protection. That unequal treatment, she ruled, require[d] that New Jersey extend civil marriage to same-sex couples.
III. *4 We turn now to the merits of the States motion for a stay and consider each of the relevant factors.
A. The State argues that it will suffer irreparable harm in a number of ways if Judge Jacobsons order is not stayed. First, it claims an injury to its sovereign interests whenever one of its democratically enacted laws is declared unconstitutional. The abstract harm the State alleges begs the ultimate question: if a law is unconstitutional, how is the State harmed by not being able to enforce it? See Joelner v. Vill. of Wash. Park, 378 F.3d 613, 620 (7th Cir.2004) ([T]here can be no 5
[6]
irreparable harm to a municipality when it is prevented from enforcing an unconstitutional statute[.]) (citing Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir.1998)). The State relies on other federal cases for the broad proposition it advances. See Maryland v. King, U.S. 1, , 133 S.Ct. 1, 3, 183 L.Ed.2d 667, 670 (2012) (Roberts, C.J., in chambers) ([A]ny time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury.) (quoting New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U.S. 1345, 1351, 98 S.Ct. 359, 363, 54 L.Ed.2d 439, 445 (1977) (Rehnquist, J., in chambers)). But the State cites no New Jersey case law for the principle that enjoining a statutes enforcement always amounts to irreparable harm. In any event, the trial court did not strike down the Civil Union Act; it instead directed the State to allow same-sex couples to enter into civil marriage. Second, the State contends that once it grants marriage licenses to even a handful of same-sex couples, it is virtually impossible ... to undo that action later; the harm would be irremediable. The State does not explain why that is so. As Judge Jacobson noted, Californias experience reveals the opposite. See Lockyer v. City and Cnty. of San Francisco, 33 Cal.4th 1055, 17 Cal.Rptr.3d 225, 95 P.3d 459, 464, 494 (2004) (decision by California Supreme Court ordering San Francisco county clerk to stop issuing marriage licenses to same-sex couples and to take specific steps to nullify 4,000 licenses that had already been issued).2 The State has presented no explanation for how it is tangibly or actually harmed by allowing same-sex couples to marry. It has not made a forceful showing of irreparable harm.
case, the Stateto show that its legal right is settled. See ibid. Regardless, the State maintains that the premise underlying Windsor means that civil-union partners are entitled to federal benefits. That interpretation of Windsor has not been followed by the United States Department of Justice or any number of federal agencies. The Supreme Court in Windsor, supra, declared that its opinion and its holding are confined to ... lawful [same-sex] marriages. 570 U.S. at , 133 S.Ct. at 2696, 186 L.Ed.2d at 830 (emphases added). In the wake of that decision, federal agencies have directed that various benefits be made available to same-sex married couples, but not to civil-union partners. That, in turn, deprives partners in a civil union of the rights and benefits they would receive as married couples. The States thoughtful position about what federal law should provide cannot substitute for federal action; nor can the States views bind the federal government. *5 [7] To assess the States chance to succeed on the merits and overturn the trial courts judgment, we return to the core principles that frame this case. In Lewis, supra, this Court held that to comply with the equal protection guarantee of Article I, Paragraph 1 of the New Jersey Constitution, the State must provide to committed same-sex couples, on equal terms, the full rights and benefits enjoyed by heterosexual married couples. 188 N.J. at 463, 908 A.2d 196. The Legislature, in turn, enacted the Civil Union Act, which allows same-sex couples to enter into a civil union. See N.J.S.A. 37:128 to 36. The law does not permit them to marry. Windsor then changed the landscape. By striking the part of DOMA that defined marriage as a legal union between one man and one woman, 1 U.S.C.A. 7, the United States Supreme Court paved the way to extending federal benefits to married same-sex couples. Windsor, supra, 570 U.S. at , 133 S.Ct. at 2696, 186 L.Ed.2d at 830. A number of federal agencies responded and now provide various benefits to married same-sex couples. Because State law offers same-sex couples civil unions but not the option of marriage, same-sex couples in New Jersey are now being deprived of the full rights and benefits the State Constitution guarantees. The State presents three arguments to show that its appeal has a reasonable probability of success. First, the State claims that plaintiffs will not be able to overcome the highest presumption of constitutional validity that attaches to statutory enactments. Once again, Judge Jacobson did not strike down a statute. The Civil Union Act, while it may not see much use in the coming months, remains available for people who choose to use it. Even more important, though, the statute was presumptively valid so long as it provided full and equal rights and 6
[8]
B. Next, to obtain a stay, the State must demonstrate that its underlying legal claim is settled, and it must show a reasonable probability of success on the merits. See Crowe, supra, 90 N.J. at 133, 447 A.2d 173. The State has not made either showing. The State flips around the Crowe standard and argues that plaintiffs interpretation of Windsor and its challenge to the Civil Union Act present unsettled questions of constitutional law. As Judge Jacobson correctly observed, the Crowe standard requires the moving partyin this
benefits to same-sex couples. Lewis, supra, 188 N.J. at 423, 908 A.2d 196. Based on recent events, the Civil Union Act no longer achieves that purpose. Second, the State argues that plaintiffs claims fail on federalism grounds. Underlying part of this argument is the States interpretation of Windsor, which, as noted above, is at odds with the practice of the federal government. Although the State claims that the federal government must defer to the states in matters concerning domestic relations, federal agency rulings are following New Jerseys rule about who may marry. Third, the State claims that plaintiffs equal protection claim must fail because the States action is not legally cognizable. The State argues that it has followed Lewis and provided same-sex couples with all State marriage benefits, and that it cannot be responsible for federal bureaucrats that ... refused to extend federal benefits. Lewis is not limited in that way. The decision recognized that it could not alter federal law, Lewis, supra, 188 N.J. at 459 n. 25, 908 A.2d 196, yet at the same time directed the State to provide same-sex couples the full rights and benefits enjoyed by heterosexual married couples, id. at 463, 908 A.2d 196 (emphasis added). Lewis left it to the Legislature to revise State law in a way that satisfied the Constitutions guarantee of equal protection. Id. at 45762, 908 A.2d 196. And the State acted in response. It enacted the Civil Union Act and created a structure that allows same-sex couples to enter into a civil union but not to marry. See N.J.S.A. 37:128 to 36. That structure today provides the framework for decisions by federal authorities. The States statutory scheme effectively denies committed same-sex partners in New Jersey the ability to receive federal benefits now afforded to married partners. The trial court therefore correctly found cognizable action by the State. *6 We conclude that the State has not shown a reasonable probability or likelihood of success on the merits.
today. For example, partners in a civil union cannot receive a number of health related benefits: they cannot claim leave under the Family and Medical Leave Act if a partner becomes sick or is injured;3 they cannot get coverage for health benefits as a spouse of a federal employee;4 and they cannot get certain Medicare benefits, including services in a skilled nursing facility for a spouse.5 Unlike same-sex married couples, civil-union partners also cannot file a joint federal tax return;6 they cannot be considered a spouse for immigration purposes;7 and they cannot participate in a Survivor Benefit Plan as a spouse of an active or retired member of the military.8 All of these and other examples affect not only partners to a civil union but also their children. Lewis guarantees equal treatment under the law to same-sex couples. That constitutional guarantee is not being met. And the ongoing injury that plaintiffs face today cannot be repaired with an award of money damages at a later time. See Crowe, supra, 90 N.J. at 13233, 447 A.2d 173 (Harm is generally considered irreparable in equity if it cannot be redressed adequately by monetary damages.); see also LaForest v. Former Clean Air Holding Co., 376 F.3d 48, 55 (2d Cir.2003). Plaintiffs highlight a stark example to demonstrate the point: if a civil-union partner passes away while a stay is in place, his or her surviving partner and any children will forever be denied federal marital protections. The balance of hardships does not support the motion for a stay.
D.
[10]
C.
[9]
Crowe, supra, also requires that we balance the relative hardships to the parties. 90 N.J. at 134, 447 A.2d 173. The State identified certain abstract harms that are addressed above. Weighed against them are immediate and concrete violations of plaintiffs right to equal protection under the law. Because plaintiffs cannot marry under State law, they and their children are simply not eligible for a host of federal benefits available to same-sex married couples
Finally, because this case presents an issue of significant public importance, we consider the public interest. McNeil, supra, 176 N.J. at 484, 825 A.2d 1124. What is the publics interest in a case like this? Like Judge Jacobson, we can find no public interest in depriving a group of New Jersey residents of their constitutional right to equal protection while the appeals process unfolds. The State cites various cases in which courts have granted a stay. See, e.g., Comm. to Recall Robert Menendez from the Office of U.S. Senator v. Wells, 413 N.J.Super. 435, 458, 995 A.2d 1109 (App.Div.2010) (staying order that recall process begin), revd on other grounds, 204 N.J. 79, 7 A.3d 720 (2010) (finding State recall process of United 7
States Senator unconstitutional); PENPAC, Inc. v. Morris Cnty. Mun. Utils. Auth., 299 N.J.Super. 288, 293, 690 A.2d 1094 (App.Div.1997) (staying order that voided government contract for violation of public bidding requirements), certif. denied, 150 N.J. 28, 695 A.2d 670 (1997); Palamar Constr., Inc. v. Pennsauken, 196 N.J.Super. 241, 245, 482 A.2d 174 (App.Div.1983) (same). Those rulings served the public interest in light of the particular circumstances presented. *7 In other situations, courts have declined to enter a stay in order to protect individual constitutional rights. See, e.g., Armstrong v. OConnell, 416 F.Supp. 1325, 1332 (E.D.Wis.1976) (denying stay of order that enjoined defendants from discriminating on basis of race in operation of public schools); Fortune v. Molpus, 431 F.2d 799, 804 (5th Cir.1970) (vacating single-judge stay of District Courts order directing university officials to permit civil rights activist to speak on campus). We find that the compelling public interest in this case is to avoid violations of the constitutional guarantee of equal treatment for same-sex couples. The State argues that we should give the democratic process a chance to play out rather than act now. When courts face questions that have far-reaching social implications, see Lewis, supra, 188 N.J. at 461, 908 A.2d 196, there is a benefit to letting the political process and public discussion proceed first. Courts should also avoid reaching constitutional questions unless required to do so. Comm. to Recall Menendez, supra, 204 N.J. at 9596, 7 A.3d 720 (citing Harris v. McRae, 448 U.S. 297, 30607, 100 S.Ct. 2671, 2683, 65 L.Ed.2d 784, 798 (1980); Randolph Town Ctr. v. Cnty. of Morris, 186 N.J. 78, 80, 891 A.2d 1202 (2006)). But when a party presents Footnotes
1
[11] [12]
a clear case of ongoing unequal treatment, and asks the court to vindicate constitutionally protected rights, a court may not sidestep its obligation to rule for an indefinite amount of time. Under those circumstances, courts do not have the option to defer.
IV. We have before us today a motion for a stay. To rule on the stay motion, we applied settled legal standards and determined that the State has not shown a reasonable probability it will succeed on the merits. Additional arguments on the merits will be considered in January 2014. We conclude that the State has not made the necessary showing to prevail on any of the Crowe factors and that the public interest does not favor a stay. We therefore deny the States motion for a stay. As a result, the trial courts order dated September 27, 2013 remains in full force and effect. State officials shall therefore permit same-sex couples, who are otherwise eligible, to enter into civil marriage beginning on October 21, 2013.
Justices LaVECCHIA, ALBIN, HOENS and PATTERSON and Judges RODRGUEZ and CUFF (both temporarily assigned), join in Chief Justice RABNERs opinion.
Section 3 of DOMA defined marriage and spouse: In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word marriage means only a legal union between one man and one woman as husband and wife, and the word spouse refers only to a person of the opposite sex who is a husband or a wife. 1 U.S.C.A. 7. DOMA applied to more than 1,000 federal statutes and the whole realm of federal regulations. Windsor, 570 U.S. at , 133 S.Ct. at 2690, 186 L.Ed.2d at 824. Those laws and regulations pertain [ ] to Social Security, housing, taxes, criminal sanctions, copyright, and veterans benefits. Id. at , 133 S.Ct. at 2694, 186 L.Ed.2d at 828. Additional history of what occurred in California after 2004 can be found in Hollingsworth v. Perry, U.S. , 133 S.Ct. 2652, 186 L.Ed.2d 768 (2013), and the lower court decisions in the case. Fact Sheet # 28F: Qualifying Reasons for Leave Under the Family and Medical Leave Act, U.S. Dept of Labor, Wage and Hour Div., http:// www.dol.gov/whd/regs/compliance/whdfs28f.pdf (last visited Oct. 17, 2013). Letter from John OBrien, Dir. of Healthcare and Ins., U.S. Office of Personnel Mgmt., Fed. Emp. Ins. Operations, to All Carriers (July 3, 2013), available at http://www.opm.gov/healthcar einsurance/healthcare/carriers/2013/201320.pdf. Press Release, U.S. Dept of Health & Human Servs., HHS Announces First Guidance Implementing Supreme Courts Decision on the Defense of Marriage Act (Aug. 29, 2013), available at http:// www.hhs.gov/news/press/2013pres/08/20130829a.html;
Memorandum from Danielle R. Moon, Dir., Medicare Drug & Health Plan Contract Admin. Grp., to All Medicare Advantage Orgs. (Aug. 29, 2013), available at http://hr.c ch.com/hld/SNFBenefitsafterUSvWindsorDOMAdecison82913.pdf.
6
Internal Revenue Service, Rev. Rul.201317, at 12, http:// www.irs.gov/pub/irsdrop/rr1317.pdf (last visited Oct. 17, 2013). U.S. Visas for SameSex Spouses, Travel.State.Gov, U.S. Dept of State, http://travel.state.gov/visa/frvi/frvi_6036.html# (last visited Oct. 17, 2013). Press Release, Chief of Naval Personnel Public Affairs, U.S. Dept of the Navy, SameSex Spouses of Military Retirees Now Eligible for Survivor Benefits Program (Sept. 9, 2013, 3:22 PM), available at http:// www. navy.mil/submit/display.asp?story_id=76431.
End of Document
Jones v. Hamilton County Government, Tenn., --- Fed.Appx. ---- (2013)
2013 WL 3766656 Only the Westlaw citation is currently available. This case was not selected for publication in the Federal Reporter. Not for Publication in Wests Federal Reporter. See Fed. Rule of Appellate Procedure 32.1 generally governing citation of judicial decisions issued on or after Jan. 1, 2007. See also Sixth Circuit Rule 28. (Find CTA6 Rule 28) United States Court of Appeals, Sixth Circuit. Brandon Raymond JONES and Thomas Joseph Coleman, III, PlaintiffsAppellants, v. HAMILTON COUNTY GOVERNMENT, TENNESSEE, DefendantAppellee. No. 126079. | July 19, 2013.
Countys policy of commencing meetings of county commission with a prayer was facially neutral under the First Amendment establishment clause, where policy specifically stated it was not intended to proselytize or advance any particular faith, or show any purposeful preference of one religious view to the exclusion of others, it expressly contemplated invocations that did not constitute prayer, but instead included only a reflective moment of silence, or short solemnizing message, it did not require participation of commissioners or attendees, it provided that all congregations within county could request inclusion, and speakers were requested to maintain a spirit of respect for all and to refrain from disparaging any other faith. U.S.C.A. Const.Amend. 1.
Synopsis Background: County residents brought 1983 action against county, alleging practice of commencing meetings of county commission with a prayer violated the First Amendment establishment clause. Residents moved for preliminary injunction. The United States District Court for the Eastern District of Tennessee, Harry S. Mattice, Jr., J., 891 F.Supp.2d 870, denied motion. Residents appealed.
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Constitutional Law Ripeness; prematurity County residents as-applied First Amendment establishment clause challenge to countys policy of commencing meetings of county commission with a prayer was not ripe for judicial review due to the lack of a developed record, which consisted of only two post-policy prayer invocations. U.S.C.A. Const.Amend. 1.
Holdings: The Court of Appeals, Avern Cohn, Senior District Judge, held that:
[1] [2]
policy was facially neutral, and as-applied challenge was not ripe for review. On Appeal from the United States District Court for the Eastern District of Tennessee. BEFORE: GIBBONS and WHITE, Circuit Judges; and COHN, Senior District Judge.*** Opinion AVERN COHN, Senior District Judge.
Affirmed.
West Headnotes (2)

[1]
Constitutional Law Local governmental entities Counties Meetings
*1 This is a First Amendment legislative prayer case. At issue is whether the Hamilton County Commissions (the Commission) formal written policy of commencing 1
meetings with a prayer invocation led by a private citizen violates the First Amendments Establishment Clause. The Commission, the elected legislature of Hamilton County, Tennessee, has a longstanding unwritten tradition of beginning its meetings with a prayer invocation. On June 15, 2012, PlaintiffsAppellants Brandon Jones and Thomas Coleman (the Appellants), both members of the Chattanooga Freethought Association,1 sued the Hamilton County Government (the County) under 42 U.S.C. 1983 seeking a declaratory judgment that the Commissions practice of opening meetings with a prayer invocation is unconstitutional. Appellants specifically objected to the Commissions use of prayers invoking the name of Jesus. Subsequently, on July 3, 2012, the Commission formally adopted a resolution to commence Commission meetings with a prayer. Appellants sought from the district court a preliminary injunction enjoining the Commissions prayer practice; it was denied. This interlocutory appeal followed. For the reasons that follow, we affirm the district courts denial of a preliminary injunction. The Commissions prayer policy is constitutional on its face and an as-applied challenge2 requires further fact-development on remand.
requesting that the Commission discontinue all prayer before meetings. The letter stated, in pertinent part: It is our understanding that [the Commissions] meetings open with Christian prayers. We understand that the prayers are exclusively Christian and every 2012 prayer so far has been given in Jesus name. First and foremost, prayer at government meetings is unnecessary, inappropriate, and divisive. Commission members are free to pray privately or to worship on their own time in their own way. They do not need to worship on taxpayers time. The Commission ought not to lend its power and prestige to religion, amounting to a governmental endorsement that excludes the 15% of the American population that is nonreligious (American Religious Identification Survey, 2008). *2 The Foundation recommended that the Commission discontinue official, government prayers before government meetings and instead incorporate a moment of silence. The Commission continued its prayer practice despite the Foundations request to substitute prayers with a moment of silence. For example, on June 6, 2012, County attorney Rheubin Taylor invoked the Heavenly Father and stated that the prayer was offered in Jesus[] name. Again, on June 14, 2012, a Christian pastor recited the Lords Prayer, and some audience membersCounty employees and commissionersstood and bowed their heads, while others chose to recite the prayer aloud. Because of the continued prayer practice, Appellants filed suit on June 15, 2012. The Commission continued its prayer practice after Appellants filed suit. On June 20 and June 28, 2012, prayer invocations were offered in the name of Jesus. At the Commissions July 3, 2012 meeting, the invocation speaker recited the Lords Prayer, and all commissioners stood for the invocation. Some commissioners joined in reciting the prayer. On the same day, after the invocation, the Commission adopted Resolution 71213: A Resolution Adopting a Policy Regarding Opening Invocations Before Meetings of the Hamilton County Commission (the Policy). The Policy expressly replaced and repealed any prior practice of the ... Commission concerning opening invocations.... The Policy allows for an invocation, which may include a prayer, a reflective moment of silence, or a short solemnizing message, to be offered before [the Commissions] meetings for the benefit of the Commission. Participation is voluntary, both by members and employees of the Commission, and persons 2
I. BACKGROUND A. The Commissions Prayer Practice The County is a political subdivision of the state of Tennessee. The Commission is the Countys elected legislature and final policy maker. The Commission holds two types of meetings at which it conducts its official business: (1) agenda sessions; and (2) Commission meetings. These meetings begin with a prayer invocation, which is followed by the Pledge of Allegiance. The parties stipulated that prior to July 3, 2012, invocation speakers came from a variety of faith traditions, ... and some speakers were invited by the County without knowing their faith tradition.... Prayer invocations were offered by private citizens, local clergy, and the commissioners themselves. The prayers were oftentimes Christian based. Amira Laham, a Muslim resident of the County who attended the Commissions meetings beginning in November of 2011, testified that she attended ten meetings, all of which began with Christian prayer invocations. In May of 2012, the Freedom From Religion Foundation (the Foundation)3 sent a letter to the Commission
in attendance. The Policy provides that [t]he prayer shall be voluntarily delivered by an eligible member of the clergy in Hamilton County, Tennessee. To ensure that the eligible member of the clergythe invocation speakerwill be chosen from a wide pool of the Countys clergy, the Policy sets forth a procedure for the Commission to select potential invocation speakers. Each year, the Commission is to compile and maintain a database (the Congregations List) of the religious congregations with an established presence in Hamilton County. This will be done by referencing the listing for churches, congregations, or other religious assemblies in Hamilton County. The Policy provides that [a]ll religious congregations with an established presence in Hamilton County are eligible to be included in the Congregations List, and any such congregation can confirm its inclusion by specific written request to the staff. Further, if a resident of the County attends a congregation in a different county, he or she can request the inclusion of that congregation. If a question arises as to the authenticity of a religious congregation, the Policy states that the Commission shall refer to criteria used by the Internal Revenue Service in its determination of those religious organizations that would legitimately qualify for I.R.C. 501(c)(3) tax-exempt status.4 *3 After the Congregations List is compiled, the Policy provides that, once a year, the Commission will mail to each congregations religious leader an invitation to participate as the invocation speaker at the beginning of the meeting. The speaker does not receive compensation for his or her service. The letter informs the religious leaders that they will be scheduled to give the invocations on a first-come, first-serve basis. The letter further provides guidance to religious leaders of the scope of their potential invocation by stating: This opportunity is voluntary, and you are free to offer the invocation according to the dictates of your own conscience. However, please try not to exceed no [sic] more than five (5) minutes for your presentation. To maintain a spirit of respect for all, the Commission requests only that the opportunity not be exploited as an effort to convert others to the particular faith of the invocation speaker, nor to disparage any faith or belief different than that of the invocation speaker. (emphasis in original). However, the Policy does not control the content of invocations. Indeed, the Policy recognizes that [n]o guidelines or limitations shall be issued regarding an invocations content, except that the Commission shall
request by the language of this policy that no invocation should proselytize or advance any faith, or disparage the religious faith or non-religious views of others, or exceed five (5) minutes in length. Further, [n]either the Commission nor the staff shall engage in any prior inquiry, review of, or involvement in, the content of any invocation to be offered by an invocation speaker. The Commissions published schedule of events issued prior to its meetings is to contain the following disclaimer: Any invocation that may be offered before the official start of the Commission meeting shall be the voluntary offering of a private citizen, to and for the benefit of the Commission. The views or beliefs expressed by the invocation speaker have not been previously reviewed or approved by the Commission and do not necessarily represent the religious beliefs or views of the Commission in part or as a whole. No member of the community is required to attend or participate in the invocation and such decision will have no impact on their right to actively participate in the business of the Commission. (emphasis in original). After the Policy went into effect, the Commission created the first Congregations List and mailed invitations to the religious leaders of 549 religious assemblies meeting within the County to give the invocation at future meetings. The list was compiled by referencing the Yellow Pages. The parties have stipulated that [t]he invitation was sent to many assemblies whose faith tradition is not discernible as well as many diverse identifiable faith traditions, including but not limited to Jewish, Muslim, Jehovahs Witness, Mormon, Christian Scientist, Catholic, Baptist, Presbyterian, Methodist, Lutheran, Church of Christ, Church of God, Pentecostal, Congregationalist, Episcopal, Nazarene, Seventh Day Adventist, Greek Orthodox, Assemblies of God, and Unitarian Universalist. *4 The majority of religious groups invited were JudeoChristian, which corresponds with the majority of the Countys residents.
B. PostPolicy Prayers At an evidentiary hearing in the district court,5 Appellants introduced evidence of the Commissions prayer invocations at two meetings after the Policy went into effect. At the first meeting on July 12, 2013, Commission Chairman Henry instructed the entire room to please stand for the invocation, and the prayer asked for divine guidance and blessings on the Commission in Jesus name. Like the July 12 prayer, the July 18, 2013 prayer sought guidance in the name of Jesus Christ, our savior, your son, and our only hope, in Jesus name. According to Appellants, the prayers never changed from the time they began attending Commission meetings in June of 2012, i.e. they were Christian-based prayers invoking the name of Jesus. In addition, since the Policy was adopted and applied, religious leaders from the following faith traditions have volunteered, and were scheduled to give the invocations on a first-come, first-serve basis: Jewish, Unitarian Universalist, Baptist, Lutheran, Church of God, Presbyterian, and others. At the time the district court issued its opinion on August 29, 2012, these scheduled invocation speakers had not yet participated at Commission meetings.6 The record does not reflect whether the speakers actually participated by giving the invocation on the days they were scheduled to attend.
Cir.1998) (en banc). Recognizing that Marsh has limits, however, the district court reasoned that legislative prayers cannot be used to proselytize listeners, or to advance one religion over another. Turning to the facts at hand, the district court construed Appellants challenge to the Policy as a facial challenge. The district court reasoned that the Policy strives for neutrality, and, therefore, it is not intended to proselytize or advance any particular faith, or show any purposeful preference of one religious view to the exclusion of others. As such, the district court held that the Policy is constitutional on its face. *5 Next, the district court reasoned that Appellants as-applied challenge to the Policy was not ripe for judicial review. Because the record contained only two Commission meetings that occurred after the Policy was adopted, the district court reasoned that an as-applied challenge was premature. As the district court stated, [A]t this point, the factual record before the [c]ourt is far too attenuated to permit any reasoned conclusion concerning the constitutionality of the [P]olicys application. The district court concluded that, [w]hile there may be a possibility for future constitutional violations under the [P]olicy, Plaintiffs have not demonstrated that they are likely to suffer irreparable harm before a decision on the merits can be reached. (emphasis in original) (citation omitted). Appellants timely filed an interlocutory appeal.
C. The District Courts Decision Appellants moved in the district court for a preliminary injunction to enjoin the Commissions prayer practice under the Policy. The district court, applying the four-prong preliminary injunction test discussed infra, denied Appellants motion. Because Appellants sought prospective relief through a preliminary injunction, the district court limited its inquiry to whether the July 3, 2012 Policy is likely to result in a constitutional violation. PrePolicy prayer invocations, therefore, were not considered. The district court focused its analysis on Appellants likelihood of succeeding on the merits. Appellants urged the district court, as they urge us, to apply Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971).7 The district court determined that Lemon did not apply to Establishment Clause challenges in the context of legislative prayer cases. In reaching this conclusion, the district court relied on the Supreme Courts decision in Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983), and the decisions of our sister circuits that have interpreted Marsh, citing Joyner v. Forsyth Cnty., 653 F.3d 341, 345 (4th Cir.2011); Snyder v. Murray City Corp., 159 F.3d 1227, 1232 (10th
II. LEGAL STANDARDS A. Preliminary Injunction A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of the equities tips in his favor, and that an injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) (citing Munaf v. Geren, 553 U.S. 674, 68990, 128 S.Ct. 2207, 171 L.Ed.2d 1 (2008); Amoco Prod. Co. v. Gambell, 480 U.S. 531, 542, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987); Weinberger v. RomeroBarcelo, 456 U.S. 305, 31112, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982)). These factors are not prerequisites to issuing an injunction but factors to be balanced. United Food & Commercial Workers Union, Local 1099 v. Southwest Ohio Regl Transit Auth., 163 F.3d 341, 347 (6th Cir.1998) (citation omitted). The 4
district court need not consider each factor if fewer factors are dispositive of the issue. Lorillard Tobacco Co. v. Amouris Grand Foods, Inc., 453 F.3d 377, 380 (6th Cir.2006) (citing Six Clinics Holding Corp., II v. Cafcomp Sys., Inc., 119 F.3d 393, 399 (6th Cir.1997)). When a party seeks a preliminary injunction on the basis of the potential violation of the First Amendment, the likelihood of success on the merits often will be the determinative factor. Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir.1998).
B. Appellate Jurisdiction and Standard of Review Although a district courts decision whether to grant a preliminary injunction is generally reviewed for an abuse of discretion, in cases with First Amendment implications, the standard of review is de novo. Am. Freedom Def. Initiative v. Suburban Mobility Auth. for Regl Transp. (SMART), 698 F.3d 885, 88990 (6th Cir.2012) (italics and internal citations omitted); see id. at 890 (explaining that, in the First Amendment context, the other [preliminary-injunction] factors are essentially encompassed by the analysis of the movants likelihood of success on the merits, which is a question of law that must be reviewed de novo (italics omitted)). Here, Appellants likelihood of success on the merits is a pure legal question and does not require us to review any factual findings. Thus, we apply de novo review.
The majority began its opinion by explaining the historical tradition of opening legislative sessions with a prayer. Id. Tracing legislative prayer to colonial times through the founding of the Republic and ever since, id., the Supreme Court recognized that the First Congress, as one of its early items of business, adopted the policy of selecting a chaplain to open each session with prayer. Id. at 78788, 103 S.Ct. 3330. The Senate and House elected their first chaplains in 1789. Id. at 788, 103 S.Ct. 3330. As the Supreme Court explained, [i]t can hardly be thought that in the same week Members of the First Congress voted to appoint and to pay a Chaplain for each House and also voted to approve the draft of the First Amendment that they intended the Establishment Clause of the Amendment to forbid what they had just declared acceptable. Id. at 790 103 S.Ct. 3330. The Supreme Court concluded that, [i]n light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the practice of opening legislative sessions with prayer has become part of the fabric of our society. Id. at 792, 103 S.Ct. 3330. Thus, the Supreme Court reasoned that, [t]o invoke Divine guidance on a public body entrusted with making the laws is not, in these circumstances, an establishment of religion or a step toward establishment. Id. Applying these historical principles, the Supreme Court held that Nebraskas policy passed constitutional muster. First, the Supreme Court reasoned that the Presbyterian clergymans long tenuresixteen yearsstanding alone, did not advance[ ] the beliefs of a particular church. To the contrary, the evidence indicat[ed] that [the clergyman] was reappointed because his performance and personal qualities were acceptable to the body appointing him. Id. at 793, 103 S.Ct. 3330. Second, because of its historical roots, the Supreme Court stated that the public funds used to compensate the clergyman did not violate the Establishment Clause. Id. at 794, 103 S.Ct. 3330. Finally, the Supreme Court stated that [t]he content of the prayer is not of concern to judges where ... there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief. Id. at 79495, 103 S.Ct. 3330. The Supreme Court reasoned that it is not for courts to embark on a sensitive evaluation or to parse the content of a particular prayer. Id. at 795, 103 S.Ct. 3330. *7 Although the Supreme Court cautioned courts not to evaluate the content of particular prayers, it expressly noted in a footnote that Palmer removed all references to Christ after receiving a complaint from a legislator: Palmer characterizes his prayers as nonsectarian, Judeo Christian, and with elements of the American 5
III. DISCUSSION A. Marsh and its Progeny *6 Our discussion begins with the Supreme Courts first and only pronouncement on the constitutionality of legislative prayer: Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983). In Marsh, a state legislator challenged the Nebraska legislatures practice of opening sessions with a prayer led by a Presbyterian chaplain, Robert Palmer, who was paid by the State. 463 U.S. at 78485, 103 S.Ct. 3330. For sixteen years, Palmer was the only clergyman selected to conduct the prayers, which were of the JudeoChristian tradition. Id. at 793, 103 S.Ct. 3330. The Eighth Circuit applied the three-part Lemon test to strike down Nebraskas prayer practice. Id. at 786, 103 S.Ct. 3330. However, in reversing and upholding Nebraskas practice, the Supreme Court did not follow the Eighth Circuits lead and abandoned the Lemon test in favor of a history-based analysis. Id. at 786, 103 S.Ct. 3330.
civil religion. Although some of his earlier prayers were often explicitly Christian, Palmer removed all references to Christ after a 1980 complaint from a Jewish legislator. Id. at 793 n. 14, 103 S.Ct. 3330 (internal citations to record omitted). Justice Brennan dissented, in which Justice Marshall joined, reasoning that the majoritys decision is contrary to the doctrine as well the underlying purposes of the Establishment Clause, and it is not saved either by its history or by any of the other considerations suggested in the Courts opinion. Id. at 796, 103 S.Ct. 3330 (Brennan, J., dissenting). Justice Brennan objected to the majoritys failure to apply Lemon. Justice Brennan opined that Nebraskas policy violated all three prongs of Lemon. Id. at 796801, 103 S.Ct. 3330. In concluding, Justice Brennan stated that he was unconvinced by the Courts arguments, and cannot shake my conviction that legislative prayer violates both the letter and the spirit of the Establishment Clause. Id. at 813, 103 S.Ct. 3330. Justice Stevens also dissented, stating that it seems plain to me that the designation of a member of one religious faith to serve as the sole official chaplain of a state legislature for a period of 16 years constitutes the preference of one faith over another in violation of the Establishment Clause of the First Amendment. Id. at 823, 103 S.Ct. 3330 (Stevens, J., dissenting). Justice Stevens took issue with the majoritys failure to evaluate the particular prayers offered, reasoning that the majoritys unwillingness to do so was because it would be unable to explain away the clearly sectarian content of some of the prayers given by Palmer. Id. The year after Marsh was decided, the Supreme Court decided Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984), in which the Court upheld a public crche display that served as just one aspect of a larger holiday display to celebrate the season. In Lynch, Justice OConnor in concurring with the majority compared the crche at issue to legislative prayer: These features combine to make the governments display of the crche in this particular physical setting no more an endorsement of religion than such governmental acknowledgments of religion as legislative prayers of the type approved in Marsh ... Those government acknowledgments of religion serve, in the only ways reasonably possible in our culture,
the legitimate secular purposes of solemnizing public occasions, expressing confidence in the future, and encouraging the recognition of what is worthy of appreciation in society. For that reason, and because of their history and ubiquity, those practices are not understood as conveying government approval of particular religious beliefs. *8 465 U.S. at 69293, 104 S.Ct. 1355 (OConnor, J., concurring). Six years after Marsh, the Supreme Court revisited footnote 14, in which the Court had expressly noted that Palmer had removed all references to Christ in his prayers. In County of Allegheny v. American Civil Liberties Union Greater Pittsburgh Chapter, 492 U.S. 573, 603, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989), a case finding unconstitutional a crche display that had been placed on the grand staircase of a county courthouse while holding that the display of a menorah next to a Christmas tree was not an unconstitutional endorsement of the Christian and Jewish faiths, the Supreme Court stated: [I]n Marsh itself, the Court recognized that not even the unique history of legislative prayer can justify contemporary legislative prayers that have the effect of affiliating the government with any one specific faith or belief. The legislative prayers involved in Marsh did not violate this principle because the particular chaplain had removed all references to Christ. Thus, Marsh plainly does not stand for the sweeping proposition ... that all accepted practices 200 years old and their equivalents are constitutional today. (internal citations omitted). The Supreme Court again briefly discussed Marsh in two more recent cases decided on the same day, both of which challenged the placement of monuments of the Ten Commandments on government property. See Van Orden v. Perry, 545 U.S. 677, 125 S.Ct. 2854, 162 L.Ed.2d 607 (2005); McCreary Cnty., Ky. v. ACLU of Ky., 545 U.S. 6
844, 125 S.Ct. 2722, 162 L.Ed.2d 729 (2005). In Van Orden, Chief Justice Rehnquist recognized in a plurality opinion that the role of God in our Nations heritage and historical principles led the Court to hold that the Establishment Clause permits a state legislature to open its daily sessions with a prayer by a chaplain paid by the State. 545 U.S. at 68788, 125 S.Ct. 2854 (citing Marsh, 463 U.S. at 792, 103 S.Ct. 3330). In a footnote, the Chief Justice recognized that, in Marsh, the Court had rejected the claim that an Establishment Clause violation was presented because the prayers had once been offered in the JudeoChristian tradition. Id. at 688 n. 8, 125 S.Ct. 2854. In McCreary County, the Supreme Court noted that the Establishment Clause doctrine lacks the comfort of categorical absolutes. In special instances [the Supreme Court] ha[s] found good reason to hold governmental action legitimate even where its manifest purpose was presumably religious, citing to Marsh. 545 U.S. at 859 n. 10, 125 S.Ct. 2722. In dissent, Justice Scalia also recognized that Marsh approved government-led prayer to God, as long as there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief. Id. at 892, 894, 125 S.Ct. 2722. Against this backdrop we first consider whether the district court erred in concluding that the Commissions Policy is constitutional on its face. Next, we consider whether the district court correctly determined that an as-applied challenge to the Policy was not ripe for judicial review.
of Englewood, 671 F.3d 564 (6th Cir.2012) (internal quotation marks omitted).8
1. Applicability of Lemon v. Kurtzman Appellants first invite us to determine that the Commissions Policy is unconstitutional on its face by applying Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). Given the Supreme Courts choice not to apply Lemon in Marsh, we decline Appellants invitation. See ACLU of Ohio v. Capitol Square Review and Advisory Bd., 243 F.3d 289, 30506 (6th Cir.2001) (en banc) (It is worth mentioning, perhaps, that even the author of the Lemon decision, the late Chief Justice Burger, did not see fit to apply the Lemon test when he wrote the Courts opinion in the legislative chaplain case, Marsh ....).
2. Applying Marsh to the Facial Challenge Having determined that the Lemon test does not apply to legislative prayer cases, we turn next to the contours of Marsh and conclude, as did the district court, that Appellants are not likely to succeed on the merits of their facial challenge to the Policy. Accordingly, the district courts decision denying Appellants preliminary injunction will not be disturbed on this basis. The Supreme Court in Marsh permitted legislative prayer as long as there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief. 463 U.S. at 79495, 103 S.Ct. 3330. Unless there is an indication that the prayer opportunity has been exploited to advance one faith or belief over another, the Supreme Court cautioned that courts should not embark on a sensitive evaluation or ... parse the content of a particular prayer. Id. at 795, 103 S.Ct. 3330. When applying the Marsh standard to the facts here, it is evident that the Commissions Policy is facially constitutional. The Policy allows for three different types of invocations: (1) a reflective moment of silence; (2) a short solemnizing message; or (3) a prayer. The Countys procedures for selecting potential invocation speakers are not discriminatory and allow any bonafide religious organization to participate. The Policy calls for a list of religious assemblies in the County to be compiled on a yearly basis, and, if a specific religious assembly in the County is not on the list, it can write to the County to be included. Further, the Policy allows religious assemblies from outside the County to give the opening invocation if a resident of the County requests their inclusion. The
[1]
B. Facial Challenge to Policy *9 Where, as here, the relief requested reaches beyond the particular circumstances of the Appellants, the claims that are raised are properly reviewed as facial challenges.... Disc. Tobacco City & Lottery, Inc. v. United States, 674 F.3d 509, 522 (6th Cir.2012) (citing John Doe No. 1 v. Reed, U.S. , 130 S.Ct. 2811, 2817, 177 L.Ed.2d 493 (2010)). Facial challenges, the Supreme Court has noted, are disfavored for several ... reasons: [1] they often rest on speculation and thus raise the risk of premature interpretation, [2] they run contrary to the fundamental principle of judicial restraint, and [3] they threaten to short circuit the democratic process. Green Party of Tenn. v. Hargett, 700 F.3d 816, 826 (6th Cir.2012) (quoting Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 45051, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008)). As we have previously explained, [f]acial invalidation is strong medicine that is not to be casually employed. Ohio Citizen Action v. City
Policy expressly states that it is intended to acknowledge and express the Commissions respect for the diversity of religious denominations and faiths represented and practiced among the citizens of Hamilton County. *10 In addition, the Policy states that invocation speakers will be notified: To maintain a spirit of respect for all, the Commission requests only that the opportunity not be exploited as an effort to convert others to the particular faith of the invocation speaker, nor to disparage any faith or belief different than that of the invocation speaker. On its face, the Policy is tailored to comply with Marsh and it does not advance any one faith or belief over another. To the extent that the procedures for selecting eligible clergy members as invocation speakers might have the effect of advancing one faith or belief over another, that has yet to be seen, and is not properly before us as a facial challenge to the Policy. The Policy, on its face, ensures that any organization that calls itself religious may participate, regardless of the specific beliefs it espouses. Even if an established religious organization does not have a Yellow Pages listing, it can write the Commission and request to participate in invocations. Without the ability to establish basic criteria for selecting religious groups to participate in the prayer invocations, the Commission would be unable to ensure that speakers are members of bonafide religious organizations, as opposed to commercial entities or other groups with missions completely unrelated to the Commissions practice of solemnizing its meetings with an invocation. Appellants misplace their reliance on the Fourth Circuits decision in Joyner v. Forsyth County, N.C., 653 F.3d 341 (4th Cir.2011), and the Seventh Circuits decision in Hinrichs v. Bosma, 440 F.3d 393 (7th Cir.2006), to argue that the Policy is unconstitutional on its face. Joyner and Hinrichs did not involve successful facial challenges to legislative prayer policies. In Joyner, plaintiffs Janet Joyner and Constance Blackmon challenged the Forsyth County Board of Commissioners (Forsyth County) practice of beginning its meetings with an invocation delivered by a local religious leader. 653 F.3d at 342. In 2007, Forsyth County adopted a formal written policy. Id. at 343. Using the Yellow Pages, [I]nternet research, and consultation with the local Chamber of Commerce, the clerk to the Board compiled and maintained the Congregations Lista database of all religious congregations with an established presence in the community. Id. The list was updated once a year, and any congregation could confirm its inclusion by writing to the clerk. Id. The clerk mailed a letter to all religious leaders on the Congregations List
and informed those individuals that they were eligible to deliver an invocation and could schedule an appointment on a first-come, first-serve basis. Id. The letter informed the religious leaders that the opportunity was voluntary, and that the Board requests only that the prayer opportunity not be exploited as an effort to convert others to the particular faith of the invocational speaker, nor to disparage any faith or belief different than that of the invocational speaker. Id. Speakers were not scheduled for consecutive meetings, nor were they scheduled for more than two meetings in any calendar year. Id. Essentially, the Forsyth Countys facial policy in Joyner was identical to the Commissions Policy here. *11 However, the Fourth Circuit in Joyner held that Forsyth Countys policy, as implemented, cannot withstand scrutiny because [t]he undisputed record shows that the prayers delivered at the outset of Board meetings from May 29, 2007 through December 15, 2008 referred to Jesus, Jesus Christ, Christ, or Savior with overwhelming frequency. Id. at 349 (internal quotation marks omitted). Because almost four-fifths of prayers contained such explicit sectarian references, the court of appeals held that the application of the policy ran afoul of the Supreme Courts decision in Marsh. Id. at 34950. However, the court of appeals observed that the Forsyth Countys policy was neutral on its face. Id. at 353. It was the implementation of the policy that the court of appeals held unconstitutional. Appellants reliance on Hinrichs is also inapposite. In Hinrichs, four taxpayers sued the Speaker of the Indiana House of Representatives, challenging the Indiana Houses 188 year-old practice of opening official meetings with a brief prayer or invocation. 440 F.3d at 39495. The Indiana House did not have a formal policy. The record reflected that a majority of the prayers for the 2005 calendar year were Christian prayers, which were identifiable by supplications to Christ. Id. at 395. After a bench trial, the district court held that the consistent and pervasive use of Christian invocations in Indiana is the sort of practice that Marsh found unacceptable because [i]t is a prayer opportunity [that] has been exploited to ... advance ... one ... faith or belief. Id. at 39899 (second set of brackets in original). Like Joyner, the Hinrichs court of appeals did not determine that a prayer policy was unconstitutional on its face. Rather, the Indiana Houses prayer practice, as implemented, was determined to be unconstitutional by the district court, and the Seventh Circuit denied the Speaker a stay of that ruling.9 Here, the Policy is facially constitutional. The Policy aims to respect the diversity of all religious groups, and it does 8
not seek to advance one faith or belief over another. The Policy is similar to other policies that have been recognized as facially neutral by our sister circuits. See, e.g., Rubin v. City of Lancaster, 710 F.3d 1087, 109798 (9th Cir.2013); Atheists of Fla., Inc. v. City of Lakeland, Fla., 713 F.3d 577, 59293 (11th Cir.2013); Joyner, 653 F.3d at 353. Indeed, not one of our sister circuits that have addressed this same issue have struck down a legislatures policy as facially unconstitutional. Accordingly, the district courts decision that Appellants are not likely to succeed on the merits of their facial challenge to the Policy is correct. On its face, the Policy complies with Marsh and does not advance one faith or belief over another. Thus, the district court properly denied to issue a preliminary injunction on this basis.
whether the Commissions application of its Policy proselytizes or advances Christianity or disparages other beliefs. As the district court put it: This dearth of evidence-necessarily brought about by the brevity of the period between the adoption of the [P]olicy and the hearing on Plaintiffs Motion-is drawn into sharp relief when compared with the facts before other courts presented with similar questions. For example, in Hinrichs, the Seventh Circuit considered a prayer practice that dated back 188 years, and it reviewed over 50 individual invocations. See Hinrichs, 440 F.3d at 395. The plaintiffs in Pelphrey presented seven years worth of legislative prayer. See Pelphrey, 547 F.3d at 1267. And in Joyner, even though a written policy was adopted mid-litigation, the Fourth Circuit was presented with a record comprising more than one year of post-policy prayers. See Joyner, 653 F.3d at 344. With almost a year of time that has passed since the Policys implementation, the district court is now in a position to address this aspect of Appellants constitutional challenge. This case should continue through its regular course.10
C. AsApplied Challenge to Policy *12 [2] Although the Policy is constitutional on its face, it can still be unconstitutional as implemented by the Commission. Ordinarily, [t]he usual judicial practice is to address an as-applied challenge before a facial challenge ... because this sequencing decreases the odds that facial attacks will be addressed unnecessarily. Berry v. Schmitt, 688 F.3d 290, 302 (6th Cir.2012) (quoting Connection Distrib. Co. v. Holder, 557 F.3d 321, 32728 (6th Cir.2009) (en banc)). However, because there were only two post-policy prayer invocations, the district court determined that an as-applied challenge was not ripe for judicial review due to the lack of a developed record. We agree. As described above, the record before the district court displayed that two meetings occurred after the implementation of the Policy. Both meetings began with prayers which referenced Jesus. Under Marsh, prayer invocations are appropriate as long as they do not proselytize or advance any one, or ... disparage any other, faith or belief. 463 U.S. at 79495, 103 S.Ct. 3330. The district court was correct in concluding that a record of two prayers after the implementation of the Policy is insufficient to determine whether the Commissions Policy, as implemented, is unconstitutional and violative of Marsh. Based on two instances in a relatively short period of time, the Court cannot say Footnotes
* **
IV. CONCLUSION For the reasons stated above, we affirm the district courts denial of Appellants motion for a preliminary injunction.
The Honorable Avern Cohn, Senior United States District Judge for the Eastern District of Michigan, sitting by designation. We amend the caption as reflected in this opinion.
The Chattanooga Freethought Association is a self-described social, educational, and service organization for all atheists, agnostics, skeptics, and rational thinkers in the Chattanooga, TN and North Georgia area. Chattanooga Freethought Association, http:// www.chattfreethought.com/ (last visited May 17, 2013). Its mission includes, among other things, to defend and support the separation of church and state. Id. We use the term as-applied challenge to be consistent with the terminology used by the district court and the parties. However, by as applied, we are referring to the Commissions prayer policy as implemented, not merely as it is (or might be) applied against Appellants. According to its website, the Freedom From Religion Foundation works as an umbrella for those who are free from religion and are committed to cherished principle of separation of state and church. About FFRF, http://ffrf.org/about (last visited May 17, 2013). To qualify for tax-exempt status under I.R.C. 501(c)(3), an organization (1) must be organized and operated exclusively for religious ... purposes; (2) must ensure that no part of the net earnings ... inure[ ] to the benefit of any private shareholder or individual; (3) must ensure that no substantial part of the activities can be carried on as propaganda or otherwise influence legislation; and (4) cannot participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office. The evidentiary hearing was held on July 26, 2012. Prayer invocation speakers were scheduled through November 29, 2012. Lemon established a three-prong test for determining whether the Establishment Clause is violated: First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster an excessive government entanglement with religion. 403 U.S. at 61213, 91 S.Ct. 2105 (internal citations omitted). In assessing Appellants facial challenge, the district court articulated that: A facial challenge to a legislative [a]ct is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the [a]ct would be valid, quoting United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). It is not apparent that the Salerno no set of circumstances test governs facial challenges under the Establishment Clause. See Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 31314, 120 S.Ct. 2266, 147 L.Ed.2d 295 (2000) (analyzing a facial challenge in an Establishment Clause case without reference to Salerno); Bowen v. Kendrick, 487 U.S. 589, 60002, 108 S.Ct. 2562, 101 L.Ed.2d 520 (1988) (same); id. at 627 n. 1, 108 S.Ct. 2562 (Blackmun, J., dissenting) (agreeing with majoritys implicit decision not to apply Salerno); Commack SelfServ. Kosher Meats, Inc. v. Weiss, 294 F.3d 415, 425 n. 7 (2d Cir.2002) (declining to decide whether the Salerno test applied to facial challenge under the Establishment Clause). We need not decide whether the Salerno test applies because Marsh supplies the controlling standard for legislative prayer cases. In a later opinion, the Seventh Circuit concluded that the taxpayers lacked standing and reversed the district courts judgment on that basis. See Hinrichs v. Speaker of the House of Representatives of the Ind. Gen. Assembly, 506 F.3d 584 (7th Cir.2007). The Supreme Court recently granted certiorari in a legislative prayer case. See Town of Greece v. Galloway, U.S. , 133 S.Ct. 2388, 185 L.Ed.2d 1103 (2013). In Galloway v. Town of Greece, 681 F.3d 20, 22 (2d Cir.2012), the Second Circuit determined that the Town of Greeces prayer practice [, as implemented,] impermissibly affiliated the town with a single creed, Christianity. In reaching this determination, the Second Circuit held that the appropriate question was whether the towns practice, viewed in its totality by an ordinary, reasonable observer, conveyed the view that the town favored or disfavored certain religious beliefs. Id. at 29. On the record before it, the Second Circuit concluded that the towns prayer practice must be viewed as an endorsement of a particular religious viewpoint. Id. at 30. The question presented in the petition for certiorari in light of Marsh is: Whether the court of appeals erred in holding that a legislative prayer practice violates the Establishment Clause notwithstanding the absence of discrimination in the selection of prayer-givers or forbidden exploitation of the prayer opportunity.
5 6 7
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11
In re Lenherrs Estate, 455 Pa. 225 (1974) 314 A.2d 255
455 Pa. 225 Supreme Court of Pennsylvania. In re ESTATE of Leo A. LENHERR, Deceased. Appeal of Diane L. MAJORAS, Executrix of the Estate of Leo Lenherr. Jan. 24, 1974. Appeal from decree of Court of Common Pleas of Allegheny County, Orphans Court Division, at No. 4067, J. Frank McKenna, Jr., J., denying marital exemption to transfer inheritance tax. The Supreme Court, No. 107 March Term, 1973, Nix, J., held that even though decedent, had been divorced on grounds of adultery from his then wife in a proceeding in which second wife was named as corespondent, and second wife had been divorced from her then husband on grounds of adultery in a proceeding in which decedent was named as corespondent, and thus decedent and second wife were forbidden to marry under Pennsylvania statute prohibiting marital partner guilty of adultery from marrying his or her paramour during lifetime of former spouse, West Virginia marriage of decedent to second wife should be recognized in Pennsylvania for purposes of marital exemption to transfer inheritance tax. Reversed and remanded with directions. Manderino, J., concurred in result. Eagen and Pomeroy, JJ., dissented. Roberts, J., took no part in consideration or decision of case.
[3] [2]
J., with two Justices concurring and one Justice concurring in the result.) 48 P.S. 169. 2 Cases that cite this headnote
Divorce Right to marry; leave of court Under Pennsylvania statute prohibiting marital partner guilty of adultery from marrying his or her paramour during lifetime of former spouse, decedent, who was divorced on grounds of adultery in proceeding in which second wife was named as corespondent, and second wife, who was divorced from her then husband on grounds of adultery in a proceeding in which decedent was named as corespondent, were forbidden to marry. (Per Nix, J., with two Justices concurring and one Justice concurring in the result.) 48 P.S. 169. 2 Cases that cite this headnote
Taxation Relationship of Parties Even though decedent had been divorced on grounds of adultery from his then wife in a proceeding in which second wife was named as corespondent, and second wife had been divorced from her then husband on grounds of adultery in a proceeding in which decedent was named as corespondent, and thus decedent and second wife were forbidden to marry under Pennsylvania statute prohibiting marital partner guilty of adultery from marrying his or her paramour during lifetime of former spouse, West Virginia marriage of decedent to second wife should be recognized in Pennsylvania for purposes of marital exemption to transfer inheritance tax. (Per Nix, J., with two Justices concurring and one Justice concurring in the result.) 48 P.S. 169; 72 P.S. 2485-311, 2485-404. 3 Cases that cite this headnote
West Headnotes (3)

[1]
Divorce Right to marry; leave of court Statute prohibiting marital partner guilty of adultery from marrying his or her paramour during lifetime of former spouse was not intended to apply only to those found guilty of adultery in a criminal proceeding, and an adjudication of adultery in a divorce proceeding is sufficient to trigger the prohibition. (Per Nix,
Attorneys and Law Firms *226 **256 Joseph M. Ludwig, Ludwig & Wilson, Pittsburgh, for appellant. Frederick N. Frank, Asst. Atty. Gen., Israel Packel, Atty. Gen., Donnetta W. Ambrose, Pittsburgh, for appellee. Before JONES, C.J., and EAGEN POMEROY, NIX and MANDERINO, JJ. Opinion OBRIEN,
entered and while William Barney and Anna Lenherr were living, Leo Lenherr and Sarah Gillespie Barney were married in West Virginia. They returned to Pennsylvania where they lived as husband and wife until the death of Leo Lenherr in August of 1971. At the outset, it should be noted that all parties agree that Leo and Sarahs marriage was valid under the applicable laws of West Virginia. This dispute arises because of the Act of June 17, 1971, P.L. --, No. 16, s 1, amending, Act of March 13, 1815, P.L. 150, s 9, 48 P.S. s 169 (Supp. 1973-74), which provides: The husband *228 or wife, who shall have been guilty of the crime of adultery, shall not marry the person with whom the said crime was committed during the life of the former wife or husband. . . . See also, Act of August 22, 1953, P.L. 1344, s 5, 48 P.S. s 1-5(h): No license to marry shall be issued by any clerk of the orphans court: . . . To a person divorced by his or her former spouse on the grounds of adultery, for the marriage of such person to the person with whom the crime of adultery was committed, during the lifetime of the former husband or wife. The Commonwealth argues that, by virtue of the above statutes, Leo and Sarah were under a personal disability not to marry each other while either former spouse yet lived,1 and that Pennsylvania should not recognize their marriage for purposes of the marital exemption under the Transfer Inheritance Tax, supra, regardless of the statuts of that marriage in other jurisdictions. [1] [2] We must determine first whether or not Pennsylvania law forbade the marriage of Leo and Sarah, for if it did not, then appellant must prevail regardless of whether we apply Pennsylvania or West Virginia Law. Section 169 prohibits the marital partner guilty of adultery from marrying his or her paramour during the lifetime of the former spouse. Section 1-5 is a companion provision which prohibits the issuance of a license for such a marriage. While Section 169 does not specify the nature of the judicial proceeding in which the adjudication of guilt is to be made, Section 1-5 specifies that no license shall be issued to a person divorced . . . on the grounds of adultery. . . . This *229 language leaves little doubt that an adjudication of adultery in a divorce proceeding is sufficient to trigger the prohibition of Sections 169 and 1-5, and we must dismiss appellants contention that the legislature intended the prohibition to apply only to those 2
OPINION NIX, Justice. The sole issue involved in this appeal is whether or not the West Virginia marriage of Sarah T. Lenherr to Leo A. Lenherr, the decedent, will be recognized in this Commonwealth for purposes of the marital exemption *227 to the Transfer Inheritance Tax. See, Act of June 15, 1961, P.L. 373, Art. III, s 311, 72 P.S. s 2485-311. If their marriage is so recognized, property held in their joint names will pass from the decedent to Sarah Lenherr without the imposition of a Pennsylvania inheritance tax. The Commonwealth contends that the property should be taxed at the rate applicable to transfers to collateral heirs, see, Act of June 15, 1961, P.L. 373, Art. IV, s 404, 72 P.S. s 2485-404, and it therefore claims a tax of $6,960.21 or fifteen percent of jointly owned securities in the net amount of $46,401.40. Diane L. Majoras as executrix of the estate of Leo Lenherr appealed the denial of the marital exemption to the Orphans Court Division of the Court of Common Pleas of Allegheny County. After a hearing, the exemption was denied and exceptions argued before the Orphans Court en banc were dismissed. This appeal follows. The pertinent facts are as follows. On October 23, 1930, the deceased, Leo A. Lenherr was divorced on the grounds of adultery from his them wife Anna Kelly Lenherr and Sarah Barney (Lenherr) was named as the co-respondent. On December 27, 1930, Sarah was divorced from her then husband William K. Barney on the **257 grounds of adultery and Leo Lenherr was named as co-respondent. On March 12, 1932, after the two divorce decrees were
found guilty of adultery in a criminal proceeding.2 Moreover, Sarahs divorce decree specifically forbade her to marry Leo during her former husbands lifetime. We are therefore bound to conclude that, under Pennsylvania law, Sarah and Leo were forbidden to marry. See, Stulls Estate, 183 Pa. 625, 39 A. 16 (1898); Maurer v. Maurer, 163 Pa.Super. 264, 60 A.2d 440 (1948). Having concluded that the laws of Pennsylvania and West Virginia are in conflict with regard to the validity of this marriage, we must next determine which law should be applied in this case. In addressing choice-of-law problems, several competing **258 principles come into play3 and this Court has not been loath to reject rigid doctrines which fail to accommodate these principles. See, Griffith v. United Air Lines, 416 Pa. 1, 203 A.2d 796 (1964). Specifically regarding conflicts as to recognition of marital status, there is a strong policy favoring uniformity of result. In an age of widespread travel and ease of mobility, it would create inordinate confusion *230 and defy the reasonable expectations of citizens whose marriage is valid in one state to hold that marriage invalid elsewhere. On the other hand, each state may, within constitutional limits, create laws and procedures concerning the sanctification of marriages, see, Loughran v. Loughran, 292 U.S. 216, 54 S.Ct. 684, 78 L.Ed. 1219 (1934), and those laws and procedures should not be circumvented by the sham of traveling to a nearby less stringent jurisdiction. The Restatement provides the following guidelines for resolving these conflicting principles: (1) The validity of a marriage will be determined by the local law of the state which, with respect to the particular issue, has the most significant relationship to the spouses and the marriage under the principles stated in s 6. (See n.2, supra.) (2) A marriage which satisfies the requirements of the state where the marriage was contracted will everywhere be recognized as valid unless it violates the strong public policy of another state which had the most significant relationship to the spouses and the marriage at the time of the marriage. Restatement 2d, supra, s 283. Since both Leo and Sarah were residents of Pennsylvania before and after their West Virginia marriage, we have no trouble concluding that Pennsylvania has the most significant relationship to the spouses and the marriage. It remains for us to determine whether the policy behind
section 169 is so strong that it must be given extraterritorial effect in this case, thereby destroying the uniformity of result which is so desirable in a case concerning the recognition of a marriage that is valid in the state where it was contracted. In resolving that conflict, we must realize that the strength of the policy behind section 169 depends to a significant degree upon the incident of marriage under consideration. For example, the legislature has determined that at least one incident of marriage-the legitimacy *231 of the children-is not to be denied despite the prior adjudication of adultery. See, Act of June 17, 1971, supra. Our task therefore is to balance on the one hand the policy behind section 169, As it relates to the marital exemption to the inheritance tax, against the need for uniformity and predictability of result on the other.4 It is apparent from the terms of section 169 that the provision is intended not so much as a penalty upon the parties who failed to recognize the sanctity of the former marriage vow as it is intended to protect the sensibilities of the injured spouse. Were it otherwise, the prohibition **259 would not be limited to the lifetime of that spouse. Compare, Newman v. Kimbrough, 59 S.W. 1061, 1064 (Tenn.Ch.App.1900). As we said in Stulls Estate, supra, 183 Pa. at 632, 39 A. at 18: . . . Now, believing, as we do, that the statute in question, which we are called upon to construe in the case at bar, is expressive of a decided state policy, not to permit the sensibilities of the injured and innocent husband or wife, who has been driven by the adultery of his or her consort to the necessity of obtaining a divorce, to be wounded, or the public decency to be affronted, by being forced to witness the continued cohabitation of the adulterous pair, even under the guise of a subsequent marriage performed in another state for the purpose of evading our statute, and believing that the moral sense of the community is shocked and outraged by such an exhibition, we will not allow such parties to shield themselves behind a general rule of the law of marriage, the wisdom and perpetutity of which depends as much upon the judicious exceptions thereto as upon the inherent right of the rule itself. *232 While that policy may yet be quite strong with 3
respect to cohabitation and many other incidents of marriage, as noted above, we are concerned here only with the marital exemption to the inheritance tax. We are not convinced that the denial of that exemption will foster the policy of section 169 to any significant extent. Such denial could do so only if it: (1) could deter either the adulterous conduct during the valid marriage or the subsequent marriage of the guilty spouse and his or her paramour; or (2) could in any way spare the aggrieved former spouse the affront caused by such marriage. [3] We are convinced that denying the marital exemption would be all but fruitless in achieving the above goals. Moreover, we must balance any illusory gain from such denial against the need fur uniformity of result in this area and against the statutory policy that the property of two persons living as man and wife and held in their joint names with right of survivorship is in reality the product of their joint efforts and should pass to the survivor without the imposition of a tax. Both of those policies would be frustrated by applying section 169 to this marriage. On balance, we find that the degree to which the policy behind section 169 will be fostered by application in this case is significantly outweighed by Footnotes
1
countervailing policies. We therefore decline to apply Pennsylvania law to invalidate this marriage for this purpose. The Decree of the Orphans Court is reversed and the case is remanded for proceedings consistent with this opinion.
MANDERINO, J., concurs in the result. EAGEN and POMEROY, JJ., dissent. ROBERTS, J., took no part in the consideration or decision of this case. Parallel Citations 314 A.2d 255
Since William K. Barney was alive at the death of Leo Lenherr, this alleged disability to marry did not terminate in time to permit validation of the relationship on a theory of common law marriage. See, Warrenberger v. Folson, 239 F.2d 846 (3rd Cir. 1956). The only Pennsylvania case specifically deciding this issue has reached the same result. Kalmbacher v. Kalmbacher, 63 D. & C. 195, 202 (1945). The Restatement of the Law, Conflict of Laws 2d, s 6 outlines those principles as follows: (a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue, (d) the protection of justified expectations, (e) the basic policies underlying the particular field of law, (f) certainty, predictability and uniformity of result, and (g) ease in the determination and application of the law to be applied. Such an approach to conflicts is not novel. See, In re Dalip Singh Birs Estate, 83 Cal.App.2d 256, 188 P.2d 499 (1948), suggesting that a polygamous marriage was valid for purposes of succession regardless of whether it might be valid for purposes of cohabitation.
End of Document
Kerrigan v. Commissioner of Public Health, 289 Conn. 135 (2008) 957 A.2d 407
289 Conn. 135 Supreme Court of Connecticut. Elizabeth KERRIGAN et al. v. COMMISSIONER OF PUBLIC HEALTH et al. No. 17716. | Argued May 14, 2007. | Decided Oct. 28, 2008.
West Headnotes (30)

[1]
Marriage Same-Sex and Other Non-Traditional Unions Same-sex couples alleging equal protection violation upon denial of marriage licenses established legally cognizable injury in their exclusion from the institution of marriage, notwithstanding existence of civil union law, which entitled same-sex couples to the same legal rights as those available through marriage; in light of a history of invidious discrimination against gay persons, the existence of the classification gave credence to the perception that separate treatment was warranted for the same reasons that gave rise to past discrimination. C.G.S.A. Const. Art. 1, 20; Amend. Arts. 5, 21; C.G.S.A. 46b38aa et seq. 2 Cases that cite this headnote
Synopsis Background: Same-sex couples denied marriage licenses brought action against state and local officials, seeking declaration that any statute, regulation or common-law rule precluding otherwise qualified individuals from marrying someone of the same sex, or because they are gay or lesbian couples, violates the state constitution. The Superior Court, Judicial District of New Haven, 49 Conn.Supp. 644, 909 A.2d 89,Pittman, J., rendered summary judgment in favor of defendants. Couples appealed.
Holdings: On transfer, the Supreme Court, Palmer, J., held that: couples established legally cognizable injury in their exclusion from the institution of marriage, notwithstanding existence of civil union law; as a matter of first impression, sexual orientation is a quasi-suspect classification, such that laws discriminating against gay persons are subject to intermediate scrutiny, abrogating State v. John M., 94 Conn.App. 667, 894 A.2d 376; and laws restricting civil marriage to heterosexual couples violated same-sex couples state constitutional equal protection rights. Reversed and remanded with direction. Borden, J., dissented and filed opinion, in which Vertefeuille, J., joined. Vertefeuille, J., dissented and filed opinion. Zarella, J., dissented and filed opinion.
[3] [2] [1]
[2]
Constitutional Law Discrimination and Classification A cognizable constitutional claim arises whenever the government singles out a group for differential treatment.
[3]
Appeal and Error Review Dependent on Whether Questions Are of Law or of Fact Constitutionality of a statute presents a question of law over which Supreme Court review is plenary. 4 Cases that cite this headnote
[4]
Constitutional Law Presumptions and Construction as to 1
Constitutionality Validly enacted statute carries with it a strong presumption of constitutionality.
Operation Within States of Constitution and Laws of United States Federal constitutional and statutory law establishes a minimum national standard for the exercise of individual rights and does not inhibit state governments from affording higher levels of protection for such rights. 2 Cases that cite this headnote
[5]
Constitutional Law Proof beyond a reasonable doubt Constitutional Law Burden of Proof
[9]
Those who challenge a statutes constitutionality must sustain the heavy burden of proving its unconstitutionality beyond a reasonable doubt. 5 Cases that cite this headnote
Constitutional Law Context of the times State constitutional provisions must be interpreted within the context of the times and in accordance with the demands of modern society.
[6]
Constitutional Law Presumptions and Construction as to Constitutionality The court will indulge in every presumption in favor of a statutes constitutionality.
[10]
Constitutional Law Similarly situated persons; like circumstances Equal protection clause places no restrictions on the states authority to treat dissimilar persons in a dissimilar manner. U.S.C.A. Const.Amend. 14; C.G.S.A. Const. Art. 1, 20; Amend. Arts. 5, 21. 7 Cases that cite this headnote
[7]
Constitutional Law Judicial Authority and Duty in General Constitutional Law Clearly, positively, or unmistakably unconstitutional When a question of constitutionality is raised, courts must approach it with caution, examine it with care, and sustain the legislation unless its invalidity is clear. 3 Cases that cite this headnote
[11]
Constitutional Law Statutes and other written regulations and rules To implicate the equal protection clause, it is necessary that the state statute in question, either on its face or in practice, treat persons standing in the same relation to it differently; the inquiry is not whether persons are similarly situated for all purposes, but whether they are similarly situated for purposes of the law challenged. U.S.C.A. Const.Amend. 14; C.G.S.A. Const. Art. 1, 20; Amend. Arts. 5, 21. 10 Cases that cite this headnote 2
[8]
Constitutional Law Relation to Constitutions of Other Jurisdictions States
21. 1 Cases that cite this headnote

[12]
Constitutional Law Economic or social regulation in general In areas of social and economic policy that neither proceed along suspect lines nor infringe fundamental constitutional rights, the equal protection clause is satisfied as long as there is a plausible policy reason for the classification, the legislative facts on which the classification is apparently based rationally may have been considered to be true by the governmental decisionmakers, and the relationship of the classification to its goal is not so attenuated as to render the distinction arbitrary or irrational. U.S.C.A. Const.Amend. 14; C.G.S.A. Const. Art. 1, 20; Amend. Arts. 5, 21. 2 Cases that cite this headnote
[15]
Constitutional Law Intermediate scrutiny in general Constitutional Law Illegitimacy Constitutional Law Sex or gender Intermediate scrutiny typically is used to review laws that employ quasi-suspect classifications such as gender or illegitimacy, and on occasion intermediate scrutiny has been applied to review of a law that affects an important, though not constitutional, right; under intermediate scrutiny, the government must show that the challenged legislative enactment is substantially related to an important governmental interest. 4 Cases that cite this headnote
[13]
Constitutional Law Strict scrutiny and compelling interest in general If state action invidiously discriminates against a suspect class or affects a fundamental right, the action passes constitutional muster under equal protection clause only if it survives strict scrutiny; under that heightened standard, the state must demonstrate that the challenged statute is necessary to the achievement of a compelling state interest. C.G.S.A. Const. Art. 1, 20; Amend. Arts. 5, 21.
[16]
Constitutional Law Marriage and civil unions Same-sex couples and heterosexual couples wishing to marry were similarly situated for purposes of equal protection challenge to state statutory scheme governing civil marriage. C.G.S.A. Const. Art. 1, 20; Amend. Arts. 5, 21. 4 Cases that cite this headnote
[17] [14]
Constitutional Law Strict scrutiny and compelling interest in general Because members of classes enumerated by state constitution have been deemed to be especially subject to discrimination, their rights are protected by requiring encroachments on those rights to pass a strict scrutiny test. C.G.S.A. Const. Art. 1, 20; Amend. Arts. 5,
Constitutional Law Particular Classes Although the state constitutional framers failure expressly to include a particular group among those deemed to be especially subject to discrimination is a relevant consideration in determining whether that group is entitled to special protection, it is not dispositive of the issue. C.G.S.A. Const. Art. 1, 20; Amend.
Arts. 5, 21. 1 Cases that cite this headnote
5, 21. 5 Cases that cite this headnote
[18]
Constitutional Law Particular Classes For purposes of determining whether a group is entitled to suspect or quasi-suspect class status, immutability of the identifying or distinguishing characteristic is not a requirement, but a factor. 3 Cases that cite this headnote
[21]
Constitutional Law Sex and procreation Because sexual orientation is such an essential component of personhood, even if there is some possibility that a persons sexual preference can be altered, it would be wholly unacceptable for the state to require anyone to do so. 1 Cases that cite this headnote
[19]
Constitutional Law Intermediate scrutiny in general Constitutional Law Strict scrutiny and compelling interest in general Although the same factors are relevant for the purpose of identifying both suspect and quasi-suspect classes, courts apply those factors less stringently with respect to groups claiming quasi-suspect class status because the intermediate scrutiny applicable to a statutory classification that discriminates on the basis of quasi-suspect status is less rigorous or demanding than the strict scrutiny to which laws burdening a suspect class are subject.
[22]
Constitutional Law Particular Classes Political powerlessness aspect of the inquiry into whether a group is a suspect or quasi-suspect class for purposes of equal protection does not require a showing that the group seeking recognition as a protected class is, in fact, without political power; the question is whether the group lacks sufficient political strength to bring a prompt end to the prejudice and discrimination through traditional political means. C.G.S.A. Const. Art. 1, 20; Amend. Arts. 5, 21. 3 Cases that cite this headnote
[23] [20]
Constitutional Law Sexual orientation Sexual orientation is a quasi-suspect classification, and thus classifications that discriminate against gay persons are to be reviewed under the intermediate scrutiny standard, requiring government to show that challenged laws bear a substantial relation to an important governmental interest; abrogating State v. John M., 94 Conn.App. 667, 894 A.2d 376.C.G.S.A. Const. Art. 1, 20; Amend. Arts.
Courts Decisions of United States Courts as Authority in State Courts When interpreting state constitution, it is appropriate to consider relevant federal precedent. 3 Cases that cite this headnote
[24]
Constitutional Law Marriage; bigamy 4
Marriage Same-Sex and Other Non-Traditional Unions Religious autonomy is not threatened by recognizing the right of same-sex couples to marry civilly; religious freedom will not be jeopardized by the marriage of same-sex couples because religious organizations that oppose same-sex marriage as irreconcilable with their beliefs will not be required to perform same-sex marriages or otherwise to condone same-sex marriage or relations. 6 Cases that cite this headnote
[27]
Constitutional Law Equal protection Upon equal protection challenge relating to a quasi-suspect classification, the burden of justification is demanding and it rests entirely on the state. C.G.S.A. Const. Art. 1, 20; Amend. Arts. 5, 21.
[25]
Constitutional Law Marriage and civil unions Because marriage is a state-sanctioned and state-regulated institution, religious objections to same-sex marriage cannot play a role in a determination of whether constitutional principles of equal protection mandate same-sex civil marriage. C.G.S.A. Const. Art. 1, 20; Amend. Arts. 5, 21. 2 Cases that cite this headnote
[28]
Constitutional Law Intermediate scrutiny in general Upon equal protection challenge relating to a quasi-suspect classification, state must show at least that the challenged classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives; the justification must be genuine, not hypothesized or invented post hoc in response to the litigation. C.G.S.A. Const. Art. 1, 20; Amend. Arts. 5, 21.
[26]
Constitutional Law Marriage and civil unions Marriage Power to regulate and control Laws restricting the institution of civil marriage to heterosexual couples were not substantially related to an important governmental interest in the regulation of marriage, and thus violated same-sex couples state constitutional equal protection rights; although mandate that same-sex couples be permitted to marry would result in change in the definition of marriage as traditionally understood, tradition and moral approbation was insufficient justification for discrimination, and there was no showing that recognition of same-sex marriage would alter the nature of marriage. C.G.S.A. Const. Art. 1, 20; Amend. Arts. 5, 21; C.G.S.A. 46b38nn. 3 Cases that cite this headnote
[29]
Constitutional Law Statutes and other written regulations and rules When tradition is offered to justify preserving a statutory scheme that has been challenged on equal protection grounds, courts must determine whether the reasons underlying that tradition are sufficient to satisfy constitutional requirements. C.G.S.A. Const. Art. 1, 20; Amend. Arts. 5, 21.
[30]
Constitutional Law 5
Intermediate scrutiny in general Moral disapprobation is an inadequate reason for discriminating against members of a quasi-suspect class. C.G.S.A. Const. Art. 1, 20; Amend. Arts. 5, 21.
the American Academy of Matrimonial Lawyers as amicus curiae. Linda L. Morkan and Kori Termine Wisneski filed a brief for the Lambda Legal Defense and Education Fund, Inc., as amicus curiae. Timothy S. Fisher, Charles D. Ray and Brian P. Rice filed a brief for Peter W. Bardaglio et al. as amici curiae. Leslie I. JenningsLax filed a brief for Barbara Aaron et al. as amici curiae.
West Codenotes Held Unconstitutional C.G.S.A. 46b38nn Attorneys and Law Firms **410 Bennett C. Klein, pro hac vice, with whom were Kenneth J. Bartschi and Mary L. Bonauto, pro hac vice, and, on the brief, Karen L. Loewy, pro hac vice, Jennifer L. Levi, pro hac vice, and Karen L. Dowd, Maureen Murphy and Renee Redman, for the appellants (plaintiffs). Jane R. Rosenberg, assistant attorney general, with whom were Robert W. Clark and Susan Quinn Cobb, assistant attorneys general, and, on the brief, Richard Blumenthal, attorney general, for the appellees (named defendant). Judith Ravel, Guilford, for the appellee (defendant Dorothy Bean, acting town clerk of the town of Madison). Jennifer A. Osowiecki filed a brief for Connecticut Clergy for Marriage Equality et al. as amici curiae. Daniel J. Klau filed a brief for Carlos Ball et al. as amici curiae. Sheila A. Huddleston, Christopher R. Drury, Lee Anne Duval and Kevin M. Roy filed a brief for Ian Ayres et al. as amici curiae. **411Noah B. Novogrodsky, Ben A. Solnit and Paul Guggina filed a brief for the International Human Rights Clinic of the University of Toronto Faculty of Law et al. as amici curiae. Stuart D. Rosen, William C. Heuer, Meghan Freed Pelletier, Stuart F. Delery, Nora Freeman Engstrom and Benjamin C. Mizer filed a brief for the Human Rights Campaign et al. as amici curiae. Sheila Horvitz filed a brief for the Connecticut chapter of
Martin B. Margulies, Emanuel Margolis, MaryKate Smith, Jennifer Gerarda Brown and Suzanne B. Goldberg filed a brief for the American Association of University Women in Connecticut et al. as amici curiae. Paul M. Smith, William M. Hohengarten, Eric Berger, Nathalie F.P. Gilfoyle and Sandra Rachel Baker filed a brief for the American Psychological Association et al. as amici curiae. Joseph Niglio, Paul R. Devin, Thomas Brejcha and Paul Benjamin Linton filed a brief for the Knights of Columbus as amicus curiae. Dwight G. Duncan and William T. Barrante filed a brief for the Alliance for Marriage as amicus curiae. Peter Wolfgang filed a brief for John Coverdale et al. as amici curiae. Michael K. Conway filed a brief for James Q. Wilson et al. as amici curiae. Anthony R. Picarello, Jr., Roger T. Severino and Howard M. Wood III filed a brief for the Becket Fund for Religious Liberty as amicus curiae. Gregg Hannan and Monte N. Stewart filed a brief for United Families Connecticut as amicus curiae. Howard M. Wood III filed a brief for Paul McHugh et al. as amici curiae. Vincent P. McCarthy, Laura Hernandez and Kristina J. Wenberg filed a brief for the Family Institute of Connecticut as amicus curiae. Mark W. Dost filed a brief for the Connecticut Catholic Conference, Inc., as amicus curiae. Hugh D. Hughes, Benjamin W. Bull, Glen Lavy, Christopher R. Stovall and Dale Schowengerdt filed a brief for the Family Research Council as amicus curiae. 6
BORDEN, NORCOTT, KATZ, PALMER, VERTEFEUILLE, ZARELLA and HARPER, Js.* Opinion PALMER, J. *140 The issue presented by this case is whether the state statutory prohibition against same sex marriage violates the constitution of Connecticut. The plaintiffs, eight same sex couples, commenced this action, claiming that the state statutory prohibition against same sex marriage violates their rights to substantive due process and equal protection under the state constitution. The trial court rendered summary judgment in favor of the defendant state and local officials upon determining that, because this states statutes afford same sex couples the right to enter into a civil union, which affords them the **412 same legal rights as marriage, the plaintiffs had not established a constitutionally cognizable harm. We conclude that, in light of the history of pernicious discrimination faced by *141 gay men and lesbians,1 and because the institution of marriage carries with it a status and significance that the newly created classification of civil unions does not embody, the segregation of heterosexual and homosexual couples into separate institutions constitutes a cognizable harm. We also conclude that (1) our state scheme discriminates on the basis of sexual orientation, (2) for the same reasons that classifications predicated on gender are considered quasi-suspect for purposes of the equal protection provisions of the United States constitution, sexual orientation constitutes a quasi-suspect classification for purposes of the equal protection provisions of the state constitution, and, therefore, our statutes discriminating against gay persons are subject to heightened or intermediate judicial scrutiny, and (3) the state has failed to provide sufficient justification for excluding same sex couples from the institution of marriage. In light of our determination that the states disparate treatment of same sex couples is constitutionally deficient under an intermediate level of scrutiny, we do not reach the plaintiffs claims implicating a stricter standard of review, namely, that sexual orientation is a suspect classification, and that the states bar against same sex marriage infringes on a fundamental right in violation of due process and discriminates on the basis of sex in violation of equal protection. In accordance with our conclusion that the statutory scheme impermissibly discriminates against gay persons on account of their sexual orientation, we reverse the trial courts judgment and remand the case with direction to grant the plaintiffs motion for summary judgment.
The record reveals the following undisputed facts and procedural history. On August 24, 2004, the plaintiffs, *1422 eight same sex couples who applied for and were denied marriage licenses by the town of Madison, commenced this action, seeking a declaratory judgment and injunctive relief against the defendants, J. Robert Galvin, in his official capacity as commissioner of the state department of public health, and Dorothy Bean, in her official capacity as acting town clerk and deputy registrar of vital statistics of the town of Madison. The plaintiffs sought, inter alia, a judgment declaring that, to the extent that any statute, regulation or common-law rule precludes otherwise qualified individuals from marrying someone of the same sex, or because they are gay or lesbian couples, such statutes, regulations and common-law rules violate various provisions of the state constitution, including the due process provisions of article first, 83 and 10,4 and **413 the equal protection provisions of article first, 15 and 20, as amended.6*143 The plaintiffs did not raise any claims under the United States constitution. The plaintiffs also sought an order directing Bean to issue a marriage license to each couple and the department of public health to register the plaintiffs marriages once they were performed.7 While the plaintiffs action was pending in the trial court, the legislature passed Public Acts 2005, No. 0510, now codified at General Statutes 46b38aa et seq. (civil union law), which established the right of same sex partners to enter into civil unions and conferred on such unions all the rights and privileges that are granted to spouses in a marriage. See General Statutes 46b38nn;8 see also General Statutes (Sup. 2008) 46b38oo.9 Under the civil union law, however, marriage is defined as the union of one man and one woman. General Statutes 46b38nn. In light of this intervening statutory development, the parties narrowed the issue posed by this action to whether the civil union law and *144 its prohibition against same sex marriage pass muster under the state constitution. Thereafter, the parties filed cross motions for summary judgment. In support of the plaintiffs motion, they claimed, inter alia, that this states statutes governing marriage and civil unions violate the due process and equal protection provisions of the state constitution because they deprive gay persons of the fundamental right to marry the person of their choice, and because they discriminate on the basis of both sex and sexual orientation. With **414 respect to their due process claim, the plaintiffs maintained that, because marriage is a fundamental right, the state bears the burden of demonstrating that any abridgement of the right has been narrowly tailored to effectuate a compelling state interest, 7
a burden which, the plaintiffs contended, the state cannot meet. With respect to their equal protection claims, the plaintiffs maintained that, by limiting marriage to the union of a man and a woman, our statutory scheme impermissibly segregates on the basis of sex in violation of the express prohibition against such treatment contained in article first, 20, of the state constitution, as amended by article five of the amendments. The plaintiffs contended that this states statutes contravene the state constitutional prohibition against sex discrimination because those statutes preclude a woman from doing what a man may do, namely, marry a woman, and preclude a man from doing what a woman may do, namely, marry a man. The plaintiffs also maintained that our laws barring same sex marriage impermissibly discriminate against gay persons, who, the plaintiffs claimed, constitute a suspect class or, at the least, a quasi-suspect class, under constitutional principles of *145 equal protection.10 In particular, the plaintiffs maintained that, because they are members of a suspect or quasi-suspect class, the state cannot discriminate against them in the absence of an exceptionally strong justification for doing so, a justification that the plaintiffs contended does not exist. In support of the defendants motion for summary judgment, they asserted that the plaintiffs had failed to demonstrate that they have suffered any harm as a result of the statutory bar against same sex marriage because, under the civil union law, gay persons are entitled to all of the rights that married couples enjoy. The defendants also maintained that this states ban on same sex marriage does not deprive the plaintiffs of a fundamental right because, since ancient times, marriage has been understood to be the union of a man and a woman, and only such rights that are deeply rooted in this [n]ations history and tradition ... and implicit in the concept of ordered liberty are deemed to be fundamental. (Citations omitted; internal quotation marks omitted.) Washington v. Glucksberg, 521 U.S. 702, 721, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997). The defendants contended that, in light of the universally understood definition of marriage as the union of a man and a woman, the right that the plaintiffs were asserting, namely, the right to marry any person of ones choosing, is not a fundamental right. The defendants also asserted that our statutory scheme does not discriminate on the basis of sex because, inter alia, it does not single out men or women as a class for disparate treatment, the touchstone of any sex discrimination claim. Those laws also do not discriminate on the basis of sexual orientation, the *146 defendants maintained, because gay persons are not prohibited from
marrying. According to the defendants, our laws are facially neutral because they treat homosexual and heterosexual persons alike by providing that anyone who wishes to marry may do so with a person of the opposite sex. Finally, the defendants asserted that, even if the statutory definition of marriage as an opposite sex union does discriminate on the basis of sexual orientation, nothing in the text or history of article first, 1, and article first, 20, as amended by articles **415 five and twenty-one of the amendments, supports the conclusion that the drafters of those provisions intended to extend special protection to gay persons as a suspect or quasi-suspect class. On the contrary, the defendants maintained that, because sexual orientation is not one of the eight categories enumerated in article first, 20, of the state constitution, as amended, namely, religion, race, color, ancestry, national origin, sex, and physical or mental disability, it must be presumed that that provision does not afford enhanced protection to persons on the basis of their sexual orientation. The defendants finally maintained that our statutory scheme does not run afoul of the state constitutions equal protection provisions because it bears a rational relationship to a legitimate state purpose, the test that the defendants asserted is applicable to the determination of whether that scheme passes muster under the equal protection provisions of the state constitution. The trial court granted the defendants motion for summary judgment and denied the plaintiffs motion for summary judgment. Kerrigan v. State, 49 Conn.Supp. 644, 667, 909 A.2d 89 (2006). The trial court concluded that the plaintiffs could not establish that they have suffered any legal harm that rises to constitutional magnitude; id., at 646, 909 A.2d 89; because [t]he effect of [the civil union law] has been *147 to create an identical set of legal rights in Connecticut for same sex couples and opposite sex couples. Id., at 655, 909 A.2d 89. The trial court further observed that, if the legislature had not passed the civil union law while the plaintiffs case was pending before it, the court then would have been required to undertake a traditional constitutional analysis of their claims. Id., at 654, 909 A.2d 89. The court reasoned, however, that the passage of the civil union law had rendered that analysis unnecessary because the plaintiffs no longer could establish that the laws of the state, either on their face or as applied, treat same sex couples differently than opposite sex couples. See id., at 655, 65859, 909 A.2d 89. In so concluding, the trial court expressly rejected the plaintiffs claim that the legislatures creation of the civil union for same sex couples, while retaining the status of marriage for 8
opposite sex couples, has the effect of creating for them a legal institution of lesser status. Id., at 658, 909 A.2d 89. The court explained: [Although] the plaintiffs may feel themselves to be relegated to a second class status, there is nothing in the text of the Connecticut statutes that can be read to place the plaintiffs there. Id. On appeal,11 the plaintiffs challenge the trial courts determination that Connecticuts civil union law does not discriminate against gay persons because same sex couples who have entered into a civil union are entitled to the same legal rights under state law as married couples. The plaintiffs also renew the various state constitutional claims that they raised in the trial court. We conclude, first, that the trial court improperly determined that the distinction between civil unions and marriage is constitutionally insignificant merely because a same sex couple who enters into a civil union enjoys the same legal rights as an opposite sex couple *148 who enters into a marriage. We also conclude that our statutory scheme governing marriage impermissibly discriminates against gay persons on the basis of their sexual orientation.
carries with it a special status. The plaintiffs therefore contend that their claim of unequal treatment cannot be dismissed solely because same sex couples who enter into a civil union enjoy the same rights under state law as married couples. The plaintiffs also claim that we must consider the legislatures decision to create civil unions for same sex couples in the context of the historical condemnation and discrimination that gay *149 persons have suffered.12 We agree with the plaintiffs that, despite the legislatures recent establishment of civil unions, the restriction of marriage to opposite sex couples implicates the constitutional rights of gay persons who wish to marry a person of the same sex.13 A cognizable constitutional claim arises whenever the government singles out a group for differential treatment. The legislature has subjected gay persons to precisely that kind of differential treatment by creating a separate legal classification for same sex couples who, like opposite sex couples, wish to have their relationship recognized under the law. Put differently, the civil union law entitles same sex couples to all of the same rights as married couples except one, that is, the freedom to marry, a right that has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men [and women] and fundamental to our very existence and survival. Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967). Indeed, marriage has been characterized as intimate to the degree of being sacred; Griswold v. Connecticut, 381 U.S. 479, 486, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); see also Turner v. Safley, 482 U.S. 78, 96, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987) (many religions recognize marriage as having spiritual significance); and an institution more basic in our civilization **417 than any other. Williams v. North Carolina, 317 U.S. 287, 303, 63 S.Ct. 207, 87 L.Ed. 279 (1942). Marriage, therefore, is not merely shorthand for a discrete set of legal rights and responsibilities but is one of the most fundamental of human relationships.... Davis v. *150 Davis, 119 Conn. 194, 203, 175 A. 574 (1934). Marriage ... bestows enormous private and social advantages on those who choose to marry. Civil marriage is at once a deeply personal commitment to another human being and a highly public celebration of the ideals of mutuality, companionship, intimacy, fidelity, and family.... Because it fulfills yearnings for security, safe haven, and connection that express our common humanity, civil marriage is an esteemed institution.... (Citation omitted; internal quotation marks omitted.) Goodridge v. Dept. of Public Health, 440 Mass. 309, 322, 798 N.E.2d 941 (2003).
[2]
**416 I
DECISION OF THE TRIAL COURT We first address the plaintiffs contention that the trial court improperly granted the defendants motion for summary judgment on the ground that the plaintiffs had failed to demonstrate any legally cognizable or actionable harm by virtue of the fact that the legislature had established two separate and distinct classifications for couples who wish to be recognized by the law, one limited to same sex couples and one limited to opposite sex couples. The trial court predicated its determination on the fact that a couple who enters into a civil union has the same legal rights under state law as a couple who enters into a marriage. The court reasoned that the difference in labels afforded marriage and civil unions is not, in itself, sufficient to trigger an analysis of the constitutionality of that statutory scheme as applied to same sex couples.
[1]
The plaintiffs challenge the trial courts conclusion that the distinction between marriage and civil unions is merely one of nomenclature. They contend that marriage is not simply a term denominating a bundle of legal rights. Rather, they contend that it is an institution of unique and enduring importance in our society, one that
Especially in light of the long and undisputed history of invidious discrimination that gay persons have suffered; 9
see part V A of this opinion; we cannot discount the plaintiffs assertion that the legislature, in establishing a statutory scheme consigning same sex couples to civil unions, has relegated them to an inferior status, in essence, declaring them to be unworthy of the institution of marriage. In other words, [b]y excluding same-sex couples from civil marriage, the [s]tate declares that it is legitimate to differentiate between their commitments and the commitments of heterosexual couples. Ultimately, the message is that what same-sex couples have is not as important or as significant as real marriage, that such lesser relationships cannot have the name of marriage.14*151Lewis v. Harris, 188 N.J. 415, 467, 908 A.2d 196 (2006) (Poritz, C.J., concurring and dissenting); see also In re Marriage Cases, 43 Cal.4th 757, 83031, 183 P.3d 384, 76 Cal.Rptr.3d 683 (2008) ([t]he current statutesby drawing a distinction between the name assigned to the family relationship available to opposite-sex couples and the name assigned to the family relationship available to same-sex couples, and by reserving the historic and highly respected designation of marriage exclusively to opposite-sex couples while offering same-sex couples only the new and unfamiliar designation of domestic partnershippose a serious risk of denying the official family relationship of same-sex couples the equal dignity and respect that is a core element of the constitutional right to marry); Opinions of the Justices to the Senate, 440 Mass. 1201, 1207, 802 N.E.2d 565 (2004) ([t]he dissimilitude between the terms civil marriage and civil union is not innocuous; it is a considered choice of language that reflects a demonstrable assigning of same-sex, largely homosexual, couples to second-class status). Although the legislature has determined that same sex couples are entitled to all the same benefits, protections and responsibilities ... [that] are granted to spouses in a marriage; General Statutes 46b38nn; the legislature nonetheless created **418 an entirely separate and distinct legal entity for same sex couples even though it readily could have made those same rights available to same sex couples by permitting them to marry. In view of the exalted status of marriage in our society, it is hardly surprising that civil unions are perceived to be inferior to marriage. We therefore agree with the plaintiffs that [m]aintaining a second-class citizen status for same-sex couples by excluding them from the institution of civil marriage is the constitutional infirmity at issue.15 (Emphasis in original.) Opinions of the Justices to the Senate, supra, at 1209, 802 N.E.2d 565. *152 Accordingly, we reject the trial courts conclusion that marriage and civil unions are separate but equal legal entities; Kerrigan v. State, supra, 49 Conn.Supp. at 664, 909 A.2d 89; and that it therefore would be the elevation of form over substance; id., at 667, 909 A.2d
89; to conclude that the constitutional rights of same sex couples are implicated by a statutory scheme that restricts them to civil unions. Although marriage and civil unions do embody the same legal rights under our law, they are by no means equal. As we have explained, the former is an institution of transcendent historical, cultural and social significance, whereas the latter most surely is not. Even though the classifications created under our statutory scheme result in a type of differential treatment that generally may be characterized as symbolic or intangible, this court correctly has stated that such treatment nevertheless is every bit as restrictive as naked exclusions; Evening Sentinel v. National Organization for Women, 168 Conn. 26, 35, 357 A.2d 498 (1975); because it is no less real than more tangible forms of discrimination, at least when, as in the present case, the statute singles out a group that *153 historically has been the object of scorn, intolerance, ridicule or worse. We do not doubt that the civil union law was designed to benefit same sex couples by providing them with legal rights that they previously did not have. If, however, the intended effect of a law is to treat politically unpopular or historically disfavored minorities differently from persons in the majority or favored class, that law cannot evade constitutional review under the separate but equal doctrine. See, e.g., Brown v. Board of Education, 347 U.S. 483, 495, 74 S.Ct. 686, 98 L.Ed. 873 (1954); **419 cf. In re Marriage Cases, supra, 43 Cal.4th at 83031, 76 Cal.Rptr.3d 683, 183 P.3d 384;Opinions of the Justices to the Senate, supra, 440 Mass. at 1209, 802 N.E.2d 565. In such circumstances, the very existence of the classification gives credence to the perception that separate treatment is warranted for the same illegitimate reasons that gave rise to the past discrimination in the first place. Despite the truly laudable effort of the legislature in equalizing the legal rights afforded same sex and opposite sex couples, there is no doubt that civil unions enjoy a lesser status in our society than marriage.16 We **420 therefore conclude that the plaintiff shave alleged *154 a constitutionally cognizable injury, that is, the denial of the right to marry a same sex partner. We next must determine whether the states differential treatment of same sex and opposite sex couples nevertheless satisfies state constitutional requirements.
*155 II
GENERAL PRINCIPLES 10
[3][4][5][6][7]
Certain general principles govern our review of the plaintiffs state constitutional claim. First, [t]he constitutionality of a statute presents a question of law over which our review is plenary.... It [also] is well established that a validly enacted statute carries with it a strong presumption of constitutionality, [and that] those who challenge its constitutionality must sustain the heavy burden of proving its unconstitutionality beyond a reasonable doubt.... The court will indulge in every presumption in favor of the statutes constitutionality.... Therefore, [w]hen a question of constitutionality is raised, courts must approach it with caution, examine it with care, and sustain the legislation unless its invalidity is clear. (Citation omitted; internal quotation marks omitted.) State v. McKenzieAdams, 281 Conn. 486, 500, 915 A.2d 822, cert. denied, 552 U.S. 888, 128 S.Ct. 248, 169 L.Ed.2d 148 (2007).
Moreover, [i]t is beyond debate that federal constitutional and statutory law establishes a minimum national standard for the exercise of individual rights and does not inhibit state governments from affording higher levels of protection for such rights. (Emphasis in original; internal quotation marks omitted.) State v. Morales, 232 Conn. 707, 716, 657 A.2d 585 (1995), quoting State v. Barton, 219 Conn. 529, 546, 594 A.2d 917 (1991). In determining that our state constitution in some instances provides greater protection than that provided by the federal constitution, we have recognized that [i]n the area of fundamental civil libertieswhich includes all protections of the declaration of rights contained in article first of the Connecticut constitutionwe *156 sit as a court of last resort, subject only to the qualification that our interpretations may not restrict the guarantees accorded the national citizenry under the federal charter. (Internal quotation marks omitted.) State v. Morales, supra, at 717, 657 A.2d 585; see also Ramos v. Vernon, 254 Conn. at 799, 827, 761 A.2d 705 (2000) (depending [on] the facts and circumstances, the state constitution may afford greater protection than the federal constitution with regard to equal protection claims). Therefore, although we may follow the analytical approach taken by courts construing the federal constitution, our use of that approach for purposes of the state constitution will not necessarily lead to the same result as that arrived at under the federal constitution. See, e.g., State v. Marsala, 216 Conn. 150, 151, 15961, 579 A.2d 58 (1990) (rejecting good faith exception to search warrant requirement for purposes of state constitution despite United States Supreme Courts adoption of that exception for purposes of federal constitution).
[8] [9]
provisions must be interpreted within the context of the times.... We must interpret the constitution in accordance with the demands of modern society or it will be in constant danger of becoming atrophied and, in fact, **421 may even lose its original meaning. ... [A] constitution is, in [former United States Supreme Court] Chief Justice John Marshalls words, intended to endure for ages to come ... and, consequently, to be adapted to the various crises of human affairs. ... [McCulloch ] v. Maryland, 17 U.S. (4 Wheat.) 316, 415, 4 L.Ed. 579 (1819).... In short, the [state] constitution was not intended to be a static document incapable of coping with changing times. It was meant to be, and is, a living document with current effectiveness. ... The Connecticut constitution is an instrument of progress, it is intended to stand for a great length of time and *157 should not be interpreted too narrowly or too literally so that it fails to have contemporary effectiveness for all of our citizens. (Citations omitted; emphasis in original.) State v. Dukes, 209 Conn. 98, 11415, 547 A.2d 10 (1988). Finally, in State v. Geisler, 222 Conn. 672, 685, 610 A.2d 1225 (1992), we set forth six factors that, to the extent applicable, are to be considered in construing the contours of our state constitution so that we may reach reasoned and principled results as to its meaning. These factors are: (1) the text of the operative constitutional provision; (2) holdings and dicta of this court and the Appellate Court; (3) persuasive and relevant federal precedent; (4) persuasive sister state decisions; (5) the history of the operative constitutional provision, including the historical constitutional setting and the debates of the framers; and (6) contemporary economic and sociological considerations, including relevant public policies. Id. Although, in Geisler, we compartmentalized the factors that should be considered in order to stress that a systematic analysis is required, we recognize that they may be inextricably interwoven.... [Moreover], not every Geisler factor is relevant in all cases. (Citation omitted.) State v. Morales, supra, 232 Conn. at 716 n. 10, 657 A.2d 585. Accordingly, our equal protection analysis is informed by any of those Geisler factors that may be relevant to that analysis.17
III
EQUAL PROTECTION ANALYSIS GENERALLY [T]he concept of equal protection [under both the state and federal constitutions] has been traditionally *158
[10][11]
Furthermore, we are mindful that state [c]onstitutional
11
viewed as requiring the uniform treatment of persons standing in the same relation to the governmental action questioned or challenged. (Internal quotation marks omitted.) State v. Matos, 240 Conn. 743, 760, 694 A.2d 775 (1997); see also Stuart v. Commissioner of Correction, 266 Conn. 596, 601, 834 A.2d 52 (2003) (constitutional right of equal protection is essentially a direction that all persons similarly situated should be treated alike [internal quotation marks omitted] ). Conversely, the equal protection clause places no restrictions on the states authority to treat dissimilar persons in a dissimilar manner.... Thus, [t]o implicate the equal protection [clause] ... it is necessary that the state statute ... in question, either on its face or in practice, treat persons standing in the same relation to it differently.... [Accordingly], the analytical predicate [of an equal protection claim] is a determination of who are the persons [purporting to be] **422 similarly situated.... The similarly situated inquiry focuses on whether the [plaintiff is] similarly situated to another group for purposes of the challenged government action.... Thus, [t]his initial inquiry is not whether persons are similarly situated for all purposes, but whether they are similarly situated for purposes of the law challenged. (Citations omitted; internal quotation marks omitted.) Stuart v. Commissioner of Correction, supra, at 601602, 834 A.2d 52; see also City Recycling, Inc. v. State, 257 Conn. 429, 448, 778 A.2d 77 (2001). This court has held, in accordance with the federal constitutional framework of analysis, that in areas of social and economic policy that neither proceed along suspect lines nor infringe fundamental constitutional rights, the [e]qual [p]rotection [c]lause is satisfied [as] long as there is a plausible policy reason for the classification, see United States Railroad Retirement [Board] v. Fritz, 449 U.S. 166, 174, 179 [101 S.Ct. 453, 66 L.Ed.2d 368] (1980), the legislative facts on which the *159 classification is apparently based rationally may have been considered to be true by the governmental decisionmaker, see Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 464 [101 S.Ct. 715, 66 L.Ed.2d 659] (1981), and the relationship of the classification to its goal is not so attenuated as to render the distinction arbitrary or irrational, see Cleburne v. Cleburne Living Center, Inc., 473 U.S. [432, 446, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) ]. ... Hammond v. Commissioner of Correction, 259 Conn. 855, 885, 792 A.2d 774 (2002); accord Luce v. United Technologies Corp., 247 Conn. 126, 144, 717 A.2d 747 (1998). If, however, state action invidiously discriminates against a suspect class or affects a fundamental right, the action passes constitutional muster ... only if it survives strict scrutiny. Daly v. DelPonte, 225 Conn. 499, 513, 624 A.2d 876 (1993). Under that
[12][13]
heightened standard, the state must demonstrate that the challenged statute is necessary to the achievement of a compelling state interest. Rayhall v. Akim Co., 263 Conn. 328, 34243, 819 A.2d 803 (2003).
[14]
Although the federal constitution does not expressly enumerate any suspect classes, the United States Supreme Court has identified three such classifications, namely, race, alienage and national origin. Cleburne v. Cleburne Living Center, Inc., supra, 473 U.S. at 440, 105 S.Ct. 3249. In contrast to the federal constitution, the state constitution identifies certain inherently suspect classifications. See, e.g., Daly v. DelPonte, supra, 225 Conn. at 51314, 624 A.2d 876. These classifications, which are set forth in article first, 20, of the Connecticut constitution, as amended by articles five and twenty-one of the amendments, include religion, race, color, ancestry, national origin, sex, physical disability and mental disability. Because the members of those classes have been deemed to be especially subject to discrimination; id., at 515, 624 A.2d 876; their rights are protected by requiring encroachments on [those] rights to pass a strict scrutiny test. Id., at 514, 624 A.2d 876.
*160 Additionally, for purposes of federal equal protection analysis, the United States Supreme Court also has developed an intermediate level of scrutiny that lies [b]etween [the] extremes of rational basis review and strict scrutiny. Clark v. Jeter, 486 U.S. 456, 461, 108 S.Ct. 1910, 100 L.Ed.2d 465 (1988). Intermediate scrutiny typically is used to review laws that employ quasi-suspect classifications ... such as gender, Craig v. Boren, 429 U.S. 190, 197, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976), or [il]legitimacy, **423Mills v. Habluetzel, 456 U.S. 91, 9899, 102 S.Ct. 1549, 71 L.Ed.2d 770 (1982). On occasion intermediate scrutiny has been applied to review of a law that affects an important, though not constitutional, right. [United States v. Coleman, 166 F.3d 428, 431 (2d Cir.), cert. denied, 526 U.S. 1138, 119 S.Ct. 1794, 143 L.Ed.2d [1021]1201 (1999) ]; cf. Plyler [v. Doe, 457 U.S. 202, 223, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982) ] (applying, without labeling it as such, an intermediate form of scrutiny to review a law that implicated right to education). Under intermediate scrutiny, the government must show that the challenged legislative enactment is substantially related to an important governmental interest.18 (Citation omitted; internal quotation marks omitted.) Ramos v. Vernon, 353 F.3d 171, 175 (2d Cir.2003).
[15]
This court also has determined that, for purposes of the state constitution, [the] two-tier analysis of the law of equal protection ... that distinguishes only between legislation requiring strict scrutiny, which typically fails 12
to pass constitutional muster, and legislation requiring a rational basis, which typically does pass, is not sufficiently precise to resolve all cases. Legislation that involves rights that may be significant, though not *161 fundamental, or classifications that are sensitive, though not suspect, may demand some form of intermediate review. Eielson v. Parker, 179 Conn. 552, 564, 427 A.2d 814 (1980); see also Daly v. DelPonte, supra, 225 Conn. at 513, 624 A.2d 876 (identifying three levels of scrutiny for equal protection purposes); cf. Contractors Supply of Waterbury, LLC v. Commissioner of Environmental Protection, 283 Conn. 86, 103, 925 A.2d 1071 (2007) (our own case law and precedent ... support the conclusion that, when [legislation] does not impact a fundamental right, a suspect class or a [quasi-suspect] class, our state constitution generally mandates [a rational basis] level of scrutiny). In Carofano v. Bridgeport, 196 Conn. 623, 495 A.2d 1011 (1985), which, like the present case, involved a claim under the equal protection provisions of the state constitution, we further explained: Courts have tended to depart from the minimal standard [when] the interests affected by the governmental restriction are sufficiently elevated in the hierarchy of social values and to devise various formulae less rigid than the compelling state interest criterion that essentially necessitate balancing private against governmental concerns with varying degrees of deference to legislative judgment.... Situations triggering ... intermediate review, other than sensitive classifications relating to stereotypes or disadvantaged minorities, have usually involved a significant interference with liberty or the denial of benefits considered to be vital to the individual. (Citations omitted.) Id., at 64142, 495 A.2d 1011. We therefore apply the same three-tiered equal protection methodology that is applied under the federal equal protection clause for purposes of our state constitution. The defendants contend that the plaintiffs equal protection claim does not satisfy two threshold equal protection principles. Specifically, the defendants contend, first, that same sex couples are not similarly situated *162 to opposite sex couples and, second, that the classes enumerated in article first, 20, of the state constitution, as amended, constitute an exclusive list of protected groups. We reject each of these claims.
[16]
from the conduct in which opposite sex couples seek to engage. We disagree. It is true, of course, that the plaintiffs differ from persons who choose to marry a person of the opposite sex insofar as each of the plaintiffs seeks to marry a person of the same sex. Otherwise, however, the plaintiffs can meet the same statutory eligibility requirements applicable to persons who seek to marry, including restrictions related to public safety, such as age; see General Statutes 46b30; and consanguinity. See General Statutes 46b21. The plaintiffs also share the same interest in a committed and loving relationship as heterosexual persons who wish to marry, and they share the same interest in having a family and raising their children in a loving and supportive environment. Indeed, the legislature itself recognized the overriding similarities between same sex and opposite sex couples when, upon passage of the civil union law, it granted same sex couples the same legal rights that married couples enjoy. We therefore agree with the California Supreme Court and conclude that the defendants contention that same sex and opposite sex couples are not similarly situated clearly lacks merit. [B]oth [same sex and opposite sex couples] consist of pairs of individuals who wish to enter into a formal, legally binding and officially recognized, long-term family relationship that affords the same rights and privileges and imposes the same obligations and responsibilities. Under these circumstances, *163 there is no question but that these two categories of individuals are sufficiently similar to bring into play equal protection principles that require a court to determine whether distinctions between the two groups justify the unequal treatment. (Internal quotation marks omitted.) In re Marriage Cases, supra, 43 Cal.4th at 831 n. 54, 76 Cal.Rptr.3d 683, 183 P.3d 384; see also Lewis v. Harris, supra, 188 N.J. at 448, 451, 908 A.2d 196 (same sex couples are similarly situated to their heterosexual counterparts); Baker v. State, 170 Vt. 194, 21819, 744 A.2d 864 (1999) (statute prohibiting marriage of same sex couples treats them differently from similarly situated opposite sex couples). In light of the multitude of characteristics that same sex and opposite sex couples have in common, we conclude that the two groups are similarly situated for purposes of the plaintiffs equal protection challenge to the state statutory scheme governing marriage.19
[17]
With respect to their first claim, the defendants assert that the plaintiffs **424 are not similarly situated to opposite sex couples, thereby obviating the need for this court to engage in an equal protection analysis, because the conduct that they seek to engage inmarrying someone of the same sexis fundamentally different
*164 The defendants also assert that, because article first, **425 20, of the state constitution, as amended by articles five and twenty-one of the amendments, expressly prohibits discrimination against eight enumerated classes, no other group is entitled to any form of heightened protection under our state constitutional equal protection provisions. We also reject this assertion, first, because it is inconsistent with previous cases of this court in which we 13
have expressed our approval of the three-tiered methodology for purposes of the equal protection provisions of the state constitution. See, e.g., Carofano v. Bridgeport, supra, 196 Conn. at 64142, 495 A.2d 1011;Keogh v. Bridgeport, 187 Conn. 53, 6667,444 A.2d 225 (1982); Eielson v. Parker, supra, 179 Conn. at 56364, 427 A.2d 814. Indeed, we previously have observed that, although the framers failure expressly to include a particular group within the ambit of article first, 20, as amended, is a relevant consideration in determining whether that group is entitled to special protection, it is not dispositive of the issue. See Moore v. Ganim, 233 Conn. 557, 597, 660 A.2d 742 (1995). Furthermore, the history surrounding the adoption of article first, 20, of the state constitution indicates that its drafters intended that provision to embody the very strongest human rights principle that this convention can put forth to the people of Connecticut; 2 Proceedings of the Connecticut Constitutional Convention (1965) p. 692, remarks of Representative James J. Kennelly; and, in accordance with that purpose, that the provision should be read expansively. See id., at p. 691, remarks of former United States Representative Chase Going Woodhouse ([w]e all realize that rights of individuals in this country have developed and have changed from time to time, and we certainly would not want to have in our [c]onstitution any language that *165 would in the future perhaps limit new rights). Finally, even if we were to assume, arguendo, that the groups enumerated in article first, 20, as amended, were intended to constitute an exhaustive list of suspect classes, the plaintiffs are not barred from recognition as a quasi-suspect classthe claim that we resolve in their favorbecause the two classes are separate and distinct from one another. Indeed, under the defendants view, heightened protection would be available only to those classes that had marshaled the political will and popular support to secure a constitutional amendment in their favor, a result inconsistent with the rationale underlying the state constitutional equal protection provisions. We conclude, therefore, that the plaintiffs equal protection claim is not foreclosed merely because sexual orientation is not an enumerated classification in article first, 20, as amended.
IV
Although this court has indicated that a group may be entitled to heightened protection **426 under the state constitution because of its status as a quasi-suspect class, we previously have not articulated the specific criteria to be considered in determining whether recognition as a quasi-suspect class is warranted. The United States Supreme Court, however, consistently has identified two factors that must be met, for purposes of the federal constitution, if a group is to be accorded such status. These two required factors are: (1) the group has suffered a history of invidious discrimination; see United States v. Virginia, 518 U.S. 515, 53132, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996); Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 313, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976); and (2) the characteristics that distinguish the groups members bear no relation *166 to [their] ability to perform or contribute to society. Frontiero v. Richardson, 411 U.S. 677, 686, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973) (plurality opinion); accord Cleburne v. Cleburne Living Center, Inc., supra, 473 U.S. at 441, 105 S.Ct. 3249; see also Massachusetts Board of Retirement v. Murgia, supra, at 313, 96 S.Ct. 2562 (heightened scrutiny required when group has been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of [the] abilities [of the groups members]). The United States Supreme Court also has cited two other considerations that, in a given case, may be relevant in determining whether statutory provisions pertaining to a particular group are subject to heightened scrutiny. These two additional considerations are: (1) the characteristic that defines the members of the class as a discrete group is immutable or otherwise not within their control; see, e.g., Lyng v. Castillo, 477 U.S. 635, 638, 106 S.Ct. 2727, 91 L.Ed.2d 527 (1986) (for purposes of suspectness inquiry, relevant consideration is whether members of class exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group); and (2) the group is a minority or politically powerless. (Internal quotation marks omitted.) Bowen v. Gilliard, 483 U.S. 587, 602, 107 S.Ct. 3008, 97 L.Ed.2d 485 (1987); accord Lyng v. Castillo, supra, at 638, 106 S.Ct. 2727; see also San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 28, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973) (concluding that class comprised of poor families exhibits none of traditional indicia of suspectness because class is not saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process). To date, the United States Supreme Court has recognized two quasi-suspect classes, namely, sex; see, e.g., 14
QUASISUSPECT CLASSIFICATIONS UNDER THE STATE CONSTITUTION
*167Frontiero v. Richardson, supra, 411 U.S. at 686, 93 S.Ct. 1764 (plurality opinion) (what differentiates sex from such nonsuspect statuses as intelligence or physical disability ... is that the sex characteristic frequently bears no relation to ability to perform or contribute to society); and illegitimacy. See, e.g., Mathews v. Lucas, 427 U.S. 495, 505506, 96 S.Ct. 2755, 49 L.Ed.2d 651(1976) (applying heightened scrutiny because, inter alia, illegitimacy bears no relation to the individuals ability to participate in and contribute to society). The court, however, has rejected claims that the aged and the mentally disadvantaged are quasi-suspect classes, principally because the defining characteristic of each group does in fact bear a substantial relationship to the groups ability to participate in and contribute to society. See Cleburne v. Cleburne Living Center, Inc., supra, 473 U.S. at 442, 105 S.Ct. 3249 (mentally disadvantaged are not suspect class because, inter alia, those who are mentally retarded have a reduced ability **427 to cope with and function in the everyday world); Massachusetts Board of Retirement v. Murgia, supra, 427 U.S. at 31415, 96 S.Ct. 2562 (upholding law requiring mandatory retirement of uniformed police officers at age fifty [s]ince physical ability generally declines with age [and] mandatory retirement at [fifty] serves to remove from police service those whose fitness for uniformed work presumptively has diminished with age). Because of the evident correlation between the indicia of suspectness identified by the United States Supreme Court and the issue of whether a class that has been singled out by the state for unequal treatment is entitled to heightened protection under the federal constitution, we conclude that those factors also are pertinent to the determination of whether a group comprises a quasi-suspect class for purposes of the state constitution. It bears emphasis, however, that the United States Supreme Court has placed far greater weightindeed, it invariably has placed dispositive *168 weighton the first two factors, that is, whether the group has been the subject of long-standing and invidious discrimination and whether the groups distinguishing characteristic bears no relation to the ability of the group members to perform or function in society. In circumstances in which a group has been subject to such discrimination and its distinguishing characteristic does not bear any relation to such ability, the court inevitably has employed heightened scrutiny in reviewing statutory classifications targeting those groups. Thus, in Cleburne v. Cleburne Living Center, Inc., supra, 473 U.S. at 440, 105 S.Ct. 3249, the court explained that statutory classifications based on race, alienage and national origin are reviewed with great skepticism because such statutes are likely to be motivated by prejudice and antipathy rather than by any legitimate
differences between members of those suspect groups and all other persons. The court in Cleburne expressed the same rationale in explaining why classifications based on gender are subject to a heightened standard of review: [W]hat differentiates sex from such nonsuspect statuses as intelligence or physical disability ... is that the sex characteristic frequently bears no relation to ability to perform or contribute to society.... Rather than resting on meaningful considerations, statutes distributing benefits and burdens between the sexes in different ways very likely reflect outmoded notions of the relative capabilities or men and women. (Citation omitted; internal quotation marks omitted.) Id., at 44041, 105 S.Ct. 3249. In contrast, with respect to the elderly and mentally disadvantaged, the court explained that [when] individuals in the group affected by a law have distinguishing characteristics relevant to interests the [s]tate has the authority to implement, the courts have been very reluctant, as they should be in our federal system, to closely scrutinize legislative choices as to whether, how, and to what extent those interests should be pursued. *169 In such cases, the [e]qual [p]rotection [c]lause requires only a rational means to serve a legitimate end. Id., at 44142, 105 S.Ct. 3249. It is evident, moreover, that immutability and minority status or political powerlessness are subsidiary to the first two primary factors because, as we explain more fully hereinafter, the United States Supreme Court has granted suspect class status to a group whose distinguishing characteristic is not immutable;20 see Nyquist *170 v. Mauclet, 432 U.S. 1, 9 n. 11, 97 S.Ct. 2120, 53 L.Ed.2d 63 (1977) (rejecting **428 immutability requirement in treating group of resident aliens as suspect class despite their ability to opt out of class voluntarily); and has accorded quasi-suspect status to a group that had not been a minority or truly politically powerless.21 See *171**429Frontiero v. Richardson, supra, 411 U.S. at 686 n. 17, 93 S.Ct. 1764 (plurality opinion) (according women heightened protection despite courts acknowledgment that women do not constitute a small and powerless minority). We do not doubt, moreover, that the court has accorded little weight to a groups political power because that factor, in contrast to the other criteria, frequently is not readily discernible by reference to objective standards. Thus, an attempt to quantify a groups political influence often will involve a myriad of complex and interrelated considerations of a kind not readily susceptible to judicial fact-finding. Nevertheless, because the court has identified the immutability of the groups distinguishing characteristic and the groups minority status or relative lack of political power as potentially relevant factors to the determination of whether heightened judicial protection is appropriate, we,
[18]
15
too, shall consider those factors for purposes of our inquiry under the state constitution.22
[19]
*172 Finally, we note that courts generally have applied the same criteria to **430 determine whether a classification is suspect, quasi-suspect or neither. See, e.g., Cleburne v. Cleburne Living Center, Inc., supra, 473 U.S. at 44042, 105 S.Ct. 3249 (applying factors in concluding that mentally disadvantaged persons do not constitute suspect or quasi-suspect class); Massachusetts Board of Retirement v. Murgia, supra, 427 U.S. at 31314, 96 S.Ct. 2562 (applying factors in concluding that age is not suspect classification). Just as there is no uniformly applied formula for determining whether a group is entitled to heightened protection under the constitution, there also is no clear test for determining whether a group that deserves such protection is entitled to designation as a suspect class or as a quasi-suspect class.23 Nevertheless, we agree with the *173 New Mexico Supreme Court that, although the definition of a suspect class for the purposes of justifying strict scrutiny is instructive for a determination of whether a group of people qualifies as a [quasi-suspect] class justifying intermediate scrutiny, it is too exacting.Breen v. Carlsbad Municipal Schools, 138 N.M. 331, 337, 120 P.3d 413 (2005) (holding that mentally disadvantaged persons constitute quasi-suspect class under equal protection clause of New Mexico constitution). Indeed, it stands to reason that the level of protection needed from the majoritarian political process does not have to be as extraordinary as necessary for strict scrutiny because the level of scrutiny is less in intermediate scrutiny. Id., at 338, 120 P.3d 413. In other words, although the same factors are relevant for the purpose of identifying both suspect and quasi-suspect classes, we apply those factors less stringently with respect to groups claiming quasi-suspect class status because the intermediate scrutiny applicable to a statutory classification that discriminates on the basis of quasi-suspect status is less rigorous or demanding than the strict scrutiny to which laws burdening a suspect class are subject. With these principles in mind, we consider the plaintiffs contention **431 that they are entitled to recognition as a quasi-suspect class.24
For the reasons that follow, we agree with the plaintiffs claim that sexual **432 orientation meets all of the *175 requirements of a quasi-suspect classification. Gay persons have been subjected to and stigmatized by a long history of purposeful and invidious discrimination that continues to manifest itself in society. The characteristic that defines the members of this groupattraction to persons of the same sexbears no logical relationship to their ability to perform in society, either in familial relations or otherwise as productive citizens. Because sexual orientation is such an essential component of personhood, even if there is some possibility that a persons sexual preference can be altered, it would be wholly unacceptable for the state to require anyone to do so. Gay persons also represent a distinct minority of the population. It is true, of course, that gay persons recently have made significant advances in obtaining equal treatment under the law. Nonetheless, we conclude 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.
[20][21]
History of Discrimination The defendants do not dispute that gay persons historically have been, and continue to be, the target of *176 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.25 ... Gay and *177 lesbian **433 adolescents are often taunted and humiliated in their 16
*174 V
STATUS OF GAY PERSONS AS A QUASISUSPECT CLASS
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, 16364, 104 P.3d 445 (2004) (Nelson, J., concurring); see also In re Marriage Cases, supra, 43 Cal.4th at 841, 76 Cal.Rptr.3d 683, 183 P.3d 384 ([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 Generals 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.26 *178 Of course, gay persons have been subjected to such severe and sustained discrimination because of our cultures 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, at 571, 123 S.Ct. 2472 Until not long ago, gay persons were widely regarded as deviants in need of treatment to deal with their sexual orientation.27 See, e.g., **434Conaway v. Deane, 401 Md. 219, 28384, 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, at 578, 123 S.Ct. 2472; such conduct carried criminal penalties in over one *179 quarter of the states. See id., at 573, 123 S.Ct. 2472; see also Bowers v. Hardwick, supra, at 193, 106 S.Ct. 2841 (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] 53216); 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, at 190, 106 S.Ct. 2841. 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 ClassBased 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.
Whether Sexual Orientation Is Related to a Persons Ability to Participate in or Contribute to Society The defendants also concede that sexual orientation bears no relation to a persons ability to participate in or contribute to society, a fact that many courts have acknowledged, as well. See, e.g., Watkins v. United States Army, 875 F.2d 699, 725 (9th Cir.1989) (Norris, J., concurring in the judgment) ([s]exual orientation plainly has no relevance to a persons ability to perform or contribute to society [internal quotation marks omitted] ), cert. denied, *180498 U.S. 957, 111 S.Ct. 384, 112 L.Ed.2d 395 (1990); Equality Foundation of Greater Cincinnati, Inc. v. Cincinnati, 860 F.Supp. 417, 437 (S.D.Ohio 1994) ([S]exual orientation ... bears no relation whatsoever to an individuals ability to perform, or to participate in, or contribute to, society.... If homosexuals were afflicted with some sort of impediment to their ability to perform and to contribute to society, the 17
entire phenomenon of staying in the [c]loset and of coming out would not exist; their impediment would betray their status.), revd on other grounds, 54 F.3d 261 (6th Cir.1995), vacated and remanded, 518 U.S. 1001, 116 S.Ct. 2519, 135 L.Ed.2d 1044 (1996); Conaway v. Deane, supra, 401 Md. at 282, 932 A.2d 571 (gay persons have been subject to unique disabilities unrelated to their ability to contribute to society); Hernandez v. Robles, 7 N.Y.3d 338, 388, 855 N.E.2d 1, 821 N.Y.S.2d 770 (2006) (Kaye, C.J., dissenting) ([o]bviously, sexual orientation is irrelevant to ones **435 ability to perform or contribute). In this critical respect, gay persons stand in stark contrast to other groups that have been denied suspect or quasi-suspect class recognition, despite a history of discrimination, because the distinguishing characteristics of those groups adversely affect their ability or capacity to perform certain functions or to discharge certain responsibilities in society. See, e.g., Cleburne v. Cleburne Living Center, Inc., supra, 473 U.S. at 442, 105 S.Ct. 3249 (for purposes of federal constitution, mental retardation is not quasi-suspect classification because, inter alia, it is undeniable ... that those who are mentally retarded have a reduced ability to cope with and function in the everyday world); Massachusetts Board of Retirement v. Murgia, supra, 427 U.S. at 315, 96 S.Ct. 2562 (age is not suspect classification because, inter alia, physical ability generally declines with age); see also Gregory v. Ashcroft, 501 U.S. 452, 472, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991) ([i]t is an unfortunate fact of life that physical [capacity] and mental capacity sometimes diminish with age). *181 Unlike the characteristics unique to those groups, however, homosexuality bears no relation at all to [an] individuals ability to contribute fully to society. L. Tribe, American Constitutional Law (2d Ed. 1988) 1633, p. 1616. Indeed, because an individuals homosexual orientation implies no impairment in judgment, stability, reliability or general social or vocational capabilities; (internal quotation marks omitted) Jantz v. Muci, 759 F.Supp. 1543, 1548 (D.Kan.1991) (quoting 1985 Resolution of the American Psychological Association), revd on other grounds, 976 F.2d 623 (10th Cir.1992), cert. denied, 508 U.S. 952, 113 S.Ct. 2445, 124 L.Ed.2d 662 (1993); the observation of the United States Supreme Court that race, alienage and national originall suspect classes entitled to the highest level of constitutional protectionare so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy; Cleburne v. Cleburne Living Center, Inc., supra, 473 U.S. at 440, 105 S.Ct. 3249; is no less applicable to gay persons.
It is highly significant, moreover, that it is the public policy of this state that sexual orientation bears no relation to an individuals ability to raise children; see, e.g., General Statutes 45a727 (permitting same sex couples to adopt children); see also General Statutes 45a727a (3) (finding of General Assembly that best interests of child are promoted whenever child is part of loving, supportive and stable family without reference to sexual preference of parents); to an individuals capacity to enter into relationships analogous to marriage; see General Statutes 46b38aa through 46b38pp (granting same sex couples all rights and privileges afforded to opposite sex couples who enter into marriage); and to an individuals ability otherwise to participate fully in every important economic and social institution and activity that the government regulates. *182 See General Statutes 46a81a through 46a81n (generally banning sexual orientation discrimination in employment, trade and professional association membership, public accommodations, housing, credit practices, state hiring practices, state licensing practices and in administration of state educational and vocational programs as well as state-administered benefits programs). These statutory provisions constitute an acknowledgment by the state that homosexual orientation is no more relevant to a persons ability to perform and contribute to society than is heterosexual orientation. It therefore is clear that the plaintiffs have satisfied this second and final required prong for determining **436 whether a group is entitled to recognition as a quasi-suspect or suspect class.
Immutability of the Groups Distinguishing Characteristic A third factor that courts have considered in determining whether the members of a class are entitled to heightened protection for equal protection purposes is whether the attribute or characteristic that distinguishes them is immutable or otherwise beyond their control. See, e.g., Bowen v. Gilliard, supra, 483 U.S. at 602, 107 S.Ct. 3008. Of course, the characteristic that distinguishes gay persons from others and qualifies them for recognition as a distinct and discrete group is the characteristic that historically has resulted in their social and legal ostracism, namely, their attraction to persons of the same sex.
18
On a number of occasions, in connection with its consideration of a claim that a particular group is entitled to suspect or quasi-suspect class status, the United States Supreme Court has considered whether the groups distinguishing characteristic is immutable. See, e.g., Mathews v. Lucas, supra, 427 U.S. at 505, 96 S.Ct. 2755 (illegitimacy *183 is a characteristic determined by causes not within the control of the illegitimate individual); Frontiero v. Richardson, supra, 411 U.S. at 686, 93 S.Ct. 1764 (plurality opinion) (since sex, like race and national origin, is an immutable characteristic determined solely by the accident of birth, the imposition of special disabilities [on] the members of a particular sex because of their sex would seem to violate the basic concept of our system that legal burdens should bear some relationship to individual responsibility [internal quotation marks omitted] ); cf. Parham v. Hughes, 441 U.S. 347, 351, 99 S.Ct. 1742, 60 L.Ed.2d 269 (1979) (statute prohibiting father, who has failed to legitimate his illegitimate child, from suing for childs wrongful death does not create inherently suspect class based [on] certain ... immutable human attributes); Johnson v. Robison, 415 U.S. 361, 375 n. 14, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974) (conscientious objectors do not constitute suspect class because, inter alia, they lack traditional indicia of suspect class, including immutable characteristic). Immutability has been deemed to be a relevant consideration because it make[s] discrimination more clearly unfair. High Tech Gays v. Defense Industrial Security Clearance Office, supra, 909 F.2d at 377 (Canby, J., dissenting). Immutability may be considered important because it would be pointless to try to deter membership in the immutable group, or because individual group members cannot be blamed for their status, or because immutability heightens the sense of stigma associated with membership.... Note, supra, 98 Harv. L.Rev. at 13021303. Put differently, [t]he degree to which an individual controls, or cannot avoid, the acquisition of a defining trait, and the relative ease or difficulty with which a trait can be changed, are relevant to whether a classification is suspect or quasi-suspect because this inquiry is one way of asking whether someone, rather than being victimized, has voluntarily joined a *184 persecuted group and thereby invited the discrimination. Dean v. District of Columbia, 653 A.2d 307, 346 (D.C.1995) (Ferren, J., concurring in part and dissenting in part). A number of courts that have considered this factor have rejected the claim that sexual orientation is an immutable characteristic.28 Other courts, however, as well **437 as many, if not most, scholarly commentators, have reached a contrary conclusion.29 Although we do not *185 doubt that sexual orientationheterosexual or homosexualis
highly resistant to change, it is not necessary for us to decide whether sexual orientation is immutable in the same way and to the same extent that race, national origin and gender are immutable, because, even if it is not, the plaintiffs nonetheless have established that they fully satisfy this consideration. Sexual intimacy is a sensitive, key relationship of human existence, central to ... the development of human personality.... **438Paris Adult Theatre I v. Slaton, 413 U.S. 49, 63, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973). Thus, the United States Supreme Court has recognized that, because the protected right of homosexual adults to engage in intimate, consensual conduct ... [represents] an integral part of human freedom; Lawrence v. Texas, supra, 539 U.S. at 57677, 123 S.Ct. 2472; individual decisions by consenting adults concerning the intimacies of their physical relationships are entitled to constitutional protection. See id., at 578, 123 S.Ct. 2472. Indeed, it is indisputable that sexual orientation forms a significant part of a persons identity. *186Able v. United States, 968 F.Supp. 850, 863 (E.D.N.Y.1997), revd on other grounds, 155 F.3d 628 (2d Cir.1998); see also L. Tribe, supra, 1633, at p. 1616 (sexual orientation, whether homosexual or heterosexual, is central to personality of individual). It is equally apparent that, [b]ecause a persons sexual orientation is so integral an aspect of ones identity, it is not appropriate to require a person to repudiate or change his or her sexual orientation in order to avoid discriminatory treatment. In re Marriage Cases, supra, 43 Cal.4th at 842, 76 Cal.Rptr.3d 683, 183 P.3d 384; see also HernandezMontiel v. Immigration & Naturalization Service, 225 F.3d 1084, 1093 (9th Cir.2000) ( [s]exual orientation and sexual identity ... are so fundamental to ones identity that a person should not be required to abandon them); Watkins v. United States Army, supra, 875 F.2d at 726 (Norris, J., concurring in the judgment) (Scientific proof aside, it [also] seems appropriate to ask whether heterosexuals feel capable of changing their sexual orientation. Would heterosexuals living in a city that passed an ordinance burdening those who engaged in or desired to engage in sex with persons of the opposite sex find it easy not only to abstain from heterosexual activity but also to shift the object of their sexual desires to persons of the same sex? ... [T]he possibility of such a difficult and traumatic change does not make sexual orientation mutable for equal protection purposes. [Citations omitted; emphasis in original.] ); Jantz v. Muci, supra, 759 F.Supp. at 1548 (to discriminate against individuals who accept their given sexual orientation and refuse to alter that orientation to conform to societal norms does significant violence to a central and defining character of those individuals).
19
In view of the central role that sexual orientation plays in a persons fundamental right to self-determination, we fully agree with the plaintiffs that their sexual orientation represents the kind of distinguishing characteristic *187 that defines them as a discrete group for purposes of determining whether that group should be afforded heightened protection under the equal protection provisions of the state constitution. This prong of the suspectness inquiry surely is satisfied when, as in the present case, the identifying trait is so central to a persons identity that it would be abhorrent for government to penalize a person for refusing to change [it].... Watkins v. United States Army, supra, 875 F.2d at 726 (Norris, J., concurring in the judgment); see also Andersen v. King County, 158 Wash.2d 1, 105 n. 78, 138 P.3d 963 (2006) (Bridge, J., concurring in the dissent) (Courts ... should not conclude that homosexuality is mutable [for purposes of determining whether gay persons are entitled to suspect or quasi-suspect class status] because reasonable minds disagree about the causes of homosexuality or because some religious tenets forbid gay persons from acting on homosexual behavior. Instead, courts should ask whether the characteristic at issue is one governments have any business requiring a person to change. [Emphasis in original.] ). In other words, gay persons, because they are characterized by a central, **439 defining [trait] of personhood, which may be altered [if at all] only at the expense of significant damage to the individuals sense of self; Jantz v. Muci, supra, 759 F.Supp. at 1548; are no less entitled to consideration as a suspect or quasi-suspect class than any other group that has been deemed to exhibit an immutable characteristic. See id.; see also note, supra, 98 Harv. L.Rev. at 1303 (sexual orientation, like race and sex, is one of only a handful of characteristics that ha[s] such a pervasive and profound impact on the [relevant] aspects of personhood). To decide otherwise would be to penalize someone for being unable or unwilling to change ... a central aspect of individual and group identity; Watkins v. United States Army, supra, at 726 (Norris, J., concurring in the judgment); a *188 result repugnant to the values animating the constitutional ideal of equal protection of the laws. Id.
group is a minority or politically powerless. (Internal quotation marks omitted.) Bowen v. Gilliard, supra, 483 U.S. at 602, 107 S.Ct. 3008. We therefore turn to that prong of the test.
1 We commence our analysis by noting that, in previous cases involving groups seeking heightened protection under the federal equal protection clause, the United States Supreme Court described this factor without reference to the minority status of the subject group, focusing instead on the groups lack of political power. See, e.g., Massachusetts Board of Retirement v. Murgia, supra, 427 U.S. at 313, 96 S.Ct. 2562 (explaining that a suspect class is one saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process [internal quotation marks omitted] ); San Antonio Independent School District v. Rodriguez, supra, 411 U.S. at 28, 93 S.Ct. 1278 (same). In its most recent formulation of the test for determining whether a group is entitled to suspect or quasi-suspect classification, however, the court has indicated that this factor is satisfied upon a showing either that the group is a minority or that it lacks political power. Bowen v. Gilliard, supra, 483 U.S. at 602, 107 S.Ct. 3008;Lyng v. Castillo, supra, 477 U.S. at 638, 106 S.Ct. 2727. Indeed, in characterizing this factor in disjunctive terms, the court cited to Murgia;Bowen v. Gilliard, supra, at 60203, 107 S.Ct. 3008;Lyng v. Castillo, supra, at 638, 106 S.Ct. 2727; thereby also indicating that, for purposes of this aspect of the inquiry, the test always has involved a determination of whether the *189 group is a discrete and insular minority; United States v. Carolene Products Co., 304 U.S. 144, 15253 n. 4, 58 S.Ct. 778, 82 L.Ed. 1234 (1938); or, if not a true minority; see, e.g., Frontiero v. Richardson, supra, 411 U.S. at 686 n. 17, 688, 93 S.Ct. 1764 (plurality opinion) (women accorded protected status although not minority); the group nonetheless is lacking in political power. This disjunctive test properly recognizes that a group may warrant heightened protection even though it does not fit the archetype of a discrete and insular minority. The test also properly recognizes that legislation singling out a true minority that meets the first three prongs of the suspectness inquiry must be viewed with skepticism because, under such circumstances, there exists an undue risk that legislation involving the historically disfavored group has been motivated **440 by improper considerations borne of prejudice or animosity. 20
Whether the Group Is a Minority or Lacking in Political Power The final factor that bears consideration is whether the
When this approach is applied to the present case, there is no doubt that gay persons clearly comprise a distinct minority of the population.30 Consequently, they *190 clearly satisfy the first part of the disjunctive test and, thus, may be deemed to satisfy this prong of the suspectness inquiry on that basis alone.
2
[22]
The defendants nevertheless maintain that gay persons should not receive recognition as a quasi-suspect group because they are not politically powerless. In light of this claim, which represents the defendants primary challenge to the plaintiffs contention that they are entitled to quasi-suspect class status, and because some courts have applied that component of the suspectness inquiry to deny gay persons protected status even though they represent a minority of the population, we consider the defendants contention. In support of their claim, the defendants rely primarily on this states enactment of the gay rights and civil union laws, which, of course, were designed to provide equal rights for gay persons, and which undoubtedly reflect a measure of political power. The defendants also rely on the fact that several state legislators in Connecticut are openly gay. From the defendants standpoint, these significant advances undermine the plaintiffs claim that gay persons are so lacking in political power that they are entitled to heightened judicial protection. The plaintiffs contend that this test does not require proof that gay persons are wholly lacking in political influence but, rather, that the discrimination to which they have been subjected has been so severe and so persistent that, as with race and sex discrimination, it is not likely to be remedied soon enough merely by resort to the majoritarian political process. In support of their assertion that they do not wield sufficient political power to obviate the need for heightened judicial protection, the plaintiffs note that gay persons are demonstrably less powerful than AfricanAmericans and *191 women, two groups that have been accorded protected status under the federal constitution. As the plaintiffs also emphasize, courts continue to apply heightened scrutiny to statutes that discriminate against women and racial minorities notwithstanding the great strides that both groups have made and continue to make in recent years in terms of their **441 political strength. Indeed, heightened scrutiny is applied to statutes that discriminate against men; see Craig v. Boren, supra, 429 U.S. at 197, 204, 97 S.Ct. 451;
and against Caucasians. See, e.g., Richmond v. J.A. Croson Co., 488 U.S. 469, 49396, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989). Finally, the plaintiffs contend that when AfricanAmericans and women first were recognized as suspect and quasi-suspect classes, respectively, comprehensive legislation barring discrimination against those groups had been in effect for years, and yet the existence of that legislation did not deter the United States Supreme Court from according them protected status. The plaintiffs argue, therefore, that similar legislation protecting gay persons cannot disqualify that group from recognition as a quasi-suspect class. We agree. We commence our analysis by considering what the term political powerlessness actually means for purposes of the suspectness inquiry. Unfortunately, in most cases the [United States] Supreme Court has no more than made passing reference to the political power factor without actually analyzing it. See., e.g., Bowen v. Gilliard, [supra, 483 U.S. at 602, 107 S.Ct. 3008];Massachusetts Board of Retirement v. Murgia, [supra, 427 U.S. at 313, 96 S.Ct. 2562];San Antonio Independent School District v. Rodriguez, [supra, 411 U.S. at 28, 93 S.Ct. 1278]. Equality Foundation of Greater Cincinnati, Inc. v. Cincinnati, supra, 860 F.Supp. at 43738 n. 17. In view of this fact, and because the extent to which a group possesses or lacks political power is neither readily discernible nor easily measurable, this facet of the suspectness inquiry aptly has been characterized *192 as ill-defined.... Id., at 437 n. 17. Our task is further complicated by the fact that, to our knowledge, no other court has undertaken a thorough analysis of this factor. The defendants are correct, of course, that gay persons are not entirely without political power, both because the legislature has been persuaded of the need for laws prohibiting sexual orientation discrimination and because some gay persons serve openly in public office. We agree with the plaintiffs, however, that they need not demonstrate that gay persons are politically powerless in any literal sense of that term in order to satisfy this component of the suspectness inquiry. This conclusion is compelled by United States Supreme Court jurisprudence. We commence our review of that jurisprudence with Frontiero v. Richardson, supra, 411 U.S. at 677, 93 S.Ct. 1764 (plurality opinion), in which the court considered an equal protection challenge to a statutory scheme that treated female spouses of servicemen differently from the male spouses of servicewomen. See id., at 678, 93 S.Ct. 1764. After acknowledging this nations long and unfortunate history of sex discrimination; id., at 684, 93 S.Ct. 1764; the court underscored the gross, stereotyped distinctions 21
between the sexes that had been statutorily sanctioned for many years. Id., at 685, 93 S.Ct. 1764. The court further observed that sex, like race and national origin, is an immutable characteristic that frequently bears no relation to ability to perform or contribute to society. Id., at 686, 93 S.Ct. 1764. In reliance on these considerations, the court concluded that classifications based on sex, like classifications based on race, alienage or national origin, are inherently suspect, and therefore must be subject to heightened judicial review.31Id., at 688, 93 S.Ct. 1764. **442*193 In reaching its conclusion, the court observed, first, that the position of women in America has improved markedly in recent decades. Id., at 685, 93 S.Ct. 1764. Despite this improvement, however, the court also explained that women still face[d] pervasive, although at times more subtle, discrimination in our educational institutions, in the job market and, perhaps most conspicuously, in the political arena. Id., at 686, 93 S.Ct. 1764. The court nevertheless recognized the significant political advances that had been made toward gender equality, observing that Congress ha[d] ... manifested an increasing sensitivity to sex-based classifications. In [Title] VII of the Civil Rights Act of 1964, for example, Congress expressly declared that no employer, labor union, or other organization subject to the provisions of the [a]ct shall discriminate against any individual on the basis of race, color, religion, sex, or national origin. Similarly, the Equal Pay Act of 1963 provides that no employer covered by the [a]ct shall discriminate ... between employees on the basis of sex. And 1 of the [e]qual [r]ights [a]mendment, passed by Congress on March 22, 1972, and submitted to the legislatures of the [s]tates for ratification, declares that [e]quality of rights under the law shall not be denied or abridged by the United States or by any [s]tate on account of sex. (Internal quotation marks omitted.) Id., at 687, 93 S.Ct. 1764. In light of these significant protections, the court also acknowledged that, when viewed in the abstract, women do not constitute a small and powerless minority. (Emphasis added.) Id., at 686 n. 17, 93 S.Ct. 1764. The court further observed, however, that, in large part because of past *194 discrimination, women were vastly under-represented in this [n]ations decisionmaking councils.32Id. Thus, after explaining that women reasonably could not be characterized as politically powerless in the literal sense of that term, the court nevertheless concluded that women are entitled to enhanced judicial protection because the discrimination to which they had been subjected was irrational and unlikely
to be eliminated solely by the enactment of remedial legislation. In other words, as the court since has explained, heightened scrutiny of certain classifications, including gender, is warranted because those classifications are so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy ... and because such discrimination is unlikely to be soon rectified by legislative means .... (Emphasis added.) Cleburne v. Cleburne Living Center, Inc., supra, 473 U.S. at 440, 105 S.Ct. 3249. **443 Women have continued to make significant political progress in the years following the courts decision in Frontiero.33 Indeed, because females outnumber males *195 in this country,34 they do not constitute a minority, let alone a relatively powerless one. Nevertheless, the United States Supreme Court repeatedly has applied heightened scrutiny to statutory classifications based on sex and continues to do so. See, e.g., Nevada Dept. of Human Resources v. Hibbs, 538 U.S. 721, 728, 123 S.Ct. 1972, 155 L.Ed.2d 953 (2003); Nguyen v. Immigration & Naturalization Service, 533 U.S. 53, 60, 121 S.Ct. 2053, 150 L.Ed.2d 115 (2001); United States v. Virginia, supra, 518 U.S. at 533, 116 S.Ct. 2264;Heckler v. Mathews, 465 U.S. 728, 744, 104 S.Ct. 1387, 79 L.Ed.2d 646 (1984); Caban v. Mohammed, 441 U.S. 380, 388, 99 S.Ct. 1760, 60 L.Ed.2d 297 (1979); Califano v. Goldfarb, 430 U.S. 199, 21011, 97 S.Ct. 1021, 51 L.Ed.2d 270 (1977). Moreover, despite significant political gains by racial and ethnic minorities since they first were accorded treatment as a suspect class, both in terms of the enactment of antidiscrimination laws and electoral success,35 courts also continue to apply strict scrutiny to statutes that draw distinctions on the basis of such classifications. See, e.g., *196Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701, 127 S.Ct. 2738, 275152, 168 L.Ed.2d 508 (2007);; see also Cleburne v. Cleburne Living Center, Inc., supra, 473 U.S. at 467, 105 S.Ct. 3249 (Marshall, J., concurring in the judgment in part and dissenting in part) ([t]he [United States Supreme] Court ... has never suggested that race-based classifications became any less suspect once extensive legislation had been enacted on the subject); D. Richards, Women, Gays and the Constitution: The Grounds for Feminism and Gay Rights in Culture and Law (University of Chicago Press 1998) c. 5, p. 268 n. 248 ([r]acial classifications ... remain as suspect as they have ever been irrespective of the political advances of African Americans); D. Richards, supra, at p. 268 (no sound reason exists to suggest that the gains in political solidarity of groups subjected **444 to deep racial or sexist or religious prejudice ... disentitle them to constitutional protection). 22
It is apparent, then, that the political powerlessness aspect of the suspectness inquiry does not require a showing that the group seeking recognition as a protected class is, in fact, without political power. As we have explained, women were not politically powerless in an absolute sense when they first were accorded heightened constitutional protection in the early 1970s; indeed, prior to the recognition of women as a quasi-suspect class, gender discrimination had been prohibited statutorilymuch like discrimination on the basis of sexual orientation has been barred by statute in this stateand Congress had adopted a joint resolution that caused the proposed equal rights amendment to the United States constitution to be presented to the states for ratification. Today, women, like AfricanAmericans, continue to receive heightened protection under the equal protection clause even though they are a potent and growing political force. The term political powerlessness, therefore, is clearly a misnomer. We apply this facet of the suspectness inquiry not to ascertain *197 whether a group that has suffered invidious discrimination borne of prejudice or bigotry is devoid of political power but, rather, for the purpose of determining whether the group lacks sufficient political strength to bring a prompt end to the prejudice and discrimination through traditional political means. Consequently, a group satisfies the political powerlessness factor if it demonstrates that, because of the pervasive and sustained nature of the discrimination that its members have suffered, there is a risk that that discrimination will not be rectified, sooner rather than later, merely by resort to the democratic process. See Cleburne v. Cleburne Living Center, Inc., supra, 473 U.S. at 440, 105 S.Ct. 3249. Applying this standard, we have little difficulty in concluding that gay persons are entitled to heightened constitutional protection despite some recent political progress. First, the discrimination that gay persons have suffered has been so pervasive and severeeven though their sexual orientation has no bearing at all on their ability to contribute to or perform in societythat it is highly unlikely that legislative enactments alone will suffice to eliminate that discrimination. As we previously have noted; see part V A of this opinion; prejudice against gay persons is long-standing and deeply rooted, in this state and throughout the nation. In fact, until recently, gay persons were widely deemed to be mentally ill; see footnote 27 of this opinion and accompanying text; and their intimate conduct was subject to criminal sanctions. See, e.g., Bowers v. Hardwick, supra, 478 U.S. at 19394, 106 S.Ct. 2841. It is impossible to overestimate the stigma that attaches in such circumstances. After all, there can
hardly be more palpable discrimination against a class than making the conduct that defines the class criminal. (Internal quotation marks omitted.) Lawrence v. Texas, supra, 539 U.S. at 583, 123 S.Ct. 2472 (OConnor, J., concurring in the judgment); accord *198Padula v. Webster, 822 F.2d 97, 103 (D.C.Cir.1987); see also Lawrence v. Texas, supra, at 575, 123 S.Ct. 2472 ([w]hen homosexual conduct is made criminal by the law of the [s]tate, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres). That prejudice against gay persons is so widespread and so deep-seated is due, in large measure, to the fact that many people in our state and nation sincerely believe that homosexuality is morally reprehensible. Indeed, homosexuality is contrary **445 to the teachings of more than a few religions.36 In its amicus brief submitted to this court, the Becket Fund for Religious Liberty, which represents the interests ... of religious persons and institutions that conscientiously object to treating [same] sex and [opposite] sex unions as moral equivalents, notes that many religious groups do not accept [a sexual relationship] among same sex couples as a matter of conscience and that probably [the] majority ... [of] religious groups ... oppose same sex marriage. As the United States Supreme Court has recognized, for centuries there have been powerful voices to condemn homosexual conduct as immoral. The condemnation [of homosexuality] has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives. Lawrence v. Texas, supra, 539 U.S. at 571, 123 S.Ct. 2472. Former United States Supreme Court Chief Justice Warren Burger made this same point *199 not long ago: Decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilization. Condemnation of those practices is firmly rooted in JudeaoChristian moral and ethical standards; Bowers v. Hardwick, supra, 478 U.S. at 196, 106 S.Ct. 2841 (Burger, C.J., concurring); and represents a millennia of moral teaching. Id., at 197, 106 S.Ct. 2841. Feelings and beliefs predicated on such profound religious and moral principles are likely to be enduring, and persons and groups adhering to those views undoubtedly will continue to exert influence over public policy makers.37 Beyond moral disapprobation, gay persons also face virulent homophobia that rests on nothing more than feelings of revulsion toward gay persons and the intimate 23
sexual conduct with which they are associated. Unfortunately, [h]omosexuals are hated, quite irrationally, for what they are.... High Tech Gays v. Defense Industrial Security Clearance Office, supra, 909 F.2d at 382 (Canby, J., dissenting). Such visceral prejudice is reflected in the large number of hate crimes that are perpetrated against gay persons.38 The **446 prevalence *200 of such crimes has prompted the legislature to pass hate crime legislation that includes sexual orientation, along with race, religion, ethnicity, disability and gender, as a protected class. See General Statutes 53a181j, 53a181k and 53a181l. The irrational nature of the prejudice directed at gay persons, who are ridiculed, ostracized, despised, demonized and condemned merely for being who they are; Snetsinger v. Montana University System, supra, 325 Mont. at 160, 104 P.3d 445 (Nelson, J., concurring); is entirely different in kind than the prejudice suffered by other groups that previously have been denied suspect or quasi-suspect class status, such as the poor, the mentally disadvantaged and the aged. In fact, the bigotry and hatred that gay persons have faced are akin to, and, in certain respects, perhaps even more severe than, those confronted by some groups that have been accorded heightened judicial protection.39 See, e.g., People v. Garcia, 77 Cal.App.4th 1269, 1279, 92 Cal.Rptr.2d 339 (2000) (only racial and religious minorities have suffered more intense and deep-seated hostility *201 than homosexuals). This fact provides further reason to doubt that such prejudice soon can be eliminated and underscores the reality that gay persons face unique challenges to their political and social integration.40 Insofar as gay persons play a role in the political process, it is apparent that their numbers reflect their status as a small and insular minority. It recently has been noted that, of the more than one-half million people who hold a political office at the local, state and national level, only about 300 are openly gay persons. Andersen v. King County, supra, 158 Wash.2d at 105, 138 P.3d 963 (Bridge, J., concurring in dissent); see also R. La Corte, State Legislature Has SecondLargest Gay Caucus in U.S. (January 24, 2008) (putting figure at about 400 openly gay persons), available **447 at http://seattle times.nwsource.com/html/nationworld/2004140976_webg aycaucus23.html?syn. No openly gay person ever has been appointed to a United States Cabinet position or to any federal appeals court.41 In addition, no openly gay person has served in the United States Senate, and only two currently serve in the United States House of Representatives. See Majority of Voters Open To Electing Gay President (August 21, 2008), available at http://www.victoryfund. org/news/view/url:majority_of_voters_open_to_electing_
gay_president. Gay persons *202 also lack representation in the highest levels of business, industry and academia. For example, no openly gay person heads a Fortune 500 company; G. Shister, Gay Chief Executives Come Out Winners (January 28, 2008), available at http://web.archive.org/web/20080129030005/http:/www.p hilly. com/inquirer/local/20080128_Gay_chief_executives_com e_out_winners.html; and it has been estimated that there are only fourteen openly gay college and university presidents or chancellors; see An Openly Gay Chancellor Heads to Madison, Wis., Chronicle of Higher Education News Blog (May 29, 2008), available at http://chronicle.com/news/article/?id=4574; a number that represents only one half of 1 percent of such positions nationwide. In this state, no openly gay person ever has been elected to statewide office, and only five of the 187 members of the state legislature are openly gay or lesbian.42 No openly gay man or lesbian ever has been appointed to the state Supreme Court or Appellate Court, and we are aware of only one openly gay or lesbian judge of the Superior Court. By contrast, this states current governor, comptroller and secretary of the state are women, as are the current chief justice and two associate justices of the state Supreme Court, and other women now hold and previously have held statewide office and positions in the United States House of Representatives. By any standard, therefore, *203 gay persons remain a political underclass in our [state and] nation. Andersen v. King County, supra, 158 Wash.2d at 105, 138 P.3d 963 (Bridge, J., concurring in dissent). In recent years, our legislature has taken substantial steps to address discrimination against gay persons. These efforts are most notably reflected in this states gay rights law; see General Statutes 46a81a through 46a81r; which broadly prohibits discrimination against a person because of his or her preference for heterosexuality, homosexuality or bisexuality, having a history of such preference or being identified with such preference....43General Statutes 46a81a. **448 This public policy extends to a wide range of activities, including membership in licensed professional associations; see General Statutes 46a81b; employment; see General Statutes 46a81c; public accommodations; see General Statutes 46a81d; housing; see General Statutes 46a81e; credit practices; see General Statutes 46a81f; employment in state agencies; see General Statutes 46a81h and 46a81j; the granting of *204 state licenses; see General Statutes 46a81k; educational and vocational programs of state agencies; see General Statutes 46a81m; and the 24
allocation of state benefits. See General Statutes 46a81n. Other statutes also seek to prohibit discrimination against same sex couples and gay persons. See General Statutes 45a724 et seq. (permitting same sex couples to adopt children); General Statutes 53a181j, 53a181k and 53a181l (recognizing crimes of intimidation based on bigotry or bias for conduct directed at another on account of that persons actual or perceived sexual orientation). These antidiscrimination provisions, along with the civil union law, reflect the fact that gay persons are able to exert some degree of political influence in the state. Notwithstanding these provisions, however, the legislature expressly has stated that the gay rights law shall not be deemed or construed (1) to mean the state of Connecticut condones homosexuality or bisexuality or any equivalent lifestyle, (2) to authorize the promotion of homosexuality or bisexuality in educational institutions or require the teaching in educational institutions of homosexuality or bisexuality as an acceptable lifestyle, (3) to authorize or permit the use of numerical goals or quotas, or other types of affirmative action programs, with respect to homosexuality or bisexuality in the administration or enforcement of the [states antidiscrimination laws], (4) to authorize the recognition of or the right of marriage between persons of the same sex, or (5) to establish sexual orientation as a specific and separate cultural classification in society.44General Statutes 46a81r. By singling out same *205 sex relationships in this mannerthere is, of course, no such statutory disclaimer for opposite sex relationshipsthe legislature effectively has proclaimed, as a matter of state policy, that same sex **449 relationships are disfavored.45 That policy, which is unprecedented among the various antidiscrimination measures enacted in this state, represents a kind of state-sponsored disapproval of same sex relationships and, consequently, serves to undermine the legitimacy of homosexual relationships, to perpetuate feelings of personal inferiority and inadequacy among gay persons, and to diminish the effect of the laws barring discrimination against gay persons.46 Indeed, the purposeful description of homosexuality *206 as a lifestyle not condoned by the state stigmatizes gay persons and equates their identity with conduct that is disfavored by the state. Furthermore, although the legislature eventually enacted the gay rights law, its enactment was preceded by nearly a decade of numerous, failed attempts at passage.47 In addition, the bill that did become law provides more limited protection than the proposals that had preceded it, all of which would have added sexual orientation to the existing nondiscrimination laws and would have treated the classification in the same manner as other protected classes.48**450 Finally, as we
have explained, the legislation that ultimately emerged from this process *207 passed only after a compromise was reached that resulted in, inter alia, an unprecedented proviso expressing the position of the legislature that it does not condone homosexuality. Thus, to the extent that those civil rights laws, as well as the civil union law, reflect the fact that gay persons wield a measure of political power, the public policy articulated in 46a81r is clear evidence of the limits of that political influence. Finally, although state law provides certain protections to gay persons, the United States Supreme Court has explained that such protective legislation, while indicative that the subject group possesses at least some political power; see, e.g., Cleburne v. Cleburne Living Center, Inc., supra, 473 U.S. at 445, 105 S.Ct. 3249 (observing that unique legislative response to special needs of mentally disadvantaged persons belies claim that such persons are so lacking in political power that they cannot attract attention of lawmakers to those special needs); also is a factor supporting the conclusion that the subject group is in need of heightened constitutional protection. In particular, in Frontiero v. Richardson, supra, 411 U.S. at 687, 93 S.Ct. 1764 (plurality opinion), the court observed that Congress had taken significant steps, both statutory and otherwise, to eliminate gender discrimination. The court further explained that, in undertaking those efforts, Congress had manifested its determination that gender classifications are inherently invidious; id.; and that that conclusion of a coequal branch of [g]overnment was significant for the purpose of deciding whether gender constituted a suspect class for equal protection purposes. Id., at 68788, 93 S.Ct. 1764. Thus, the court viewed the enactment of remedial legislation aimed at protecting women from discrimination not as reason to deny them protected class status but, rather, as a justification for granting them such treatment, because it reflected the determination of Congress that gender based classifications are likely to be founded on prejudice *208 and stereotype. See id. We therefore agree with Chief Judge Judith S. Kaye of the New York Court of Appeals that [s]uch measures acknowledgerather than mark the end ofa history of purposeful discrimination....49**451Hernandez v. Robles, supra, 7 N.Y.3d at 38889, 821 N.Y.S.2d 770, 855 N.E.2d 1 (Kaye, C.J., dissenting); see also Watkins v. United States Army, supra, 875 F.2d at 727 (Norris, J., concurring in the judgment) ([t]he very fact that homosexuals have historically been underrepresented in and victimized by political bodies is itself strong evidence that they lack the political power necessary to ensure fair treatment at the hands of government). As this court has observed, the gay rights law was 25
enacted in order to protect people from pervasive and invidious discrimination on the basis of sexual orientation.50Gay & Lesbian Law Students Assn. v. Board *209 of Trustees, 236 Conn. 453, 48182, 673 A.2d 484 (1996). The antidiscrimination provisions of our gay rights law, no less than the provisions that Congress had enacted prior to Frontiero to counter gender discrimination; see Frontiero v. Richardson, supra, 411 U.S. at 687, 93 S.Ct. 1764 (plurality opinion) (citing Title VII of Civil Rights Act of 1964, Equal Pay Act of 1963 and proposed **452 equal rights amendment to United States constitution); represent a legislative consensus that sexual orientation discrimination, like gender discrimination several decades ago, is widespread, invidious and resistant to change. Gay persons, moreover, continue to face an uphill battle in pursuing political success. The awareness of public hatred and the fear of violence that often accompanies it undermine efforts to develop an effective gay political identity. [Gay persons] are disinclined to risk *210 retaliation by open identification with the movement, and potential allies from outside the gay [and lesbian] community may think twice about allying their fortunes with such a despised population. That may explain why many gay [and lesbian] officials hide their sexual orientation until they have built up considerable public trust, or why gay [and lesbian] candidates have not been elected to public office in due proportion to the size of the gay [and lesbian] community or [have not] enjoyed the same level of political success as blacks, Latinos, and other minority groups. K. Wald, The Context of Gay Politics, in The Politics of Gay Rights (The University of Chicago Press, C. Rimmerman, K. Wald & C. Wilcox eds., 2000) pp. 1, 14; see also, e.g., Jantz v. Muci, supra, 759 F.Supp. at 1550 (Due to the harsh penalties imposed by society on persons identified as homosexual, many homosexual persons conceal their sexual orientation. Silence, however, has its cost. It may allow a given individual to escape from the discrimination, abuse, and even violence which is often directed at homosexuals, but it ensures that homosexuals as a group are unheard politically.). With respect to the comparative political power of gay persons, they presently have no greater political powerin fact, they undoubtedly have a good deal less such influencethan women did in 1973, when the United States Supreme Court, in Frontiero, held that women are entitled to heightened judicial protection. Frontiero v. Richardson, supra, 411 U.S. at 688, 93 S.Ct. 1764 (plurality opinion). After all, at that time, women were not a true minority, and they had begun to flex their political muscle on the national scene. Indeed, the court in
Frontiero accorded women protected status even though gender discrimination already was broadly prohibited by federal legislationjust as sexual orientation discrimination is statutorily prohibited in this state. Moreover, when Frontiero was decided, the proposed equal rights amendment to the United States constitution, *211 which would have accorded women suspect class status; see id., at 692, 93 S.Ct. 1764 (Powell, J., concurring in the judgment) (explaining that equal rights amendment, if adopted [would] resolve the substance of [the] precise question [before the court]); had broad support in Congress, where it passed overwhelmingly; see 118 Cong. Rec. 9598 (1972) (Senate Vote on H.R.J. Res. 208); 117 Cong. Rec. 35,815 (1971) (House vote on H.R.J. Res. 208); and among the states, where it nearly achieved the votes necessary for adoption. See R. Lee, A Lawyer Looks at the Equal Rights Amendment (Brigham Young University Press 1980) c. 5, p. 37. In addition, both major political parties ha[d] repeatedly supported [the amendment] in their national party platforms; S.Rep. No. 92689 (1972) p. 2; and it had been endorsed by Presidents Eisenhower, Kennedy, Johnson and Nixon, along with an extraordinary array of civic, labor and legal organizations. Id., at pp. 23. In 1974, a nationwide poll indicated overwhelming public support for the amendment. G. Steiner, Constitutional Inequality: The Political Fortunes of the Equal Rights Amendment (Brookings Institution 1985) c. 2, p. 27. In view of the conclusion of the court in Frontiero that women were **453 entitled to heightened judicial protection despite their emergence as a growing political force and despite the widespread, bipartisan support for the equal rights amendmentthe imminent ratification of which seemed all but assuredwe see no justification for depriving gay persons of such protection. Tellingly, the defendants have proffered no justification for applying a different standard to gay persons under the state constitution than the court in Frontiero applied to women for purposes of the federal constitution.51 *212 We also note that, despite the likelihood of ratification when Frontiero was decided in 1973, the equal rights amendment ultimately did not muster enough support among the states, and it therefore never was adopted. See R. Lee, supra, c. 5, at p. 37. Thus, one of the lessons to be learned from Frontiero and its treatment of the equal rights amendmentan initiative that seemed far more likely to succeed nationally than any current effort to enact a gay marriage law in this stateis that, because support for particular legislation may ebb or flow at any time, the adjudication of the rights of a disfavored minority cannot depend solely on such an eventuality. Finally, gay persons clearly lack the political power that 26
AfricanAmericans and women possess today. See, e.g., High Tech Gays v. Defense Industrial Security Clearance Office, supra, 909 F.2d at 378 (Canby, J., dissenting) ([c]ertainly, homosexuals as a class wield less political power than blacks, a suspect [class], or women, a quasi-suspect one); see also Dean v. District of Columbia, supra, 653 A.2d at 351 (Ferren, J., concurring in part and dissenting in part) (observing that gay persons have considerably less political power than AfricanAmericans). Yet political gains by AfricanAmericans and women have not been found to obviate the need for heightened judicial scrutiny of legislation that draws distinctions on the basis of race or gender. We therefore agree fully with the California Supreme Courts recent observation in recognizing gay persons as a suspect class under the California constitution: [I]f a groups current political powerlessness were a prerequisite to a characteristics being considered a constitutionally suspect basis for differential treatment, it would be impossible to justify the numerous decisions that continue to treat sex, race, and religion as suspect [or quasi-suspect] classifications. Instead, [the relevant case law] make[s] clear that the most important factors *213 in deciding whether a characteristic should be considered a constitutionally suspect basis for classification are whether the class of persons who exhibit a certain characteristic historically has been subjected to invidious and prejudicial treatment, and whether society now recognizes that the characteristic in question generally bears no relationship to the individuals ability to perform or contribute to society. (Emphasis in original.) In re Marriage Cases, supra, 43 Cal.4th at 843, 76 Cal.Rptr.3d 683, 183 P.3d 384. Under the standard for political powerlessness that the defendants advocate, however, AfricanAmericans and women necessarily would have lost their protected status. The fact that courts have not seen fit to remove those groups from that status, even though they wield considerable political power, leads inexorably to the conclusion that gay persons **454 cannot be deprived of heightened judicial protection merely because of their relatively limited political influence.52
contribute to society. In Justice Bordens view, however, gay persons are not entitled to heightened protection, even though they meet the first three criteria, because the political power of gay persons overrides those three considerations.53 In support of his conclusion, Justice Borden relies primarily on the existence of our state statutes barring discrimination against gay persons, the civil union law and the statements of several persons in favor of legislation supporting the right of gay persons to marry.54 We disagree with *215 Justice Bordens analysis **455 and his conclusion because it is absolutely clear that, under the test that Justice Borden acknowledges is applicable to the equal protection provisions of both the federal and state constitutions, gay persons today are entitled to heightened protection under the state constitution no less than women were entitled to heightened protection under the federal constitution in 1973. Our fundamental disagreement with Justice Borden stems from his assertion that the holding of Frontiero according women protected status under the federal constitution in 1973 is irrelevant to the state constitutional *216 issue raised by this case. Footnote 14 of Justice Bordens dissenting opinion. To support this assertion, Justice Borden maintains that, because gender already is a suspect class under the state constitution, the status of women under the federal constitution is beside the point. Id. On the contrary, Justice Borden completely misses the point in attempting to explain why Frontiero and, in particular, its treatment of the political powerlessness component of the suspectness inquiry, is unimportant to this case. Simply put, that point is: if, as Justice Borden acknowledges, the court in Frontiero was correct in according women protected status under the same test that we apply for purposes of the state constitution, why would we deny gay persons, who have less political power than women possessed in 1973, the same measure of protection under the state constitution? This question is hardly irrelevant; in fact, it is the critical issue with respect to this component of the suspectness inquiry, for gay persons are entitled to have their claim for heightened constitutional protection under the state constitution given the same, evenhanded consideration of the political powerlessness standard that other historically maligned groups, including women, **456 have received under the federal constitution. In other words, as one commentator has explained, [because] the term [political] powerlessness is not self-defining ... [t]here must be some yardstick of political power to which the power of [gay persons] can be compared.
*214 3 In his dissenting opinion, Justice Borden expresses his agreement that gay persons satisfy the first three prongs of the suspectness inquiry, that is, they have suffered a deplorable history of invidious discrimination, their sexual orientation is a distinguishing characteristic that defines them as a discrete group, and a persons sexual orientation bears no relation to a persons ability to
27
The only logical standard of comparison is other ... quasi-suspect classes such as ... women. If [women were] sufficiently powerless to be [accorded] ... quasi-suspect [class status], then logically [gay persons] must be, at a minimum, more politically powerful than these groups if they are in fact too powerful to be a ... quasi-suspect class. *217 Amazingly [however], not a single court has ever compared the political power of [gay persons] to that of women....
By contrast, gay persons undisputedly comprise a small minority of the population. Furthermore, by the time Frontiero was decided in 1973, Congress already had passed comprehensive antidiscrimination legislation in recognition of the long history **457 of discrimination to which women had been subjected. See Frontiero v. Richardson, supra, 411 U.S. at 687, 93 S.Ct. 1764 (plurality opinion). The court in Frontiero, however, accorded women protected status despite the existence of this legislation and notwithstanding the fact that they comprised a majority of the population. See id., at 688, 93 S.Ct. 1764. Of even greater significance for present purposes, however, the equal rights amendment was pending approval at that time, and its ratification would have accorded women status as a suspect class. In other words, upon ratification of that amendment, no statutory classification pertaining to women would have been sustainable unless the state could establish that the classification was truly necessary to achieve a compelling state interest. Thus, the equal rights amendment would have afforded women the highest possible level of constitutional protection. Most significantly, therefore, the constitutional protection to be afforded women under the equal rights amendment would have far exceeded, both in scope and in import, the statutory benefit of a civil *219 union law and, in the event of its enactment, a same sex marriage law. Because Justice Borden places so much emphasis on what he perceives to be the future of gay marriage in this state; see part I C 1 of Justice Bordens dissenting opinion (quoting certain selected legislators voicing optimism about future of gay marriage in Connecticut); we look to the status of the equal rights amendment when Frontiero was decided in 1973. As we already have noted, the amendment passed overwhelmingly in Congress: the vote in the United States Senate in favor of the amendment was 84 to 8, with 7 abstaining; 118 Cong. Rec. 9598 (1972); and the vote in the United States House of Representatives was 354 to 24, with 51 abstaining. 117 Cong. Rec. 35,815 (1971). As one scholar has observed about that vote, [t]he triumph of the [equal rights amendment] in Congress was complete, deliberate, and overpowering, an outcome clearly attributable to a congressional perception that a national consensus had been achieved. G. Steiner, supra, c. 2, at p. 26. When the [e]qual [r]ights [a]mendment passed the Senate on March 22, 1972, it appeared to be riding an irresistible high. The Judiciary Committee had reported the resolution without amendment on a 151 vote. Hugh Scott of Pennsylvania, Republican leader in the Senate, then solicited and got an endorsement from President [Richard M.] Nixon. Throughout [twenty-one] years, the 28
*** The point, of course, is not that the courts should tolerate gender discrimination. The point is that the courts are applying a very different standard to [gay persons] than they have been applying to other [protected] groups. No court has been willing to evaluate the political power of women ... by the same standard that they have applied to [gay persons. Although] the equal protection of the laws does not require the same result for all groups seeking [quasi-suspect] class status, surely it requires that courts apply the same standards to all who seek judicial protection. (Emphasis in original.) E. Gerstmann, supra, c. 4, at pp. 8183. This is precisely the flaw in Justice Bordens analysis. Because gay persons, like women, fully satisfy the first three criteria of the suspectness inquiry, it would be manifestly unfair to the plaintiffs, and to gay persons generally, to ignore or dismiss the analysis and result of Frontiero, which correctly concluded that women were not so politically powerful as to obviate the need for heightened judicial scrutiny of gender-based classifications. A brief recapitulation of the political status of women when Frontiero was decided makes it crystal clear that, upon application of the standard applied by the court in Frontiero, gay persons have the same right to protected status under the state constitution that women have been accorded under the federal constitution.55 *218 As we previously have discussed, when Frontiero was decided in 1973, women wielded considerable political clout. In fact, women were not even a voting minority. Census data reveal that, in 1970, there were approximately 70 million women of voting age in the United States and approximately 63 million men of that age. See United States Census Bureau, Democratic Trends in the 20th Century (November, 2002) p. A9, available at http://www.census. gov/prod/2002pubs/censr4.pdf. Thus, voting age women outnumbered voting age men by approximately 7 million.
president wrote, I have not altered my belief that equal rights for women warrant a constitutional guaranteeand I therefore continue to favor the enactment of the constitutional amendment to achieve this goal Id., at p. 22. Thus, [a] high level of optimism [for its ultimate approval] seemed well warranted.... House passage had been by nearly fifteen to one and Senate passage by better than ten to one. Congressional action reflected a bipartisan effort.... Unless experienced and politically sensitive federal officeholders were *220 wildly out of touch with sentiment in the states, or compelling new considerations were to surface, or proponents were to commit some egregious blunder, ratification then seemed a foregone conclusion. Id., at p. 23. Supporters of the equal rights amendment were therefore all but certain that it soon would become law. For example, United States Senator Birch Bayh, the principal proponent of the amendment in the Senate, expressed his view that the amendment would be ratified with dispatch. (Internal quotation marks omitted.) E. Shanahan, Equal Rights Amendment Is Approved by Congress, N.Y. Times, March 22, 1972, p. A1. Moreover, in **458 his testimony before the Senate, Senator Bayh explained that more than one half of the members of the Senate had sponsored the equal rights amendment, and that [b]oth the Citizens Advisory Council on the Status of Women, created by President [John F.] Kennedy, and the Presidents Task Force on Womens Rights and Responsibilities, created by President Nixon, have recommended in strongest terms approval of the amendment. 118 Cong. Rec. 8900 (1972). Senator Bayh also identified more than fifty major civic and professional organizations that supported the amendment, including the American Association of College Deans, American Association of University Women, American Civil Liberties Union, American Jewish Congress, American Newspaper Guild, American Nurses Association, Common Cause, Council for Christian Social Action, United Church of Christ, International Association of Human Rights Agencies, International Brotherhood of Painters and Allied Trades, International Brotherhood of Teamsters, International Union of United Automobile, Aerospace and Agricultural Implement Workers, National Association of Colored Women, National Education Association, National Organization for Women and United *221 Automobile Workers. Id. Furthermore, the chief sponsor of the equal rights amendment in the House of Representatives, Representative Martha W. Griffiths, testified that, in her view, the amendment would be ratified almost immediately. 117 Cong. Rec. 35,815 (1971). In fact, [w]ithin forty-eight hours of congressional passage, six states had ratified the [equal rights amendment], and
within nine months, twenty-two states had ratified it. A. Held, S. Herndon & D. Stager, The Equal Rights Amendment: Why the ERA Remains Legally Viable and Properly Before the States, 3 Wm. & Mary J. Women & L. 113, 116 (1997). The equal rights amendment ultimately was approved by thirty-five states, only three short of the thirty-eight states needed for ratification. R. Lee, supra, c. 5, at p. 37. Thus, in stark contrast to the proposed gay marriage bill on which Justice Borden relies in concluding that gay persons in this state are too politically powerful to warrant heightened constitutional protection, the equal rights amendment sailed through Congress and very nearly was ratified by the requisite number of states. As we have explained, moreover, the equal rights amendment would have provided women with the broadest and most comprehensive constitutional protection possible. Even though it appeared certain that the amendment would promptly receive final approval, and despite the political power manifested by such a feat, the court in Frontiero nevertheless concluded that women were entitled to heightened protection under the federal equal protection clause. Despite this precedent, Justice Borden attributes overriding political power to gay persons in this statepower that he concludes disqualifies them from heightened protection under the state constitutionon the basis of a few statements of support for a gay marriage bill that was not even submitted to a vote in the legislature because its supporters knew that, as in the past, the bill had no *222 chance of passage. This analysis cannot be squared with Frontiero. In sum, because, in 1973, (1) women constituted a majority of the population, (2) they possessed enormous potential electoral strength due to their majority status, (3) they were protected by comprehensive federal antidiscrimination legislation, and (4) imminent ratification of the equal rights amendment to the federal constitution appeared certain, there can be no question that women possessed more political power nationally in 1973 than gay **459 persons currently possess in this state.56 It therefore is impossible to conclude that, even though the court in Frontiero properly determined that women were not disqualified from heightened constitutional protection by virtue of the political power that they possessed, gay persons in this state are disqualified from such protection because of their political power.57 In failing to acknowledge this factindeed, in failing even to reach the merits of this issueJustice Borden avoids a critically important aspect of the plaintiffs equal protection claim, and, as a consequence, he reaches a result that is incompatible with precedent that he himself agrees is correct.58 Thus, it is 29
apparent *223 that Justice **460 Bordens conclusion that gay persons must *224 be denied protected status under the state constitution is based on the application of a standard that differs markedly from the standard applied by the court in Frontiero.59 Because we agree both with the standard applied by the court in Frontiero and with its holding, *225 we reject Justice Bordens conclusion that women are entitled to greater protection under the federal constitution than gay persons are entitled to under the state constitution. We note, finally, Justice Bordens assertion that we are alone in mandating gay marriage as a matter of state constitutional law in the presence of ... a ... civil union [law] and an indication of support **461 for gay marriage through legislation. This assertion, like Justice Bordens suggestion that the political power of gay persons in this state is somehow unique is inaccurate. For example, in California, which has the equivalent of a civil union statute, the legislature twice passed a gay marriage bill, but, on each occasion, the bill was vetoed by the governor. See J. Tucker, Schwarzenegger Vetoes SameSex Marriage Bill Again (October 13, 2007), available at http:// www.sfgate.com/cgi-bin/article.cgi?f =/c/a/2007/10/13/BAT7SPC72.DTL. Thus, under the standard on which Justice Borden relies, gay persons in California have demonstrated far greater political power than gay persons in this state. Nevertheless, following the vetoes of the gay marriage legislation in California, the California Supreme Court concluded that, under that states constitution, gay persons, as a suspect class, cannot be barred from marrying the same sex person of their choice. See In re Marriage Cases, supra, 43 Cal.4th at 84344, 85557, 76 Cal.Rptr.3d 683, 183 P.3d 384. The Massachusetts Supreme Judicial Court also has determined that same sex marriage is mandated under the Massachusetts constitution and declaration of rights after expressly concluding that a civil union alternative, which was proposed by the Massachusetts legislature, *226 would have been unconstitutional; see Opinions of the Justices to the Senate, supra, 440 Mass. at 120910, 802 N.E.2d 565; notwithstanding significant support for gay marriage in that state. See National Gay and Lesbian Task Force, Recent State Polls on SameSex Marriage and Civil Unions (May 6, 2005), available at http:/www. thetaskforce.org/downloads/reports/reports/May2005State Polls.pdf. Furthermore, the highest courts of two other states have reserved judgment on whether civil unions will suffice to provide gay persons with the equal rights to which they have been found to be entitled under the state constitutions of those states. See Lewis v. Harris, supra, 188 N.J. at 45860, 908 A.2d 196;Baker v. State, supra, 170 Vt. at 22425, 744 A.2d 864. We therefore reject Justice Bordens assertion that our state constitutional
interpretation with respect to the rights of same sex couples is in any way unique or unprecedented.
4 In sum, the relatively modest political influence that gay persons possess is insufficient to rectify the invidious discrimination to which they have been subjected for so long. Like the political gains that women had made prior to their recognition as a quasi-suspect class, the political advances that gay persons have attained afford them inadequate protection, standing alone, in view of the deep-seated and pernicious nature of the prejudice and antipathy that they continue to face. Today, moreover, women have far greater political power than gay persons, yet they continue to be accorded status as a quasi-suspect class. See Breen v. Carlsbad Municipal Schools, supra, 138 N.M. at 338, 120 P.3d 413 (explaining that intermediate scrutiny is appropriate with respect to discrimination based on sex even though the darkest period of discrimination may have passed for [the] historically maligned group and that [such] scrutiny should still be applied to protect against more subtle forms of unconstitutional discrimination *227 created by unconscious or disguised prejudice). We conclude, therefore, that, to the extent that gay persons possess some political power, it does not disqualify them from recognition as a quasi-suspect class under the state constitution in view of the pervasive and invidious discrimination to which they historically have been subjected due to an innate personal characteristic that has absolutely no bearing on their ability to perform in or contribute to society.
**462 VI
ADDITIONAL RELEVANT CONSIDERATIONS UNDER GEISLER Although we conclude that gay persons meet each of the four factors identified by the United States Supreme Court for determining whether a group is entitled to heightened judicial scrutiny as a quasi-suspect class, we are obliged, under this courts state constitutional jurisprudence, also to consider the extent to which any of the considerations identified by this court in State v. Geisler, supra, 222 Conn. at 685, 610 A.2d 1225, may counsel for or against recognizing gay persons as a quasi-suspect class.60 We 30
therefore turn to those factors.
Textual Analysis Article first, 20, of the Connecticut constitution provides in relevant part that [n]o person shall be denied the equal protection of the law.... This provision prohibits the state from treating similarly situated persons differently without sufficient reason to do so. See *228 part II of this opinion. Whether a legislative enactment passes muster under this portion of article first, 20, frequently will depend on the level of judicial scrutiny to which the enactment is subject, a determination that in turn depends on whether the statutory classification affects a suspect or quasi-suspect class or infringes on a fundamental right. Because the pertinent language of article first, 20, says nothing about that test or how it is to be applied, the provision is facially neutral and, therefore, does not favor either the plaintiffs or the defendants.61 The defendants maintain, however, that the remaining language of article first, 20, as amended by article twenty-one of the amendments, supports their contention that gay persons do not comprise a quasi-suspect class. That language provides that no person shall be subjected to ... discrimination in the exercise or enjoyment of his or her civil or political rights because of religion, race, color, ancestry, national origin, sex or physical or mental disability. Conn. Const., amend. XXI. The defendants contend that, because sexual orientation is not included in the list of suspect classes enumerated in article first, 20, as amended, sexual orientation cannot comprise a quasi-suspect class for purposes of the state constitutions equal protection provisions. We reject this claim for the reasons that we expressed previously in part III of this opinion.
heightened scrutiny under the equal protection provisions **463 of the state constitution. The Appellate Court recently addressed the issue,62 however, in State v. John M., 94 Conn.App. 667, 894 A.2d 376 (2006), revd on other grounds sub nom. State v. John F.M., 285 Conn. 528, 940 A.2d 755 (2008), and concluded that such classifications are entitled only to rational basis review on the basis of its reading of federal and sister state precedent. Id., at 67885, 894 A.2d 376. For several reasons, we are not persuaded by the Appellate Courts analysis in John M. First, the Appellate Court decided the issue under the federal constitution, not the state constitution. See id., at 67879 n. 10, 894 A.2d 376. Second, the Appellate Court did not apply the four-pronged test for determining whether a group *230 is entitled to heightened protection but, rather, relied solely on case law from other jurisdictions. See id., at 67985, 894 A.2d 376. Third, for the reasons set forth in parts VI C and D of this opinion, the cases on which the Appellate Court did rely are not persuasive because those cases either failed to address the issue of whether gay persons comprise a suspect or quasi-suspect class; see Muth v. Frank, 412 F.3d 808, 81718 (7th Cir.), cert. denied, 546 U.S. 988, 126 S.Ct. 575, 163 L.Ed.2d 480 (2005); Standhardt v. Superior Court, 206 Ariz. 276, 28385, 77 P.3d 451 (App.2003), review denied sub nom. Standhardt v. MCSC, Docket No. CV030422PR, 2004 Ariz. LEXIS 62 (Ariz. May 25, 2004); People v. Downin, 357 Ill.App.3d 193, 199200, 293 Ill.Dec. 371, 828 N.E.2d 341, appeal denied, 216 Ill.2d 703, 298 Ill.Dec. 382, 839 N.E.2d 1029 (2005); failed to engage in any analysis of that issue, relying instead on the fact that, to date, the United States Supreme Court has not held that sexual orientation constitutes a suspect or quasi-suspect classification; see Johnson v. Johnson, 385 F.3d 503, 532 (5th Cir.2004); State v. Limon, 280 Kan. 275, 286, 122 P.3d 22 (2005); or were predicated on precedent that has been overruled. See Lofton v. Secretary of the Dept. of Children & Family Services, 358 F.3d 804, 818 & n. 16 (11th Cir.2004), cert. denied, **464543 U.S. 1081, 125 S.Ct. 869, 160 L.Ed.2d 825 (2005). Because the analysis in John M. is not persuasive, it provides no support for the defendants claim that gay persons are not entitled to recognition as a quasi-suspect class.
Decisions of This Court and the Appellate Court This court never has considered whether classifications that discriminate against gay persons are subject *229 to
[23]
Persuasive Federal Precedent When interpreting our state constitution, it is 31
appropriate to consider relevant federal precedent. We employ this precedent for guidance and analogy [in construing our own constitution, however, only] when the federal authorities are logically persuasive and well-reasoned. *231 W. Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv. L.Rev. 489, 502 (1977) (state court judges, and also practitioners, do well to scrutinize constitutional decisions by federal courts, [but] only if they are found to be logically persuasive and well-reasoned, paying due regard to precedent and the policies underlying specific constitutional guarantees, may they properly claim persuasive weight as guideposts when interpreting counterpart state guarantees). State v. Joyce, 229 Conn. 10, 20, 639 A.2d 1007 (1994). As the defendants correctly assert, the vast majority of federal circuit courts that have considered the issue have concluded that sexual orientation is not a suspect or quasi-suspect classification, and, consequently, legislation that classifies on the basis of sexual orientation is subject to rational basis review.63 These courts, however, relied primarily on the holding of Bowers v. Hardwick, supra, 478 U.S. at 196, 106 S.Ct. 2841, in which the United States Supreme Court upheld the constitutionality of a Georgia statute that criminalized consensual homosexual sodomy.64Bowers held that gay persons have no fundamental *232 right to engage in such conduct; id., at 19092, 106 S.Ct. 2841; that rational basis review of the antisodomy statute therefore was appropriate; see id., at 196, 106 S.Ct. 2841; and that the Georgia legislatures moral disapproval of that conduct constituted sufficient justification for the law. See id. Although Bowers was a due process case; see id., at 190, 106 S.Ct. 2841; the various federal circuit courts faced with equal protection challenges to statutory classifications based on **465 sexual orientation have reasoned that because, under Bowers, it is constitutionally permissible to criminalize intimate homosexual conduct, a group that is defined by that conduct cannot constitute a suspect or quasi-suspect class. E.g., Equality Foundation of Greater Cincinnati, Inc. v. Cincinnati, 54 F.3d 261, 266 (6th Cir.1995) ([s]ince Bowers, every circuit court which has addressed the issue has decreed that homosexuals are entitled to no special constitutional protection, as either a suspect or a quasi-suspect class, because the conduct which places them in that class is not constitutionally protected), vacated on other grounds and remanded, 518 U.S. 1001, 116 S.Ct. 2519, 135 L.Ed.2d 1044 (1996); Steffan v. Perry, 41 F.3d 677, 684 n. 3 (D.C.Cir.1994) (if the government can criminalize homosexual conduct, a group that is defined by reference to that conduct cannot constitute a suspect class [internal quotation marks omitted] ); High Tech Gays v. Defense Industrial Security
Clearance Office, 895 F.2d 563, 571 (9th Cir.1990) ([o]ther circuits are in accord and have held that although the court in [Bowers ] analyzed the constitutionality of the [antisodomy] statute on a due process rather than equal protection basis, by the [Bowers ] majority holding that the [c]onstitution confers no fundamental right [on] homosexuals to engage in sodomy, *233 and because homosexual conduct can thus be criminalized, homosexuals cannot constitute a suspect or quasi-suspect class entitled to greater than rational basis review for equal protection purposes); Woodward v. United States, 871 F.2d 1068, 1076 (Fed.Cir.1989) ([a]fter [Bowers ] it cannot logically be asserted that discrimination against homosexuals is constitutionally infirm), cert. denied, 494 U.S. 1003, 110 S.Ct. 1295, 108 L.Ed.2d 473 (1990). Thus, the impact of Bowers ... on the equal protection claims of [gay persons was] enormous. E. Gerstmann, supra, c. 4, at p. 69. Bowers ... prevent[ed] courts from finding [gay persons] to be a suspect or quasi-suspect class even if [gay persons were] able to demonstrate a history of discrimination and substantial current discrimination against them. Id. Because Bowers was so widely viewed as disqualifying gay persons from recognition as a suspect or quasi-suspect class, in the wake of Bowers, courts gave only cursory consideration to claims by gay persons that statutes that discriminate on the basis of sexual orientation are subject to enhanced judicial scrutiny. Thus, as one court has noted, given [Bowers ] sanction of such a severe curtailment of the liberty of [gay persons, it is not surprising that] the issue of whether states should or must permit marriage between same-sex partners has only recently come into public debate. In re Marriage Cases, 49 Cal.Rptr.3d 675, 703 (App.2006), revd on other grounds, 43 Cal.4th 757, 183 P.3d 384, 76 Cal.Rptr.3d 683 (2008). Five years ago, however, in Lawrence v. Texas, supra, 539 U.S. at 578, 123 S.Ct. 2472, the United States Supreme Court overruled Bowers, thus removing the precedential underpinnings of the federal case law supporting the defendants claim that gay persons are not a quasi-suspect class. The court in Lawrence acknowledged that, in framing the issue in Bowers as it did, that is, whether the [f]ederal [c]onstitution *234 confers a fundamental right [on] homosexuals to engage in sodomy; Bowers v. Hardwick, supra, 478 U.S. at 190, 106 S.Ct. 2841; the court had fail[ed] to appreciate the extent of the liberty at stake. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said [that] marriage is simply about the right to have 32
sexual intercourse. Lawrence v. **466 Texas, supra, 539 U.S. at 567, 123 S.Ct. 2472. The court identified the real issue, both in Bowers and in Lawrence, as whether the right to liberty that gay persons share with all of our citizenry under the due process clause of the United States constitution includes the right to engage in sexual practices common to a homosexual lifestyle without government intervention. Id., at 578, 123 S.Ct. 2472. The court in Lawrence also explained that [t]he foundations of Bowers have sustained serious erosion from ... [two] decisions that were decided after Bowers, namely, Planned Parenthood v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992), and Romer v. Evans, 517 U.S. 620, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996). Lawrence v. Texas, supra, 539 U.S. at 576, 123 S.Ct. 2472. The court in Lawrence further explained: In [Casey ], the [c]ourt reaffirmed the substantive force of the liberty protected by the [d]ue [p]rocess [c]lause. The Casey decision again confirmed that our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education.... In explaining the respect the [c]onstitution demands for the autonomy of the person in making these choices, [the court] stated as follows: These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the [f]ourteenth [a]mendment. *235 At the heart of liberty is the right to define ones own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the [s]tate.... Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do. The decision in Bowers would deny them this right. (Citations omitted.) Id., at 57374, 123 S.Ct. 2472. The court continued: The second post-Bowers case of principal relevance is Romer .... There the [c]ourt struck down class-based legislation directed at homosexuals as a violation of the [e]qual [p]rotection [c]lause. Romer invalidated an amendment to Colorados [c]onstitution which named as a solitary class persons who were homosexuals, lesbians, or bisexual either by orientation, conduct, practices or relationships ... and deprived them of protection under state antidiscrimination laws. We concluded that the provision was born of animosity toward the class of persons affected and further that it had no rational relation to a legitimate governmental
purpose. (Citations omitted.) Id., at 574, 123 S.Ct. 2472. Lawrence thereafter expressly endorsed the following portion of Justice John Paul Stevens dissent in Bowers: Our prior cases make two propositions abundantly clear. First, the fact that the governing majority in a [s]tate has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack. Second, individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of liberty protected by the [d]ue [p]rocess [c]lause of the [f]ourteenth [a]mendment. *236 Moreover, this protection extends to intimate choices by unmarried as well as married persons. Id., at 57778, 123 S.Ct. 2472, quoting Bowers v. Hardwick, supra, 478 U.S. at 216, 106 S.Ct. 2841 (Stevens, J., dissenting). Thus, as the court stated, [w]hen sexuality finds overt expression in **467 intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the [c]onstitution allows homosexual persons the right to make this choice. Lawrence v. Texas, supra, 539 U.S. at 567, 123 S.Ct. 2472.Bowers contrary conclusion, the court observed, demeans the lives of homosexual persons; id., at 575, 123 S.Ct. 2472; by depriving them of the respect for their private lives; id., at 578, 123 S.Ct. 2472; that the constitution guarantees. Lawrence represents a sea change in United States Supreme Court jurisprudence concerning the rights of gay persons. To a very substantial degree, Lawrence undermines the validity of the federal circuit court cases that have held that gay persons are not entitled to heightened judicial protection because, as we have explained, the courts in those cases relied heavilyand in some cases exclusivelyon Bowers to support their conclusions. See Witt v. Dept. of the Air Force, 527 F.3d 806, 828 (9th Cir.2008) (Canby, J., concurring in part and dissenting in part) ([b]ecause Lawrence unequivocally overruled Bowers, it undercut the theory [and] reasoning underlying [the cases that have relied on Bowers to deny gay persons heightened protection under the federal equal protection clause] in such a way that the cases are clearly irreconcilable [internal quotation marks omitted] ). In stark contrast to Bowers, Lawrence recognizes that gay persons, no less than heterosexuals, are constitutionally entitled to freedom from state interference in matters of sexual intimacy. In acknowledging this liberty interest, Lawrence rejected the notion that moral disapproval of gay persons can justify discriminatory state action that *237 infringes on their right of personal autonomy. See 33
Lawrence v. Texas, supra, 539 U.S. at 578, 123 S.Ct. 2472 (state antisodomy statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual). Thus, whereas Bowers erected a profound impediment to gay persons seeking protected status, Lawrence removed that barrier. Gay persons, therefore, cannot be deprived of suspect or quasi-suspect class status merely because others may find their intimate sexual conduct objectionable, repugnant or immoral. In fact, after Lawrence, the social and moral disapprobation that gay persons historically have faced supports their claim that they are entitled to heightened protection under the state constitution.65 See part V A of this opinion. **468 Finally, we reject the defendants contention that, in Romer v. Evans, supra, 517 U.S. at 63132, 116 S.Ct. 1620, the United States Supreme Court implicitly concluded that gay persons do not comprise a suspect or quasi-suspect class under the federal constitution because the court applied rational basis review, rather than heightened scrutiny, *238 in sustaining an equal protection challenge to a Colorado state constitutional amendment that prohibited all legislative, executive or judicial action at any level of state or local government designed to protect ... [gay] persons....66Id., at 624, 116 S.Ct. 1620. Because the court indicated that the Colorado constitutional amendment could not withstand even rational basis review, the lowest level of judicial scrutiny, the court had no reason to decide whether heightened review was appropriate. See id., at 632, 116 S.Ct. 1620. In the absence of any contrary indication in Romer, we must presume that the court followed its own well established principle never to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied. (Internal quotation marks omitted.) Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 501, 105 S.Ct. 2794, 86 L.Ed.2d 394 (1985). Indeed, in accordance with this general rule of judicial restraint, the United States Supreme Court previously has declined to decide whether heightened scrutiny is applicable when a statutory classification fails rational basis review. See *239Hooper v. Bernalillo County Assessor, 472 U.S. 612, 618, 105 S.Ct. 2862, 86 L.Ed.2d 487 (1985) (declining to determine whether to apply heightened scrutiny when classification did not meet rational basis test because if the statutory scheme cannot pass even the minimum rationality test, [the courts] inquiry ends); cf. Mississippi University for Women v. Hogan, 458 U.S. 718, 724 n. 9, 102 S.Ct. 3331, 73 L.Ed.2d 1090 (1982) (declining to decide whether to apply strict scrutiny when classification could not survive intermediate scrutiny). Romer, therefore, lends no support to the defendants claim that statutory classifications based on sexual
orientation are subject only to rational basis review. In sum, although federal case law is nearly unanimous in concluding that gay persons are not a suspect or quasi-suspect class, those cases ultimately are not persuasive because they rely so heavily on Bowers v. Hardwick, supra, 478 U.S. at 186, 106 S.Ct. 2841, which has been overruled. Lawrence v. Texas, supra, 539 U.S. at 578, 123 S.Ct. 2472 (Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers ... should be **469 and now is overruled.). In addition, the federal circuit courts that have determined that gay persons are not entitled to heightened protection have failed altogether to reconcile their analyses with the one that the United States Supreme Court used in concluding that women comprise a quasi-suspect class. See part V D of this opinion. Indeed, in our view, the individual federal circuit and district courts and judges that have analyzed the issue most carefully and applied the standard for determining a groups status as a suspect or quasi-suspect class most consistently with the Supreme Courts jurisprudence have concluded that statutes discriminating against gay persons are, in fact, subject to heightened scrutiny. See, e.g., High Tech Gays v. Defense Industrial Security Clearance Office, supra, 909 F.2d at 37682 (Canby, J., dissenting); Watkins v. United States Army, supra, 875 F.2d at 72428 (Norris, *240 J., concurring in the judgment); Able v. United States, supra, 968 F.Supp. at 86264;Equality Foundation of Greater Cincinnati, Inc. v. Cincinnati, supra, 860 F.Supp. at 43440;Jantz v. Muci, supra, 759 F.Supp. at 154751. Thus, although the weight of federal precedent favors the defendants, the weight of persuasive federal precedent favors the plaintiffs.
Persuasive Sister State Precedent The majority of sister state courts that have addressed the issue also have concluded that gay persons are not a suspect or quasi-suspect class. See, e.g., Conaway v. Deane, supra, 401 Md. at 277, 932 A.2d 571;Hernandez v. Robles, supra, 7 N.Y.3d at 36465, 821 N.Y.S.2d 770, 855 N.E.2d 1;Andersen v. King County, supra, 158 Wash.2d at 21, 24, 138 P.3d 963; see also State v. Limon, supra, 280 Kan. at 28687, 122 P.3d 22 (courts reading of federal precedent led it to conclude that classification based on sexual preference was subject to rational basis review); Dean v. District of Columbia, supra, 653 A.2d at 34
308 (affirming in per curiam opinion trial courts refusal to afford gay persons heightened protection under fifth amendment to federal constitution). The California Supreme Court, however, recently determined that gay persons do qualify as a suspect class under the equal protection provisions of that states constitution; In re Marriage Cases, supra, 43 Cal.4th at 84041, 76 Cal.Rptr.3d 683, 183 P.3d 384; and that the reasons given by the state of California for barring same sex couples from marrying were insufficient to justify the prohibition. Id., at 85456, 76 Cal.Rptr.3d 683, 183 P.3d 384.67 We conclude **470 that the state *241 court cases that have determined that gay persons do not constitute a quasi-suspect class, like the federal cases described in this part of the opinion, employed a flawed analysis, and, therefore, they do not constitute persuasive authority. In three of the cases concluding that gay persons do not constitute a protected class, the courts did so without applying the four-pronged test used by the United States Supreme Court for determining whether a group qualifies as a suspect or quasi-suspect class. In one such case, State v. Limon, supra, 280 Kan. at 275, 122 P.3d 22, the Kansas Supreme Court invalidated, on equal protection grounds, a criminal statute that resulted in punishment for unlawful voluntary sexual conduct between members of the opposite sex that was less harsh than the punishment for the same conduct between members of the same sex.68Id., at 276, 122 P.3d 22. Although ultimately concluding *242 that the statute did not satisfy even rational basis review; id., at 301, 122 P.3d 22; the court first rejected the defendants claim that heightened scrutiny was warranted on the basis of the United States Supreme Courts decisions in Lawrence v. Texas, supra, 539 U.S. at 558, 123 S.Ct. 2472, and Romer v. Evans, supra, 517 U.S. at 620, 116 S.Ct. 1620; see State v. Limon, supra, at 28687, 122 P.3d 22; in which the United States Supreme Court struck down the legislation at issue in those cases as lacking a rational relation to a legitimate state objective.69 See Lawrence v. Texas, supra, at 578, 123 S.Ct. 2472;Romer v. Evans, supra, at 634, 116 S.Ct. 1620. For the reasons set forth in part VI C of this opinion, we disagree that the courts apparent application of the rational basis test in Lawrence and Romer has any bearing on whether gay persons constitute a quasi-suspect class. In a second case, Hernandez v. Robles, supra, 7 N.Y.3d at 361, 365, 821 N.Y.S.2d 770, 855 N.E.2d 1, the New York Court of Appeals rejected an equal protection challenge to the states prohibition against same sex marriage under the New York state constitution. In so doing, the court declined to decide whether, for purposes other than marriage, gay persons comprise a suspect or quasi-suspect class. See **471id., at 364, 821 N.Y.S.2d 770, 855
N.E.2d 1. Instead, the court concluded that [a] persons preference for the sort of sexual activity that cannot lead to the birth of children is relevant to the [s]tates interest in fostering relationships that will serve children best; id., at 36465, 821 N.Y.S.2d 770, 855 N.E.2d 1; and, therefore, it was appropriate to apply rational basis review to the states ban on same sex marriage. Id. Because we fundamentally disagree with *243 the court in Hernandez that a group seeking suspect or quasi-suspect class status is not entitled to a determination of whether it falls into one of those two categories unless the statutory classification at issue is first deemed to be irrational as applied to the group, however, we find the case unpersuasive. This approach is untenable because it turns the suspectness inquiry on its head: any group that is deemed to be entitled to heightened judicial protection because of past invidious discrimination has the right to have all statutes that discriminate against its members subjected to heightened scrutiny. In contrast to the Hernandez majority, Chief Judge Kaye, in dissent, engaged in the requisite suspectness inquiry, and explainedpersuasively, in our viewwhy statutes that discriminate against gay persons should be subject to heightened judicial scrutiny. Id., at 38789, 821 N.Y.S.2d 770, 855 N.E.2d 1 (Kaye, C.J., dissenting). The final case to conclude that gay persons are not a suspect or quasi-suspect class without performing the four-pronged equal protection analysis is Dean v. District of Columbia, supra, 653 A.2d at 307, in which the District of Columbia Court of Appeals concluded that the applicable statutory scheme barring same sex marriage did not discriminate against gay persons, first, because marriage, by definition, is limited to opposite sex couples; id., at 361 (Terry, J.); and second, because the statute was not motivated by any invidious or discriminatory purpose. See id., at 36263 (Steadman, J., concurring). Because the fact that marriage traditionally has been defined as a union between a man and a woman does not insulate from judicial review a statute that defines marriage in accordance with that definition, and because legislation that has a discriminatory effect may violate equal protection irrespective of the motivation underlying the enactment, we do not find Dean to be persuasive precedent.70 *244 In contrast to the foregoing cases, the Maryland Court of Appeals, in Conaway v. Deane, supra, 401 Md. at 27894, 932 A.2d 571, and the Washington Supreme Court, in Andersen v. King County, supra, 158 Wash.2d at 1924, 138 P.3d 963, did apply the four part test for determining whether a group is entitled to heightened protection in holding that gay persons do not qualify as a suspect or quasi-suspect class under the Maryland and 35
Washington state constitutions, respectively.71 In so concluding, **472 both courts determined that the plaintiffs had failed to demonstrate, first, that homosexuality is a strictly immutable characteristic and, second, that gays and lesbians are politically powerless because of the enactment of state statutes prohibiting sexual orientation discrimination. See Conaway v. Deane, supra, at 286, 29294, 932 A.2d 571;Andersen v. King County, supra, at 20, 21, 138 P.3d 963. For the reasons set forth in part V C and D of this opinion, we disagree with those cases because the distinguishing characteristic does not need to be strictly immutable and because legislation barring discrimination on the basis of sexual orientation is insufficient to establish that gay persons possess political power adequate to counter the pervasive and extreme discrimination to which they historically have been subjected. Although the opinion of the California Supreme Court in In re Marriage Cases, supra, 43 Cal.4th at 757, 76 Cal.Rptr.3d 683, 183 P.3d 384, represents *245 the minority view, we agree fundamentally with the analysis and conclusion of that case that gay persons are entitled to heightened judicial protection as a suspect72 class. Id., at 843, 847, 76 Cal.Rptr.3d 683, 183 P.3d 384. In deciding that issue, the court first observed that the state had conceded that sexual orientation is a characteristic that (1) bears no relation to a persons ability to perform or contribute to society, (2) is associated with pernicious discrimination marked by a history of legal and social disabilities, and (3) is immutable for purposes of the suspectness inquiry. Id., at 84142, 76 Cal.Rptr.3d 683, 183 P.3d 384. Although California case law generally does not require a showing by the group seeking suspect class status that it is politically powerless, the state of California maintained that the court should adopt that requirement as a prerequisite to the recognition of a suspect class and, further, that gay persons did not meet that standard. Id., at 84243, 76 Cal.Rptr.3d 683, 183 P.3d 384. The court rejected the need for a definitive or categorical showing of political powerlessness, observing that such a requirement would be impossible to square with the fact that classifications based on gender and race continue to be treated as suspect. Id., at 843, 76 Cal.Rptr.3d 683, 183 P.3d 384. The court emphasized, rather, that the most important consideration in the determination of a groups entitlement to recognition as a suspect class is whether that group has been subjected to invidious and prejudicial treatment because of a distinguishing characteristic that bears no relation to the individuals ability to perform or contribute to society. Id. As the court explained, courts must look closely at classifications based on that characteristic lest outdated social stereotypes result in invidious laws or practices.
(Emphasis in original; internal quotation *246 marks omitted.) Id. We agree with the California Supreme Court that [t]his rationale clearly applies to statutory classifications that mandate differential treatment on the basis of sexual orientation. Id. For the foregoing reasons, we are not persuaded by the logic or analysis of the **473 courts that have declined to grant suspect or quasi-suspect status to gay persons. We are persuaded, rather, by the California Supreme Court in In re Marriage Cases, supra, 43 Cal.4th at 84143, 76 Cal.Rptr.3d 683, 183 P.3d 384, and by the dissenting opinion of Chief Judge Kaye in Hernandez v. Robles, supra, 7 N.Y.3d at 38789, 821 N.Y.S.2d 770, 855 N.E.2d 1 (Kaye, C.J., dissenting). We reach this conclusion because, in our view, the California court and Chief Judge Kaye have applied the relevant criteria most objectively and with due regard for the manner in which those criteria have been applied to other quasi-suspect and suspect groups. Although the decision of the California Supreme Court and the dissenting opinion of Chief Judge Kaye reflect the minority position, we believe that they nevertheless represent the most persuasive sister state precedent.
E Economic and Sociological Considerations73 We address, finally, the sixth Geisler factor, which requires us to consider the public policy implications of recognizing gay persons as a quasi-suspect class under our state constitution. See State v. Diaz, 226 Conn. 514, 540, 628 A.2d 567 (1993) ([i]n effect, [the sixth Geisler ] factor directs our attention to considerations of public policy). Of course, granting gay persons quasi-suspect class status would not automatically *247 result in the conclusion that same sex couples are constitutionally entitled to marry because, even if gay persons are accorded such status, the state still may be able to establish a sufficiently strong reason to deny them the right to marry. At a minimum, however, recognizing gay persons as a quasi-suspect class would substantially increase the likelihood of a determination that same sex couples are entitled to marry in view of the fact that the state would be required to provide strong justification for denying them that right.74 Accordingly, we consider the public policy ramifications of invalidating the statutory scheme barring same sex marriage. For several reasons, we conclude that this factor militates strongly in favor of the plaintiffs. First, granting same sex couples the right to marry will 36
not alter the substantive nature of the legal institution of marriage; same-sex couples who choose to enter into the relationship with that designation will be subject to the same duties and obligations to each other, to their children, and to third parties that the law currently imposes [on] opposite-sex couples who marry. In re Marriage Cases, supra, 43 Cal.4th at 854, 76 Cal.Rptr.3d 683, 183 P.3d 384. Nor will same sex marriage deprive opposite sex couples of any rights. In other words, limiting marriage to opposite sex couples is not necessary to preserve the rights that those couples now enjoy. In this regard, removing the barrier to same sex marriage is no different than the action taken by the United States Supreme Court in Loving v. Virginia, supra, 388 U.S. at 1, 87 S.Ct. 1817, when it invalidated laws barring **474 marriage between persons of different races. Although it is true that authorizing same sex couples to marry represents a departure from the way marriage historically has been defined, the change would expand the right to marry without any adverse effect on those *248 already free to exercise the right.75 We therefore agree with the Massachusetts Supreme Judicial Court that broadening civil marriage to include same-sex couples ... [will] not disturb the fundamental value of marriage in our society and [r]ecognizing the right of an individual to marry a person of the same sex will not diminish the validity or dignity of opposite-sex marriage, any more than recognizing the right of an individual to marry a person of a different race devalues the marriage of a person who marries someone of her own race. If anything, extending civil marriage to same-sex couples reinforces the importance of marriage to individuals and communities. That same-sex couples are willing to embrace marriages solemn obligations of exclusivity, mutual support, and commitment to one another is a testament to the enduring place of marriage in our laws and in the human spirit.76Goodridge v. Dept. of Public Health, supra, 440 Mass. at 337, 798 N.E.2d 941. Second, although retention of the limitation of marriage to opposite-sex couples is not needed to preserve the rights and benefits of opposite-sex couples, the exclusion of same-sex couples from the designation of marriage works a real and appreciable harm [on] same-sex *249 couples and their children.... [B]ecause of the long and celebrated history of the term marriage and the widespread understanding that this word describes a family relationship unreservedly sanctioned by the community, the statutory provisions that continue to limit access to this designation exclusively to opposite-sex coupleswhile providing only a novel, alternative institution for same-sex coupleslikely will be viewed as an official statement that the family relationship of same-sex couples is not of comparable stature or equal
dignity to the family relationship of opposite-sex couples. In re Marriage Cases, supra, 43 Cal.4th at 855, 76 Cal.Rptr.3d 683, 183 P.3d 384. For this reason, the ban on same sex marriage is likely to have an especially deleterious effect on the children of same sex couples. A primary reason why many same sex couples wish to marry is so that their children can feel secure in knowing that their parents relationships are as valid and as valued as the marital relationships of their friends parents. Excluding same-sex couples from civil marriage will not make children of opposite-sex marriages more secure, but it does prevent children of same-sex couples from enjoying **475 the immeasurable advantages that flow from the assurance of a stable family structure in which the children will be reared, educated, and socialized.77 (Internal quotation *250 marks omitted.) Goodridge v. Dept. of Public Health, supra, 440 Mass. at 335, 798 N.E.2d 941. Third, because of the long history of discrimination that gay persons have faced, there is a high likelihood that the creation of a second, separate legal entity for same sex couples will be viewed as reflecting an official state policy that that entity is inferior to marriage, and that the committed relationships of same sex couples are of a lesser stature than comparable relationships of opposite sex couples. As a consequence, retaining the designation of marriage exclusively for opposite-sex couples and providing only a separate and distinct designation for same-sex couples may well have the effect of perpetuating a more general premise [namely] ... that gay individuals and same-sex couples are in some respects second-class citizens who may, under the law, be treated differently from, and less favorably than, heterosexual individuals or opposite-sex couples. In re Marriage Cases, supra, 43 Cal.4th at 78485, 76 Cal.Rptr.3d 683, 183 P.3d 384; see also Goodridge v. Dept. of Public Health, supra, 440 Mass. at 333, 798 N.E.2d 941 (statutory bar on same sex marriage confers an official stamp of approval on the destructive stereotype that same-sex relationships are inherently unstable and inferior to opposite-sex relationships and are not worthy of respect). Finally, religious autonomy is not threatened by recognizing the right of same sex couples to marry civilly. Religious freedom will not be jeopardized by the marriage of same sex couples because religious organizations that oppose same sex marriage as irreconcilable *251 with their beliefs will not be required to perform same sex marriages or otherwise to condone same sex marriage or relations. Because, however, marriage is a state sanctioned and state regulated institution, religious
[24][25]
37
objections to same sex marriage cannot play a role in our determination of whether constitutional principles of equal protection mandate same sex marriage.
Summary Application of the Geisler factors does not alter our conclusion that gay persons **476 are entitled to recognition as a quasi-suspect class. Persuasive federal and state precedent, albeit representative of the minority view, and considerations of public policy, all support such recognition. Heightened review of our states ban on same sex marriage is therefore appropriate. We now consider that remaining issue.
actions in fact differently grounded. Id., at 53536, 116 S.Ct. 2264; see also Cleburne v. Cleburne Living Center, Inc., supra, 473 U.S. at 472, 105 S.Ct. 3249 (Marshall, J., concurring in the judgment in part and dissenting in part) (The government must establish that the classification is substantially related to important and legitimate objectives ... so that valid and sufficiently weighty policies actually justify the departure from equality. Heightened scrutiny ... seek[s] to assure that the hostility or thoughtlessness with which there is reason to be concerned has not carried the day. By invoking heightened scrutiny, the [c]ourt recognizes, and compels lower courts to recognize, that a group may well be the target of the sort of prejudiced, thoughtless, or stereotyped action that offends principles of equality found in [the equal protection clause]. [When] classifications based on a particular characteristic have done so in the past, and the threat that they may do so remains, heightened scrutiny is appropriate. [Citation omitted.] ). The defendants posit two essential reasons why the legislature has prohibited same sex marriage: (1) to promote uniformity and consistency with the laws of other jurisdictions; and (2) to preserve the traditional definition of marriage as a union between one man and one woman.78**477 The defendants contend that these *253 reasons justify the statutory prohibition against same sex marriage under the heightened standard of review that is applicable to statutes that discriminate against quasi-suspect classes.79 The defendants first proffered justification, that is, uniformity and consistency with other state and federal laws, may be rationally related to the states interest in limiting marriage to opposite sex couples, but it cannot withstand heightened scrutiny. Although the defendants maintain that this reason is sufficient to satisfy their demanding burden, they have identified no precedent in support of their claim. Indeed, beyond the mere assertion that uniformity and consistency with the laws of other jurisdictions represent a truly important governmental *254 interest, the defendants have offered no reason why that is so, and we know of none. In the absence of such a showing, the defendants cannot prevail on their claim that the states interest in defining marriage as most other jurisdictions do is sufficiently compelling to justify the discriminatory effect that that definition has on gay persons. It is abundantly clear that preserving the institution of marriage as a union between a man and a woman is the overriding reason why same sex couples have been barred from marrying in this state.80 We therefore must determine whether this reason alone is sufficient to justify the 38
VII
APPLICATION OF THE HEIGHTENED SCRUTINY STANDARD

[26][27][28]
The test for determining whether the reasons given by the state in defense of the statutory classification at issue are sufficiently strong to satisfy heightened judicial scrutiny is settled. Focusing on the differential treatment or denial of opportunity for which relief is sought, the reviewing court must determine whether the proffered justification is exceedingly persuasive. The burden of justification is demanding and it rests entirely on the [s]tate.... The [s]tate must show at least that the [challenged] classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives.... The justification must be genuine, not hypothesized or invented post hoc in response to [the] litigation. And it must not rely on *252 overbroad generalizations about the different talents, capacities, or preferences of [the groups being classified]. (Citations omitted; internal quotation marks omitted.) United States v. Virginia, supra, 518 U.S. at 53233, 116 S.Ct. 2264. Thus, [i]n cases of this genre, [United States Supreme Court] precedent instructs that benign justifications proffered in defense of categorical exclusions will not be accepted automatically; a tenable justification must describe actual state purposes, not rationalizations for
statutory ban on same sex marriage. Before doing so, however, we note that the defendants expressly have disavowed **478 any claim that the legislative decision to create a separate legal framework for committed same sex couples was motivated by the belief that the preservation of marriage as a heterosexual institution is in the best interests of children, or that prohibiting same sex couples from marrying promotes responsible heterosexual procreation, two reasons often relied on by states in defending statutory provisions barring same sex marriage against claims that those provisions do not pass even rational basis review. See, e.g., Hernandez v. Robles, supra, 7 N.Y.3d at 35960, 821 N.Y.S.2d 770, 855 N.E.2d 1.*255 In the present case, the defendants sole contention is that the legislature has a compelling interest in retaining the term marriage to describe the legal union of a man and woman because that is the definition of marriage that has always existed in Connecticut ... and continues to represent the common understanding of marriage in almost all states in the country. The defendants acknowledge that many legislators hold strong personal beliefs ... about the fundamental nature of marriage as being between a man and a woman, and that no measure providing equal rights for same sex couples would have passed the legislature unless it expressly defined marriage in those terms. Although we acknowledge that many legislators and many of their constituents hold strong personal convictions with respect to preserving the traditional concept of marriage as a heterosexual institution, such beliefs, no matter how deeply held, do not constitute the exceedingly persuasive justification required to sustain a statute that discriminates on the basis of a quasi-suspect classification. That civil marriage has traditionally excluded same-sex couplesi.e., that the historic and cultural understanding of marriage has been between a man and a womancannot in itself provide a [sufficient] basis for the challenged exclusion. To say that the discrimination is traditional is to say only that the discrimination has existed for a long time. A classification, however, cannot be maintained merely for its own sake [Romer v. Evans, supra, 517 U.S. at 635, 116 S.Ct. 1620]. Instead, the classification ( [that is], the exclusion of gay [persons] from civil marriage) must advance a state interest that is separate from the classification itself [see id., at 633, 635, 116 S.Ct. 1620]. Because the tradition of excluding gay [persons] from civil marriage is no different from the classification itself, the exclusion cannot be justified on the basis of history. Indeed, the justification of tradition does not explain the classification; it merely *256 repeats it. Simply put, a history or tradition of discriminationno matter how
entrencheddoes not make the discrimination constitutional.... (Citation omitted.) Hernandez v. Robles, supra, 7 N.Y.3d at 395, 821 N.Y.S.2d 770, 855 N.E.2d 1 (Kaye, C.J., dissenting); cf. Goodridge v. Dept. of Public Health, supra, 440 Mass. at 348, 798 N.E.2d 941 (Greaney, J., concurring) ([t]o define the institution of marriage by the characteristics of those to whom it always has been accessible, in order to justify the exclusion of those to whom it never has been accessible, is conclusory and bypasses the core question [that the court has been] asked to decide). Indeed, the fact that same-sex couples have traditionally been prohibited from marrying is the reason [the action challenging the ban on same sex marriage] was commenced; it cannot be converted into the dispositive reason it cannot succeed. In re Marriage Cases, supra, 49 Cal.Rptr.3d at 750 (Kline, J., concurring and dissenting).
[29]
Thus, when tradition is offered to justify preserving a statutory scheme that has been challenged on equal protection grounds, we must determine whether the **479reasons underlying that tradition are sufficient to satisfy constitutional requirements. Tradition alone never can provide sufficient cause to discriminate against a protected class, for [neither] the length of time a majority [of the populace] has held its convictions [nor] the passions with which it defends them can withdraw legislation from [the] [c]ourts scrutiny. Bowers v. Hardwick, supra, 478 U.S. at 210, 106 S.Ct. 2841 (Blackmun, J., dissenting).
Furthermore, discrimination against one group also cannot be justified merely because the legislature prefers another group. See Metropolitan Life Ins. Co. v. Ward, 470 U.S. 869, 882 n. 10, 105 S.Ct. 1676, 84 L.Ed.2d 751 (1985); see also Hernandez v. Robles, supra, 7 N.Y.3d at 394, 821 N.Y.S.2d 770, 855 N.E.2d 1 (Kaye, C.J., dissenting) ([t]he government cannot legitimately justify discrimination against one group of persons as a mere desire to preference another *257 group). Without sound justification for denying same sex couples the right to marry, it therefore may be true, as Justice Scalia has asserted, that preserving the traditional institution of marriage is just a kinder way of describing the [s]tates moral disapproval of same-sex couples. Lawrence v. Texas, supra, 539 U.S. at 601, 123 S.Ct. 2472 (Scalia, J., dissenting). Moral disapproval alone, however, is insufficient reason to benefit one group and not another because statutory classifications cannot be drawn for the purpose of disadvantaging the group burdened by the law. Romer v. Evans, supra, 517 U.S. at 633, 116 S.Ct. 1620. Thus, just as a bare ... desire to harm a politically unpopular group is not a legitimate basis for a statutory classification; (internal quotation marks omitted)
[30]
39
Cleburne v. Cleburne Living Center, Inc., supra, 473 U.S. at 447, 105 S.Ct. 3249; so, too, is moral disapprobation an inadequate reason for discriminating against a disfavored minority. See Lawrence v. Texas, supra, 539 U.S. at 577, 123 S.Ct. 2472. As the United States Supreme Court has stated more than once, [p]rivate biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect. Palmore v. Sidoti, 466 U.S. 429, 433, 104 S.Ct. 1879, 80 L.Ed.2d 421(1984); accord Cleburne v. Cleburne Living Center, Inc., supra, 473 U.S. at 448, 105 S.Ct. 3249; see also Bowers v. Hardwick, supra, 478 U.S. at 212, 106 S.Ct. 2841 (Blackmun, J., dissenting) (quoting Palmore for same proposition). The defendants nevertheless maintain, in accordance with the teaching of Moore v. Ganim, 233 Conn. 557, 660 A.2d 742 (1995), that this court should be extremely hesitant to choose sides in the policy debate over same sex marriage by enshrin[ing] one policy choice as a matter of constitutional law. Id., at 614, 660 A.2d 742. The defendants contend that the authority to define marriage rests with the people and their elected representatives, and the courts should not appropriate to themselves the power to change that definition. Although we reaffirm the *258 aforementioned principles articulated in Ganim, we do not agree that those principles dictate the outcome of the present case. In Ganim, this court was required to determine whether the state had an affirmative duty under the state constitution to provide subsistence benefits to the poor. Id., at 55859, 660 A.2d 742. In declining to recognize such a duty, we stated, inter alia, that, [a]lthough we do not foreclose the possibility that unenumerated rights may inhere in our state constitution, we are unpersuaded that our constitution obligates the state to provide its citizens with economic subsistence benefits. Id., at 593, 660 A.2d 742. We further stated that [o]ur state and nations continuing attempt **480 to grapple with the complex societal problem of poverty is indicative of the intricacies of the problem. On the one hand ... some legislators believe that the best way to help the indigent is to limit entitlement programs. On the other hand ... other people contend that such policies are misguided, as they will only increase malnutrition, crime, substance abuse and general human suffering.... [W]e are extremely hesitant to choose sides in this policy debate and to enshrine one policy choice as a matter of constitutional law.... Although we are sympathetic to the plight of indigent persons, the [c]onstitution does not provide judicial remedies for every social and economic ill. (Citations omitted; internal quotation marks omitted.) Id., at 614, 660 A.2d 742.
Ganim, however, did not involve an equal protection challenge to the legislative action at issue. In Ganim, rather, we were asked to recognize a new fundamental and unenumerated right under the state constitution, an exercise of authority that quite properly required great restraint lest we create rights without convincing evidence of their existence. See id., at 560, 660 A.2d 742; cf. Washington v. Glucksberg, supra, 521 U.S. at 720, 117 S.Ct. 2258 (courts should be *259 reluctant to expand the concept of substantive due process by extending constitutional protection to an asserted right or liberty interest that heretofore has not been so protected [internal quotation marks omitted] ). The present case requires that we apply well established equal protection principles to determine whether gay persons are a quasi-suspect class. Because gay persons meet all of the criteria, they are entitled to recognition as a sensitive class and, along with such recognition, the right to heightened judicial protection from laws that discriminate against them.81 That recognition itself, however, does not alter the nature of marriage. It is only because the state has not advanced a sufficiently persuasive justification for denying same sex couples the right to marry that the traditional definition of marriage necessarily must be expanded to include such couples. If the defendants were able to demonstrate sufficient cause to deny same sex couples the right to marry, then we would reject the plaintiffs claim and honor the states desire to preserve the institution of marriage as a union between a man and a woman. In the absence of such a showing, however, we cannot refuse to follow settled equal protection jurisprudence merely because doing so will *260 result in a change in the definition of marriage.82 Contrary to the suggestion of **481 the defendants, therefore, we do not exceed our authority by mandating equal treatment for gay persons; in fact, any other action would be an abdication of our responsibility. See, e.g., Sheff v. ONeill, 238 Conn. 1, 13, 678 A.2d 1267 (1996) (it is the role and the duty of the judiciary to determine whether the legislature has fulfilled its affirmative obligations within constitutional principles). In sum, the state has failed to establish adequate reason to justify the statutory ban on same sex marriage. Accordingly, under the equal protection provisions of the state constitution, our statutory scheme governing marriage cannot stand insofar as it bars same sex couples from marrying.
40
VIII
CONCLUSION We recognize, as the Massachusetts Supreme Judicial Court did in Goodridge v. Dept. of Public Health, supra, 440 Mass. at 309, 798 N.E.2d 941, that our decision marks a change in the history of our marriage law. Many people hold deep-seated religious, moral, and ethical convictions that marriage should be limited to the union of one man and one woman, and that homosexual conduct is immoral. Many hold equally strong religious, moral, and ethical convictions that same-sex couples are entitled to be married, and that homosexual persons should be *261 treated no differently than their heterosexual neighbors. Neither view answers the question before [the court]. Our concern is with [our state] [c]onstitution as a charter of governance for every person properly within its reach. Id., at 312, 798 N.E.2d 941. The drafters of our constitution carefully crafted its provisions in general terms, reflecting fundamental principles, knowing that a lasting constitution was needed. Like the framers of the federal constitution, they also knew [that] times can blind us to certain truths, and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the [c]onstitution endures, persons in every generation can invoke its principles in their own search for greater freedom. Lawrence v. Texas, supra, 539 U.S. at 579, 123 S.Ct. 2472. Not long ago, this court made the same essential point, explaining that as we engage over time in the interpretation of our state constitution, we must consider the changing needs and expectations of the citizens of our state. State v. Webb, 238 Conn. 389, 411, 680 A.2d 147 (1996). This admonition applies no less to the guarantee of equal protection embodied in our constitution than to any other state constitutional provision. Even though the right to marry is not enumerated in our constitution, it long has been deemed a basic civil right. E.g., Loving v. Virginia, supra, 388 U.S. at 12, 87 S.Ct. 1817 ([m]arriage is one the basic civil rights of man [internal quotation marks omitted] ); Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942) (same). Although we traditionally have viewed that right as limited to a union between a man and a woman, if we have learned anything from the significant evolution in the prevailing societal views and official policies toward members of minority races and toward women over the past half-century, it is that even the most familiar and generally *262 accepted of social
practices and traditions **482 often mask unfairness and inequality that frequently is not recognized or appreciated by those not directly harmed by those practices or traditions. It is instructive to recall in this regard that the traditional, well-established legal rules and practices of our not-so-distant past (1) barred interracial marriage, (2) upheld the routine exclusion of women from many occupations and official duties, and (3) considered the relegation of racial minorities to separate and assertedly equivalent public facilities and institutions as constitutionally equal treatment. In re Marriage Cases, supra, 43 Cal.4th at 85354, 76 Cal.Rptr.3d 683, 183 P.3d 384. Like these once prevalent views, our conventional understanding of marriage must yield to a more contemporary appreciation of the rights entitled to constitutional protection. Interpreting our state constitutional provisions in accordance with firmly established equal protection principles leads inevitably to the conclusion 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.83 The guarantee of equal protection under the law, and our obligation to uphold that command, forbids us *263 from doing so. In accordance with these state constitutional requirements, same sex couples cannot be denied the freedom to marry.84 The judgment is reversed and the case is remanded with direction to grant the plaintiffs motion for summary judgment and application for injunctive relief.
In this opinion NORCOTT, KATZ and HARPER, Js., concurred. BORDEN, J., with whom VERTEFEUILLE, J., joins, dissenting. The majority concludes that sexual orientation is a quasi-suspect class under our state constitutional provisions guaranteeing equal protection of the laws; article first, 1, and article first, 20, of the constitution of Connecticut, as amended by articles five and twenty-one of the amendments;1 and, based on that conclusion, the **483 majority further concludes that our statute confining marriage to opposite sex couples violates the rights of same sex couples under those constitutional provisions because the statute does not survive the heightened scrutiny required by that 41
constitutional classification.2 In my view, the majoritys decision to grant quasi-suspect class status to sexual orientation is contrary to a sound and prudent interpretation of constitutional standards regarding equal protection *264 of the laws because it unduly minimizes the unique and extraordinary political power of gay persons3 in this state, both generally speaking, and particularly in regard to the question of whether gay marriage should be recognized in this state. I conclude that sexual orientation does not constitute either a suspect or a quasi-suspect class under our state constitution. I also reject the other claims raised under our state constitution, by the plaintiffs, eight same sex couples,4 namely, that our definition of marriage as limited to the union of a man and a woman creates an impermissible gender classification in violation of the plaintiffs right to equal protection and deprives the plaintiffs of their fundamental constitutional right to marry, and conclude, accordingly, that our civil union and marriage statutes survive the constitutionally minimum standard of rational basis review. I therefore dissent and would affirm the trial courts judgment.5
because it is so new, we cannot know with any reasonable degree of certitude whether it is now or soon will be viewed by the citizens of our state as the social equivalent of marriage. In my view, this uncertainty is enough to trigger equal protection analysis. The majority concludes that the civil union statute has relegated the plaintiffs to an inferior status and affords them second class citizenship, that civil unions are perceived to be inferior to marriage, and that, [d]espite the truly laudable effort of the legislature in equalizing the legal rights afforded same sex and opposite sex couples, there is no doubt that civil unions enjoy a lesser status in our society than marriage. Unlike the majority, I do have such a doubt, and I do not think that the plaintiffs have established that proposition as beyond doubt. First, the majoritys determination that civil union status is a second class or inferior status is not, as the majority presents it, an established fact that serves as the starting point of the debate, but an issue of fact that has not yet been resolved in the present case. In fact, in the trial court on the cross motions for summary *266 judgment in the present case, the plaintiffs presented a statement of undisputed facts in support of their motion. In that statement, one of the plaintiffs, Gloria Searson, alleged that [b]eing placed into a separate category, such as civil union, brands [her] relationship [with her civil union spouse, Damaris Navarro] as second class and makes [her] feel substandard. In response, the defendants, certain state and local officials, stated that, solely for purposes of the cross motions, they did not dispute the allegations of that particular paragraph, except that to the extent that the statement [b]eing placed into a separate category, such as civil union, brands [the couples] relationship as second class is asserted as a statement of fact, as opposed to a statement of [Searson] and [Navarros] opinion, that fact is denied. Thus, the procedural posture of this appeal has not yet allowed the fact finder to make the factual determination of whether the civil union statute relegates same sex couples to an inferior status. Thus, the majority has drawn this conclusion without questioning whether the underlying factual assumption is true, without having allowed the parties to present evidence to the trial court in support of their positions, and without having allowed the trial court to make the disputed factual finding. This is particularly significant given the fact that the question of what is perceived or considered to be an inferior status in a given society may not be readily apparent when the subject is a brand new institution, such as civil union. One only needs to open the New York Times on a given Sunday and see civil unions announced 42
SEXUAL ORIENTATION IS NOT A QUASISUSPECT CLASS UNDER ARTICLE FIRST, 1 AND 20, OF THE CONSTITUTION OF CONNECTICUT
Background I begin by noting my agreement with much of what the majority says in its eloquently written opinion. First, *265 I agree with the majority that, contrary to the conclusion of the trial court, the plaintiffs have stated a cognizable constitutional claim.6 I agree that there is enough of a difference between the new institution of civil union and the ancient institution of marriage to permit a constitutional challenge on equal protection grounds. There is no doubt that the institution of marriage carries with it a unique and important **484 history and tradition in our society and state. Although the civil union statute provides all of the benefits and obligations of marriage,
on the same page and in the same style as marriages. It is questionable, at least, that a couple that views their civil union as a sign of second class citizenship would choose to publicize it in the society column of the newspaper, particularly one with a circulation *267 as large as the New York Times.7 And, of course, the factual question of whether the statute relegates same sex couples to a perceived second class status would be readily subject to such proof by way, for example, of public opinion **485 polls on the views of the people of this state.8 Thus, the majority has ignored this essentially factual dispute and made its own factual assertion without evidence. In this connection, I also note that this court is constitutionally prohibited from finding facts. Weil v. Miller, 185 Conn. 495, 502, 441 A.2d 142 (1981) ([t]his court cannot find facts; that function is, according to our constitution, our statute, and our cases, exclusively assigned to the trial courts); see also Conn. Const., amend. XX, 1 (The judicial power of the state shall be vested in a supreme court, an appellate court, a superior court, and such lower courts as the general assembly shall, from time to time, ordain and establish. The powers and jurisdiction of these courts shall be defined by law.). Thus, to the extent that the perceived status of civil unions in this state is factual in nature, the majority has, by making its findings regarding that status, exceeded this courts power. This further undermines the majoritys assertion of second class status attached to civil unions at this point in our history. *268 Moreover, we have had civil unions in our state only since June 30, 2005, when the statutory scheme became effective. See Public Acts 2005, No. 0510, 1. Indeed, we are one of only two states in the nation that have legislatively enacted a civil union statutory scheme that was not mandated by its Supreme Court.9 In addition, both the Vermont and the New Jersey Supreme Courts have held, under their state constitutions, that the legislature must enact, in effect, civil union (but not same sex marriage) statutes to remedy the unconstitutionality of their respective marriage statutes. See Baker v. State, 170 Vt. 194, 744 A.2d 864 (1999); Lewis v. Harris, 188 N.J. 415, 908 A.2d 196 (2006).10 Both **486 Vermont and New Jersey already have done soVermont several years before the enactment of our civil *269 union statute, and New Jersey some time thereafter. Undoubtedly, at this point in time, there have been thousands of civil union ceremonies performed in Connecticut, Vermont and New Jersey, with the result that there are now thousands of families headed by same sex couples joined in civil union, both with and without children. I acknowledge that, because of its name, civil union is a
different status from marriage. In this connection, I also note my agreement with Justice Zarellas observation in part I of his dissenting opinion regarding the nature of that different status, namely, that the institution of civil union is a creature of statute, while marriage is a fundamental civil right protected by the constitution. At this point in our states history, however, and without any appropriate fact-finding on the issue, I am unable to say that it is widely considered to be less than or inferior to marriage, or that it does not bring with it the same social recognition as marriage. It is simply too early to know this with any reasonable measure of certitude.11 I agree with the New Jersey Supreme Court that same-sex couples [are] free to call their relationships by the name they choose.... Lewis v. Harris, supra, 188 N.J. at 461, 908 A.2d 196. Indeed, parties to a civil union are free toand do, in my experiencerefer to their partner as my spouse, or any other appellation that is derived from the vocabulary of marriage. For that matter, I know of no barrier, legal or otherwise, to such parties referring to themselves as married, if they choose to do so. After all, in the eyes of the law, they have all of the rights and obligations as are granted to spouses in a marriage.... General Statutes 46b38nn. Moreover, General Statutes 46b38oo specifically *270 includes civil unions in any use in the General Statutes of the term spouse ... or any other term that denotes the spousal relationship, and also specifically provides that, with certain exceptions, whenever the term marriage is used or defined, a civil union shall be included in such use or definition. In fact, as I have noted, the New York Times treats them the same as marriages for purposes of public announcement in the Sunday edition. In short, the state of social flux in this entire realm is simply too new and too untested for four members of this court to declare as an established social fact that civil unions are of lesser status than marriage in our state. In my view, that has not been established at this stage of our history. Judge Learned Hand has wisely reminded us as judges never to be too sure that we are always right.12 Thus, our experience with civil unions is simply too new and the views of the people of our state about it as a social institution are too much in flux to say with any certitude that the marriage statute must be struck down in order to vindicate the plaintiffs constitutional rights. [J]udicial **487 authority ... is certainly not the only repository of wisdom. When a democracy is in moral flux, courts may not have the best or the final answers. Judicial answers may be wrong. They may be counterproductive even if they are right. Courts do best by proceeding in a way that is catalytic rather than preclusive and that is closely attuned to the fact that courts are participants in the 43
system of democratic deliberation. Baker v. State, supra, 170 Vt. at 228, 744 A.2d 864, quoting C. Sunstein, Foreword: Leaving Things Undecided, 110 Harv. L.Rev. 4, 101 (1996). The majority has disregarded this wise counsel. *271 Consider and compare, for example, the change in social attitudes toward unmarried opposite sex couples living together. It was not long ago that there was a widespread attitude of moral disapproval, and stronger than that on the part of many persons, toward such couples. Yet, it is fair to say that, even independent of or without any positive statutory reinforcement or judicial decisions, now such living arrangements are widely accepted as an ordinary and common part of our social landscape, without social stigma of any kind. It is certainly possible that, but for the majoritys decision in this case, social attitudes toward civil unions would have proven not to have the negative connotations that the majority suggests, either independent of or because such unions have the positive reinforcement of legal approval.13 The point is that at this time it is *272 simply impossible to say what the current prevailing view is, and what it would have turned out to be in the future. I also agree, however, with the majority that the same factors that trigger strict scrutiny under our equal protection clauses trigger intermediate scrutiny, and I agree generally with the majoritys four factor test applicable to trigger those tiers of judicial scrutiny, including the notion that there is no formula for applying the four factor test. Furthermore, applying those four factors to the facts of this case, I agree that gay persons have suffered a deplorable history of invidious discrimination, that their sexual orientation is a distinguishing characteristic that defines them as a discrete group, and that ones **488 sexual orientation has no relation to a persons ability to contribute to society. My fundamental disagreement with the majority focuses, however, on the relevance and application of the fourth factor, namely, the political power of gay persons in this state. The majority discounts this factor as the least important of the factors in the equal protection calculus, and applies it in a way that, in my view, renders it all but irrelevant. To the contrary, I view this factor as equal to the other factors, and think that, under our state constitution, it should be given its due weight. In this connection, I emphasize the limitations on the scope of my analysis. First, we decide this case under the equal protection clauses of our state constitution. When we do so, we ordinarily look to those equal protection
principles articulated by the United States Supreme Court; but we do so as a matter of jurisprudential choice, not as a matter of state constitutional mandate. Second, as I explain in part II of this opinion, in my view those classes specified in article first, 20; see footnote 1 of this dissenting opinion; and only those classes, are entitled to strict scrutiny under our constitution. *273 Thus, the four factor test employed by the majority, and with which I agree generally, applies only to determine whether, as in the present case, an unspecified class is entitled to heightened scrutiny.14 Furthermore, in applying the political power factor to the facts of this case, I conclude that, because one of the fundamental purposes of heightened review scrutiny is, as I explain in part I B of this opinion, the need for judicial intervention into the process of legislative classification to protect discrete and insular minorities who cannot effectively use the political process to protect themselves, the political power of gay persons in this state at this time regarding the right of gay marriage is so strong that the political power factor outweighs the other factors. I turn now, therefore, to the political power factor in the suspect class status analysis.
The History and Significance of the Political Power Factor Some history is necessary in order to understand the significance of the political power factor in equal *274 protection jurisprudence. **489 One of the principal purposes of the four factor test for heightened scrutiny, based on its history, is to provide for the extraordinary remedy of judicial intervention into legislative classification in those instances in which, because of the status of the group affected by the classification, the group has no likely effective means of redressing any discrimination effected by means of the classification through the normal political process. The starting point for evaluating the constitutionality of a legislative classification under equal protection principles has long been the rational basis test, which applies to economic and social regulation. See Metropolitan Casualty Ins. Co. v. Brownell, 294 U.S. 580, 583, 55 S.Ct. 538, 79 L.Ed. 1070 (1935). This test is rooted in the notion that the principal function of the legislature is to draw linesin effect, to make classifications, so that it is 44
not necessary for all legislation to apply to everyone in the first instanceand that, when the legislature does so, the [c]onstitution presumes that even improvident decisions will eventually be rectified by the democratic process. Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 440, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). As the United States Supreme Court has recognized: Classification is the essence of all legislation, and only those classifications which are invidious, arbitrary, or irrational offend the [e]qual [p]rotection [c]lause of the [c]onstitution. Clements v. Fashing, 457 U.S. 957, 967, 102 S.Ct. 2836, 73 L.Ed.2d 508 (1982). Thus, the rational basis test is based on judicial respect for the separation of powers. In 1938, in United States v. Carolene Products Co., 304 U.S. 144, 152, 58 S.Ct. 778, 82 L.Ed. 1234 (1938), *275 the United States Supreme Court upheld a legislative classification created by the federal Filled Milk Act as having a rational basis. In what has now been recognized as its seminal footnote 4; id., at 15253 n. 4, 58 S.Ct. 778; however, the court for the first time suggested the rationale for a more searching level of judicial inquiry for certain cases. One category of such cases was those in which those political processes which can ordinarily be expected to bring about repeal of undesirable legislation were, by the nature of the legislation itself, restrictive of those processes, such as legislation restricting the right to vote, restraining the dissemination of information and interfering with political organizations. Id. The court then broadened its suggestion of the possibility of a more searching level of judicial inquiry to another category of cases. The court stated: Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious ... or national ... or racial minorities ... [or] whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry. (Citations omitted; emphasis added.) Id., at 153 n. 4, 58 S.Ct. 778. Footnote 4 has had such great impact on constitutional law that it is often referred to as the most famous and most celebrated footnote in the Supreme Courts history. See, e.g., D. Hutchinson, Symposium, Discrimination and Inequality: Emerging Issues, Gay Rights for Gay Whites?: Race, Sexual Identity, and Equal Protection Discourse, 85 Cornell L. Rev. 1358, 1379 n. 107 (2000) ( most famous footnote ); P. Linzer, The Carolene Products*276Footnote and the Preferred Position of Individual Rights: Louis Lusky and John Hart Ely vs. Harlan Fiske Stone, 12 Const. 277
Commentary (1995) (same); A. Amar, The **490Bill of Rights and the Fourteenth Amendment, 101 Yale L.J. 1193, 1195 (1992) (same); S. Delchin, comment, United States v. Virginia and Our Evolving Constitution: Playing Peek-a-boo with the Standard of Scrutiny for SexBased Classifications, 47 Case W. Res. L. Rev. 1121, 1154 n. 206 (1997) ( most celebrated footnote ); L. Wardle, A Critical Analysis of Constitutional Claims for SameSex Marriage, 1996 BYU L. Rev. 1, 92 (same); L. Powell, Carolene ProductsRevisited, 82 Colum. L. Rev. 1087 (1982) (first description as most celebrated footnote). Justice Powell, delivering the Harlan Fiske Stone Lecture at Columbia University in New York, observed that Carolene Products Co. was an unremarkable case. L. Powell, supra, 82 Colum. L.Rev. at 1087. Justice Powell explained that footnote 4, which, ironically, was not only relegated to a footnote, but also was dicta, is the sole reason for the continuing fascination with the case. Indeed, Justice Powell noted that the footnote now is recognized as a primary source of strict scrutiny judicial review, which many scholars think ... actually commenced a new era in constitutional law. (Internal quotation marks omitted.) Id., at 1088. Justice Powells explanation of the theory underlying footnote 4 is significant. The fundamental character of our government is democratic. Our constitution assumes that majorities should rule and that the government should be able to govern. Therefore, for the most part, Congress and the state legislatures should be allowed to do as they choose. But there are certain groups that cannot participate effectively in the political process. And the political process therefore cannot be trusted to protect these groups in the way it protects most of us. Consistent with these premises, the theory continues, the Supreme Court has two special missions in our scheme of government: First, to clear away *277 impediments to participation, and ensure that all groups can engage equally in the political process; and Second, to review with heightened scrutiny legislation inimical to discrete and insular minorities who are unable to protect themselves in the legislative process. (Emphasis added.) Id., at 108889. Thus, a principal purpose underlying heightened scrutiny judicial intervention into the realm of legislative judgmentinto its essential process of classificationis directly related to the political power factor. Heightened scrutiny analysis is designed as an extraordinary form of judicial intervention on behalf of those insular minority classes who presumably are unlikely to be able to rectify burdensome or exclusive legislation through the political 45
process. The United States Supreme Courts equal protection case law reflects the importance of footnote 4 of Carolene Products Co., and the close tie between heightened scrutiny analysis and the relative political power of the group being considered for protected class status. See, e.g., San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 105, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973) (Marshall, J., dissenting) (The reasons why such classifications [of race, nationality and alienage] call for close judicial scrutiny are manifold. Certain racial and ethnic groups have frequently been recognized as discrete and insular minorities who are relatively powerless to protect their interests in the political process. See Graham v. Richardson, [403 U.S. 365, 372, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971) ]; cf. United States v. Carolene Products Co., [supra, 304 U.S. at 15253] n. 4 [, 58 S.Ct. 778].); Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 313, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976) ([b]ut even old age **491 does not define a discrete and insular group, United States v. Carolene Products Co., [supra, at 15253 n. 4, 58 S.Ct. 778], in need of extraordinary protection from the majoritarian political process ); *278Plyler v. Doe, 457 U.S. 202, 217 n. 14, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982) ([C]ertain groups ... have historically been relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process. ... [S]ee United States v. Carolene Products Co., [supra, at 15253 n. 4, 58 S.Ct. 778]. [Citations omitted.] ). Although the United States Supreme Court has not always cited the Carolene Products Co. footnote in its formulation of the test for heightened scrutiny, it has applied the political power factor in determining whether legislation affecting a particular class is to be made subject to that scrutiny, and its reasoning and language clearly have echoed the purpose of that factor as explained by Justice Powell. In Cleburne v. Cleburne Living Center, Inc., supra, 473 U.S. at 440, 105 S.Ct. 3249, the court, in determining that the mentally retarded were not a quasi-suspect class, used language and reasoning that established clearly that the political power factor is integral to the determination of whether a class is entitled to suspect or quasi-suspect class status, and, therefore, whether legislation affecting that class should be subjected to heightened or merely rational basis scrutiny. First, in contrasting the rational basis test with the strict scrutiny test, the court noted that statutes that classify on the basis of race, alienage or national origin are deemed to reflect prejudice and antipathya view that those in the burdened class are not as worthy or
deserving as others. For these reasons and because such discrimination is unlikely to be soon rectified by legislative means, these laws are subjected to strict scrutiny.... (Emphasis added.) Id. In summarizing the rational basis test, the court referred to the fact that, where the group involved has characteristics relevant to state interests, courts have been very reluctant, as they should be in our federal system and with our respect for the separation of powers, to closely scrutinize legislative *279 choices.... (Emphasis added.) Id., at 441, 105 S.Ct. 3249. The court then turned to its explanation of why it rejected quasi-suspect classification for the mentally retarded, stating: [T]he distinctive legislative response, both national and state, to the plight of those who are mentally retarded demonstrates not only that they have unique problems, but also that lawmakers have been addressing their difficulties in a manner that belies a continuing antipathy or prejudice and a corresponding need for more intrusive oversight by the judiciary. (Emphasis added.) Id., at 443, 105 S.Ct. 3249. After cataloguing the federal and state legislation demonstrating those legislative responses, the court stated: [T]he legislative response, which could hardly have occurred and survived without public support, negates any claim that the mentally retarded are politically powerless in the sense that they have no ability to attract the attention of the lawmakers. (Emphasis added.) Id., at 445, 105 S.Ct. 3249. One cannot reasonably read these passages without hearing and seeing the important relevance of the political power factor to the three tier analysis; it is integral to the determination of whether a particular class should be elevated to protected status. Contrary to the majority, therefore, I conclude that the political power of the group that seeks heightened scrutiny is a highly relevant consideration in the formulation and application of the four part test **492 to determine whether the legislation at issue is to be subject to that degree of scrutiny. I would, therefore, as a matter of our own state constitutional law, retain the political power factor as an equal consideration in the equal protection calculus because it constitutes one of the fundamental purposes of the entire heightened scrutiny analysis. Finally, as I explain in part I C of this opinion, I agree with the majoritys formulation of how to define that factor and, in applying it to this case, I conclude that, under that definition, the plaintiffs are not entitled *280 to heightened scrutiny. I turn now to the application of that factor in the present case.
C 46
Application of the Political Power Factor to the Right to Gay Marriage in Connecticut I agree with the majority in its formulation of the political power factor: [A] group satisfies the political powerlessness factor if it demonstrates that, because of the pervasive and sustained nature of the discrimination that its members have suffered, there is a risk that that discrimination will not be rectified, sooner rather than later, merely by resort to the political process. See Cleburne v. Cleburne Living Center, Inc., supra, 473 U.S. at 440, 105 S.Ct. 3249. The majority has little difficulty in concluding that gay persons are entitled to heightened constitutional protection despite some recent political progress. Unlike the majority, however, I come to the opposite conclusion: it is very clear to me that the discrimination to which the plaintiffs have been subjected in the past is no longer a factor preventing them from availing themselves of the political process to secure their rights. The most compelling illustration of that development is that the differential treatment of which the plaintiffs complain and seek to remedy by this casethe denial of the right to marrywould be rectified by the political process very soon. It is the unfortunate consequence of the majority opinion that it has short-circuited the democratic process. I first emphasize that this case must be viewed realistically. It is not a case about trying to remedy the history of discrimination against gay persons in this state in general. As I explain in part I C 1 of this opinion, our current legislation effectively has done that, insofar as any lawlegislative or judicialcan do so. Just as the New Jersey Supreme Court recognized in its gay marriage case: The legal battle in this case has been waged *281 over one overarching issuethe right to marry. Lewis v. Harris, supra, 188 N.J. at 433, 908 A.2d 196. Indeed, in light of the extensive gay rights legislation that we have in this state, the principal form of discrimination of which the plaintiffs complain, and what they seek to remedy in this case, is what they call marriage discrimination. The plaintiffs state in their brief: The journey of Connecticut lawmakers in confronting and eliminating aspects of discrimination against lesbian and gay people has been remarkable, but the legislature also has failed with respect to ending marriage discrimination.... While the legislature has addressed different manifestations of discrimination against gay people, it has consistently set aside any issue of marriage discrimination. (Citations omitted; internal quotation marks omitted.) I also emphasize that this factor should be applied in the context of Connecticut today. It is todays Connecticut constitution that we are interpreting and applying; it is todays Connecticut marriage and civil union statutes that
are under consideration; the plaintiffs are residents of Connecticut; and it is the conditions of their lives in this state now and for the foreseeable **493 future that should inform the question of whether they have been denied the equal protection of the laws under the Connecticut constitution by being denied the right to marry. With these emphases in mind, I conclude, for two fundamental reasons, that the political power factor compels the conclusion that the plaintiffs are not denied the equal protection of the laws by our civil union and marriage statutes.
The Legislative Trend in Connecticut The first reason for my conclusion is that the trajectory of Connecticut legislation over the past decades clearly indicates the extraordinarily great and growing political power of the gay community generally and *282 more specifically with respect to the right to marry. That extraordinary trajectory consistently has been in the direction of greater protection and recognition of the rights of gay persons, of their rightful claims to be free from intimidation and discrimination, and, finally and most important, of their claim to the right to marry. Since 1971, when our Penal Code came into effect, noncommercial, consensual sexual relations, whether homosexual or heterosexual, in private between adults has not been the business of the criminal law. Commission to Revise the Criminal Statutes, Penal Code Comments, Conn. Gen.Stat. Ann. (West 2007) 53a65, comment, p. 277. Thus, the preexisting criminal prohibition against sodomy, for example, which targeted male homosexual conduct even when engaged in privately, was eliminated from our criminal laws. In addition, General Statutes 53a181j through 53a181l, which have been in effect since 1972, make intimidation based on sexual orientation criminal.15 Furthermore, since *283 1991, General Statutes 46a81a through 46a81n have prohibited discrimination by both private and state actors based on sexual orientation in a broad range of human endeavors in this state, have required state agencies to take positive **494 steps, including training and education, to remedy any such discrimination and ensure that it does not occur in the future, and have placed these prohibitions and positive obligations within the enforcement authority of the state commission on human rights and opportunities. More specifically, these statutes govern: professional or 47
occupational licensing; General Statutes 46a81b; employment; General Statutes 46a81c; public accommodations; General Statutes 46a81d; housing; General Statutes 46a81e; credit practices; General Statutes 46a81f; employment practices in state agencies; General Statutes 46a81h; services performed by state agencies; General Statutes 46a81i; employment referral and placement services by state agencies; General Statutes 46a81j; state licensing; General Statutes 46a81k; state educational, counseling and vocational guidance programs; General Statutes 46a81m; allocation of state benefits; General Statutes 46a81n; and mandatory annual reporting to the governor by all state agencies of their efforts to effectuate their obligations under these sections. General Statutes 46a81o. Moreover, since 1991, General Statutes 4a60a has required all state contracts to contain a clause that the contracting party will not discriminate or permit discrimination on the grounds of sexual orientation.16 **495*285 Then, in 2005, our state became the first state in the nation to establish by legislation the institution of civil union between persons of the same sex. We are one of only two states in the nation to establish civil unions purely by the political process, without being required to do so by a decision of the states highest court.17 Chapter 815f of our General Statutes, comprising General Statutes 46b38aa through 46b38pp, entitled Civil Union, is our comprehensive civil union statutory scheme. Although retaining the traditional definition of marriage as the union of one man and one woman; General Statutes 46b38nn; the statute provides that persons of the same sex may enter into a civil union. General Statutes 46b38bb (2). The core of that statutory scheme is 46b38nn, entitled Equality of benefits, protections and responsibilities, which provides as follows: Parties to a civil union shall have all the same benefits, protections and responsibilities under law, whether derived from the general statutes, administrative regulations or court rules, policy, common law or any other source of civil law, as are granted to spouses in a marriage, which is defined as the union of one man and one woman. Thus, there is no doubt that, for all purposes under law; General Statutes 46b38nn; parties to a civil union are the same as parties to a marriage. This means that, in the eyes of the law, the two legal relationshipsmarriage and civil unionare the same. There is no concrete, substantive or procedural legal right, privilege, immunity or obligationno benefit, protection or responsibility, in the language of the statutethat differs between the two. The statute goes further. Section 46b38oo provides in relevant part: Whenever in the general statutes the *286 terms spouse, family, immediate family, dependent, next of kin or any other term that denotes
the spousal relationship are used or defined, a party to a civil union shall be included in such use or definition, and wherever in the general statutes ... the term marriage is used or defined, a civil union shall be included in such use or definition. Such a statute could not have been enacted without the very heavy political power of the gay community in 2005, just three years ago. Indeed, the civil union bill passed the House of Representatives by a vote of eighty-five to sixty-three, and passed the Senate by a vote of twenty-six to eight, with bipartisan support in both chambers. See 48 H.R. Proc., Pt. 7, 2005 Sess., p. 2181; 48 S. Proc., Pt. 5, 2005 Sess., p. 1345. Finally, on January 31, 2007, less than two years after the enactment of the civil union statute, the joint committee on the judiciary raised on its own Raised House Bill No. 7395 (2007), entitled An Act Concerning Marriage Equality. Raised House Bill No. 7395 defined marriage as the legal union of two persons, and specifically provided that a person is eligible **496 to marry if such person is [o]f the same or opposite sex as the other party to the marriage.... It specifically would have eliminated the previous statutory declarations that the current public policy of the state of Connecticut is now limited to a marriage between a man and a woman; General Statutes 45a727a (4); and that marriage ... is defined as the union of one man and one woman.General Statutes 46b38nn. Raised House Bill 7395 would do everything that the majority does by constitutional adjudication in this lawsuit. Simultaneously with the introduction of this bill in the judiciary committee, the cochairs of the committee held a news briefing in the state capitol in support of the bill. The public access television network, CTN Connecticut Network, video-recorded that news briefing. See Videotape: Capitol News Briefing with the *287 Chairs of the Judiciary Committee on the Same Sex Marriage Bill (CTN Connecticut Network January 31, 2007) (copy contained in the file of this case with the Supreme Court Clerks Office). That news briefing is significant in showing the extraordinary political support for the proposed legislation. In addition to the cochairs of the committee, in attendance and supporting the bill were numerous other senators and representatives, as well as a deputy comptroller of the state. In addition, other legislators could not attend but asked that their support be publicly acknowledged, and it was. Senator Andrew J. McDonald, the Senate cochair of the committee, noted that, since the enactment of the civil union legislation, there had been no public outcry regarding, and nothing but public acceptance of, civil unions. Id. Some of the remarks at that news briefing by 48
Representative Michael P. Lawlor, the House cochair of the committee, indicate his view that the chances of the gay marriage bill passing were very good. Id. He noted the significant shift in public opinion over the past eleven years, when apparently the issue of gay marriage had begun to be discussed.18 Id. Representative Lawlor stated that he had never seen an issue where public opinion shifted so quickly as this one, and he referred to public opinion polls indicating that the evolution of the public acceptance of gay marriage has been extraordinary over the past few years. Id. He put forth his view that civil union is marriage by another name, and that those couples joined in such a union are married. Id. He stated that he believed that legislative enactment of gay marriage was inevitable, and that even legislators and other public officials who opposed *288 gay marriage were of the same opinion.19 Id. He remarked that he no longer sees public officials speaking out against gay marriage. Id. In his view, the enactment of the civil union legislation had been the big stuff. Id. Representative Lawlor said that times have changedthis law will change with the times. Id. Referring specifically to Governor M. Jodi Rells indication that she would veto the bill if it passed, he stated that governors change their minds as well as legislators, and that there is a political tide in the direction of gay marriage. Id. **497 The public legislative hearings on the bill further show the extraordinary political support for gay marriage through legislation. Speaking in support of the bill were State Comptroller Nancy Wyman; Conn. Joint Standing Committee Hearings, Judiciary Committee, Pt. 17, 2007 Sess., p. 5312; State Treasurer Denise L. Nappier; id., at p. 5339; Secretary of the State Susan Bysiewicz; id., at p. 5395; Senator Edith Prague; id., at p. 4771; Teresa C. Younger, executive director of the Permanent Commission on the Status of Women; id., at p. 5258; and the mayors of three of our largest cities, namely, Dannel P. Malloy, the mayor of Stamford; id., at p. 5343; Eddie A. Perez, the mayor of Hartford; id., at p. 5331; and John DeStefano, Jr., the mayor of New Haven. Id., at p. 5390. In addition to these state and municipal public officials, the bill was supported by the Hartford Court of Common Council; id., at p. 5331; and by two major labor unions in the state, namely, the Connecticut State United Auto Workers CAP Council; id., at p. 5326; and the Connecticut AFLCIO. Id., at p. 5333. In addition, support was registered from the American Civil Liberties Union of Connecticut; *289 id., at p. 5314; the Connecticut Chapter of the National Association of Social Workers; id., at p. 5351; the National Council of Jewish Women; id., at p. 5309; the Connecticut Chapter of the American Academy of Pediatrics; id., at p. 5310; and the Connecticut Womens Education and Legal Fund. Id., at
p. 5328. Furthermore, nine religious leaders of both Christian and Jewish denominations registered their support of the bill. Not one state or local officialelected or appointedand not one labor or professional organization opposed the bill.20 The judiciary committee reported the bill out favorably by a bipartisan vote of twenty-seven to fifteen. See Raised House Bill No. 7395, Judiciary Committee Vote Tally Sheet, April 12, 2007. Subsequently, the cochairs of the judiciary committee decided not to ask for a floor vote on the bill. Their reasons for doing so, however, are extremely significant, because they underscore the extraordinary growing political support for the bill. In a press release announcing their decision, Senator McDonald and Representative Lawlor stated that several vote counts of legislators show the results to be encouragingly close, but that many lawmakers have requested more time before voting for the bill. Press Release, Judiciary Chairman Will Not Seek Vote on Marriage Equality, but Are Encouraged by Increasing Public Support (May 11, 2007) (copy contained in the file of this case with the Supreme Court Clerks Office). Senator McDonald *290 stated that [t]he number of legislators backing this proposal has more than doubled in just the past two years since the bill was last introduced.... Support toward gay marriage equality is growing. We achieved an incredible benchmark this year by passing the bill out of committeea step that many believed we would not be able to accomplish. Id. Representative Lawlor stated: I thought passing the bill out of **498 committee was a possibility. However, following the public hearing, at least five more committee members changed their minds and decided to vote for the bill.... Id. He stated that numerous colleagues on both sides of the aisle had approached him privately and said that while they were personally in favor of same sex marriage, they were hesitant at that time to announce publicly their support for the bill. In due time, they told him, they will be comfortable voting for it as public opinion continues to shift in that direction. Id. Representative Lawlor stated: A significant number of legislators have told us that they are currently in favor of same sex marriage personally, but feel that the state will be ready for it in another year or two. With time, these are the people that will create a majority.... This doesnt surprise me because weve been seeing the same trends happening in the general public, too, with more people gradually coming out in support for same-sex marriage. When [not if] it passes, I hope it is a strong bipartisan vote as was the case with civil unions in 2005. (Emphasis added.) Id. The press release reported that a poll conducted in April, 2007, for the Hartford Courant by the Center for Survey 49
Research and Analysis at the University of Connecticut showed that 49 percent of Connecticut residents favor same sex marriage, while 46 percent oppose it. Id. Senator McDonald stated that [l]ike most people in Connecticut, I think that the governor has demonstrated an increased willingness to be open-minded *291 and she understands that peoples views are changing rapidly on the topic.... Id. Noting the public testimony in favor of the bill by the state comptroller, treasurer and secretary of the state, as well as the three mayors, Senator McDonald stated: An increasing number of elected officials will support marriage equality as time progresses. The trend is undoubtedly moving in that direction. Id. Other legislators were quoted in the press release as being in favor of the bill, acknowledging the rapid shift in public opinion, and expressing their belief that the bill would soon pass. Senator Mary Ann Handley stated: Ive long believed that gay and lesbian couples should have the same rights to marriage that heterosexual couples have and should not be treated differently by the government. Im very encouraged that we have come closer this year to achieving this.... Full equality is definitely in reach. (Emphasis added.) Id. Representative Beth Bye said that the great majority of feedback has been positive, stating: The support shown has been immense ... Ive received numerous e-mails and phone calls of encouragement from my constituents, and even words of support from other legislators who actually oppose the legislation. Its clear to me that opinions are moving in this direction. (Emphasis added.) Id. Representative Toni Walker said that throughout her time in the legislature, she has seen a growing number of legislators switch their positions into the direction of equal marriage rights for same sex couples. Id. Representative Walker stated: Ive seen it for myself. Increasingly, as I sit down and talk with my colleagues, Ive found that they are changing their views toward the direction of marriage equality. (Emphasis added.) Id. It is to blink at political reality to ignore or to dismiss, as the majority does, this extraordinary and unprecedented public record. No other court that considers the *292 political power factor as relevant has been presented with this unique demonstration of political power. Moreover, I note that it is influential elected politiciansnot appointed judgeswho think that gay marriage through legislation is **499 inevitable in Connecticut; who have discussed the issue with their elected colleagues and their constituents; who have read the public opinion polls, and have concluded that gay marriage will be enacted legislatively in Connecticut sooner rather than later; and who determined, in April, 2007, more than one year ago, that within one or two years from then a strong, bipartisan
majority likely would pass a gay marriage bill, and that such a majority, as well as the growing public support for gay marriage in the state, might well persuade the governor to sign the bill. The majority dismisses this extraordinary public record of political support for gay marriage through legislation, and substitutes its uninformed view of the political landscape for that of those who shape it and work in it day after day.21 As a result, the majority joins only two other states, namely, California and Massachusetts, in mandating same sex marriage as a matter of state constitutional law. See In re Marriage Cases, 43 Cal.4th 757, 785, 183 P.3d 384, 76 Cal.Rptr.3d 683 (2008); Goodridge v. Dept. of Public Health, 440 Mass. 309, 344, 798 N.E.2d 941 (2003).22 The other five state courts of final appeal *293 that have considered the issue have concluded to the contrary. See Conaway v. Deane, 401 Md. 219, 312, 932 A.2d 571 (2007); Lewis v. Harris, supra, 188 N.J. at 441, 908 A.2d 196;Hernandez v. Robles, 7 N.Y.3d 338, 36263, 855 N.E.2d 1, 821 N.Y.S.2d 770 (2006); Baker v. State, supra, 170 Vt. at 22425, 744 A.2d 864;Andersen v. King County, 158 Wash.2d 1, 53, 138 P.3d 963 (2006). California is the only one of these states that has what could be called a civil union statute, but in the California constitutional jurisprudence there is no political power factor analysis. See In re Marriage Cases, supra, at 843, 76 Cal.Rptr.3d 683, 183 P.3d 384 ([O]ur cases have not identified a groups current political powerlessness as a necessary prerequisite for treatment as a suspect class.... Instead, our decisions make clear that the most important factors in deciding whether a characteristic should be considered a constitutionally suspect basis for classification are whether the class of persons who exhibit a certain characteristic historically has been subjected to invidious and prejudicial treatment, and whether society now recognizes that the characteristic in question generally bears no relationship to the individuals ability to perform or contribute to society. [Emphasis in original.] ). Although the Massachusetts Supreme Judicial Court stated, in a subsequent proceeding, that a civil union statute would not be sufficient; **500Opinions of the Justices to the Senate, 440 Mass. 1201, 12071208, 802 N.E.2d 565 (2004); it did so by way of an advisory opinion in the absence of an operating civil union statutory scheme. Thus, the majority in the present case stands alone in mandating gay marriage as a matter of state constitutional law in the presence of both a fully functioning civil union statute and a highly relevant23 and revealing public record of extraordinary *294 political support for gay marriage through legislation. I disagree with the cramped notion of political power applied by the majority. The majority, relying on the 50
plurality opinion in Frontiero v. Richardson, 411 U.S. 677, 686 n. 17, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973), asserts that, because there has never been, in Connecticut, an openly gay person elected to statewide office or appointed to our higher courts, gay persons remain apolitical underclass in our state. I agree that election or appointment to high office is one aspect of a groups political power, and that the plurality opinion in Frontiero supports that view. I also believe, however, that the legislative record regarding a particular group is another measure of the groups political power, and that Cleburne supports that view.24 *295 Consequently, the political power of a group is not measured solely by whether one who is a member of the group has been elected or appointed to high office. It is also measured by whether the group has been and is able to secure the passage of important and beneficial legislation on its behalf. One does not measure the political power in this state of organized labor, for example, solely by examining the **501 number of labor union officers or members elected or appointed to high public office; or the political power of the business community solely by examining the number of chief executive officers of major corporations, or the number of officers of the Connecticut Business and Industry Association, so elected or appointed; or the political power of the plaintiffs trial bar solely by examining the number of plaintiffs lawyers, or officers of the Connecticut Trial Lawyers Association, so elected or appointed. On the contrary, one measures the political power of those powerful groups alsoindeed, often primarilyby examining the success they have achieved in enacting legislation that affects their interests. Thus, the legislative history in our state for the past thirty-seven years, beginning with the passage of the Penal Code in 1971, and the public record discussed previously, are proof of the political power of gay persons in this state. Simply put, one cannot read the record of legislation over the past thirty-seven years, including the passage of the civil union legislation in 2005, watch the video of the press briefing following the introduction of the gay marriage bill in early 2007, read the *296 outpouring of political support for that bill and the vote of the judiciary committee in favorably reporting out the bill, and read the press release of the cochairs of the judiciary committee, including the comments of other influential legislators, regarding the bill, and reasonably conclude that gay persons are a political underclass in todays Connecticut. Rather, the only reasonable conclusion from this extraordinary public record is that gay persons as a class now have in Connecticut the political power to enact gay marriage legislationsooner rather than later.
Consequently, I also disagree with the majoritys characterization of our states admirable record of legislation described previously as supporting the conclusion that the subject group is in need of heightened constitutional protection. (Emphasis in original.) In the context of equal protection jurisprudence, this characterization renders a groups political power, as demonstrated by its ability to secure beneficial and protective legislation, essentially irrelevant. Under the majoritys view, if the state has enacted a large body of legislation beneficial to or protective of a particular groupas this state has done with respect to gay personsthat means that the group lacks political power because the legislation is evidence of the groups need for protection. But if the state has not enacted such legislation, that also undoubtedly would mean that the group lacks political power because of that lack of legislation. Indeed, that lack of such legislation is precisely what Chief Judge Kaye cited, in her dissent in Hernandez v. Robles, supra, 7 N.Y.3d at 388, 821 N.Y.S.2d 770, 855 N.E.2d 1, as evidence of a lack of political power of gay persons in New York: The simple fact is that New York has not enacted anything approaching comprehensive statewide domestic partnership protections for same sex couples, much less marriage or even civil unions. *297 In this way, the political power of the group, as demonstrated by the states record of legislation, is rendered irrelevant to the equal protection analysis, because either wayif there is or is not a body of beneficial legislationit supports the view that the group lacks political power. This simply cannot be. It is true that our long history, beginning in 1971, and running through 2005, of enacting legislation protective of the rights of gay persons demonstrates their need for protection. Of course the legislation was aimed at rectifying historic and ongoing **502 wrongs. That is always what civil rights legislation aims to do. But it is a strangely narrow view of such legislation to say that it supports heightened scrutiny because it demonstrates the groups need for protection. This view ignores the fact that the body of legislation obviously has another, equally important aspect: it also clearly demonstrates the political power of the group to bring about beneficial and protective legislation for the precise purpose of rectifying those wrongs. In my view, it is untenable to dismiss, as the majority does, this other important aspect of such legislation. Moreover, were there no record of such legislation in this state, the majority would undoubtedlyand justifiablycite that as evidence of a 51
lack of political power. It is also true, as the majority notes, that, despite the growing political power of both women and AfricanAmericans, neither gender nor race has since been questioned as a class entitled to strict scrutiny. That does not compel the conclusion, however, that political power must be relegated to secondary status in our own state constitutional protection jurisprudence. As I indicate in part II of this opinion, our state constitution already specifically protects both gender and race, among other classes, as entitled to strict scrutiny. Thus, there is no need to consider even the possibility of a reclassification of those two classes under our constitution, *298 and I would not attempt to answer the academic question asked by the majority, namely: why, if the political factor is important, do both gender and race still retain their heightened scrutiny status? No one has ever suggestednor do Ithat, once established, a class entitled to heightened scrutiny protection may subsequently lose that status if its political power grows substantially.25 No court has ever been presented with such a question, and this court certainly never will be. But the answer to that academic question should not be that, when considering whether as a matter of first impression under our own state constitution a new, unspecified group is entitled to heightened scrutiny, we must, as the majority does, nevertheless ignore the root of the entire heightened scrutiny analysis, namely, the need of a burdened class for judicial intervention because of its likely inability to invoke the political process on its own, and blind ourselves to the powerful record of political support for gay marriage in the present *299 case that clearly indicates that the legislature is about to do **503 by legislation what the majority does by adjudication.
has existed in our state from before its founding *300 and throughout the world for millennia. It cannot be disputed that its meaning has always been limited to the union of a man and a woman. And it cannot be disputed that, by mandating same sex marriages, the majority has wrought a significant change in that fundamental social institution. To change the law of marriage by expanding it to include same sex couples is to change the institution that the law reflects. Furthermore, that change is contrary to the public policy of the state as specifically declared by the legislature. The same section of the civil union statutory scheme that grants equal rights of marriage to civil unions specifically defines marriage ... as the union of one man and one woman. General Statutes 46b38nn; see also General Statutes 45a727a (The General Assembly finds that ... [4] It is further found that the current public policy of the state of Connecticut is now limited to a marriage between a man and a woman.). It is an extreme act of judicial power to declare a statute unconstitutional. It should be done with great caution and only when the case for invalidity is established beyond a reasonable doubt. Kinney v. State, 285 Conn. 700, 710, 941 A.2d 907 (2008). That principle applies with even more force when the judicial act of invalidation constitutes the alteration of a fundamental social institution, such as marriage. Fundamental social institutions are the product of a web of history, tradition, custom, **504 culture, widely shared expectations and law. But they are not static. They change. In my view, there are three ways in which such social institutions change, and sometimes the three ways will, to one extent or the other, overlap or combine with each other. The first, and probably the most common, is by a process of gradual change over time, as a societys *301 (or a states) customs, culture and shared expectations change with changed conditions, without the prompting of law, legislative or judicial. An example of this is the change over the past decades in the fundamental social institution of the family. It cannot be disputed that our conception of the family has broadened from what it previously was. That broadened reach is reflected in 45a727a (3), which, in addressing the best interests of a child who is the subject of an adoption, refers to a loving, supportive and stable family, whether that family is a nuclear, extended, split, blended, single parent, adoptive or foster family .... (Emphasis added.) This list of different types of families is not a legislative prescription; it is, instead, a legislative recognition of what has already happened in 52
Marriage Is a Fundamental Social Institution The second reason why I conclude that the political power factor is particularly significant in the context of the present case is that marriage is a fundamental social institution. That being so, if it is to be changed, as the majority acknowledges that its decision does, it is appropriate that it be done by the democratic process, rather than by judicial fiat.26 Marriage is more than a relationship sanctioned by our laws. It is a fundamental and ancient social institution that
society. This court has also recognized the changing nature of the institution of the family. See Michaud v. Wawruck, 209 Conn. 407, 415, 551 A.2d 738 (1988) ([t]raditional models of the nuclear family have come, in recent years, to be replaced by various configurations of parents, stepparents, adoptive parents and grandparents). The second way in which a fundamental social institution may change is by legislation. Thus, the legislature may say, as a matter of public policy, that for a particular purpose or purposes, but not necessarily all purposes, a particular social institution will be recognized in a context in which it may not have been recognized previously. Our civil union statute is a good example of this kind of legislative change of a social institution. The legislature has said that all of the legal rights and obligations of the fundamental social institution of marriage will be extended beyond opposite sex couples to same sex couples, in a new and differently named social institution of civil union. In fact, by virtue of 46b38oo, the legislature specifically has provided that, except for certain purposes,27 [w]herever in the general statutes *302 ... the term marriage is used or defined, a civil union shall be included in such use or definition. Thus, it may fairly be said that, except for the particular specified purposes of the name of the institution and the corresponding statement of the current public policy of the state, the legislature has changed the fundamental institution of marriage to include civil unions. The virtue of these first two ways of changing a fundamental social institution is that each has the general supporteither explicit or implicitof the people. In the first wayby a natural process of social changethe people have voted for the change by their patterns of behavior over time. In the second wayby legislation **505 the people have voted through their duly elected representatives. The third way is by judicial decision. In my view, this is the least desirable method of change of a fundamental social institution because it is effected, not through the peoples behavioral patterns or the votes of their elected representatives, but through the reasoning and analysis of judges, who are accountable to the people only through their oaths and consciences. In this way, a fundamental social institution, which is the product of a states history, tradition, custom, widely shared expectations and law, is changed by the decision of judges, who need not necessarily give deference to that history, tradition, custom and widely shared expectations. This is an extreme action for a court to take. Therefore, the court ought to be very cautious before *303 doing so, and be very sure that it is constitutionally necessary. The
majority opinion fails this test. This is not to say, however, that a court should not, in engaging in the process of constitutional adjudication, change a fundamental social institution. When it is necessary to vindicate constitutional rights, it is the courts obligation to do so, irrespective of the fact that the decision will change a fundamental social institution. See, e.g., Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) (striking down system of legally segregated schools as violative of equal protection of laws, irrespective of fact that such systems could be considered as fundamental social institutions in southern states). The present case, however, is not that kind of case. Instead, this is a case in which the majority has given an answer that is not constitutionally compelled. The public record clearly indicates that the legislature is poised to consider and, in all likelihood, to enact gay marriage legislation. The majority in this case has, unfortunately, unnecessarily short-circuited this socially exemplaryand, in my view, superiormethod of changing the nature of the fundamental institution of marriage in this state. We cannot escape the reality that the shared societal meaning of marriagepassed down through the common law into our statutory lawhas always been the union of a man and a woman. To alter that meaning would render a profound change in the public consciousness of a social institution of ancient origin. When such change is not compelled by a constitutional imperative, it must come about through civil dialogue and reasoned discourse, and the considered judgment of the people in whom we place ultimate trust in our republican form of government. Whether an issue with such far-reaching social implications as how to define *304 marriage falls within the judicial or the democratic realm, to many, is debatable. [The majority of this court] think[s] that this [c]ourt should settle the matter, insulating it from public discussion and the political process. Nevertheless, a court must discern not only the limits of its own authority, but also when to exercise forbearance, recognizing that the legitimacy of its decisions rests on reason, not power. We [should] not short-circuit the democratic process from running its course. Lewis v. Harris, supra, 188 N.J. at 46061, 908 A.2d 196.
II
53
SEXUAL ORIENTATION IS NOT A SUSPECT CLASS UNDER ARTICLE FIRST, 1 AND 20, OF THE CONSTITUTION OF CONNECTICUT For all of the reasons that I have explained in part I of this dissenting opinion, **506 I also conclude that sexual orientation is not a suspect class under article first, 1, and article first, 20, of the constitution of Connecticut, as amended by articles five and twenty-one of the amendments. Put another way, if it is not a quasi-suspect class, a fortiori it is not a suspect class. There is, however, another, more fundamental reason why sexual orientation is not a suspect class under our state constitution, and that reason is rooted in the language and history of the constitution itself. Article first, 20, of the constitution of Connecticut already explicitly affords the equal protection of the law to eight specific characteristicsnamely, religion, race, color, ancestry, national origin, sex or physical or mental disability. We consistently have held that any of these enumerated classes invokes strict scrutiny analysis. See Daly v. DelPonte, 225 Conn. 499, 51215, 624 A.2d 876 (1993). Furthermore, this list of specifically protected classes has grown over time, by virtue of the democratic process of constitutional amendment. As originally adopted in the 1965 constitution, the list was *305 limited to religion, race, color, ancestry and national origin. See Conn. Const. (1965), art. I, 20. In 1974, the constitution was amended to include sex; see Conn. Const., amend. V (November 27, 1974); and in 1984, to include physical and mental disability. See Conn. Const., amend. XXI (November 28, 1984). I conclude, from this language and history, that these democratically selected groups are those that command the most demanding form of judicial intervention, namely, strict scrutiny. The constitutional framework embodies a balancing of the necessity of respect for the democratic processincluding the most significant part of that process, namely, amending our constitutionand the need for judicial intervention to protect those who cannot effectively use the political process to protect themselves. The list of specifically protected classes is the peoples answer to the question of which groups are entitled to the most demanding level of judicial oversight. I would, therefore, reserve other groups claims to protection for intermediate scrutiny, rather than the most demanding form of judicial intervention, namely, strict scrutiny. Our caution in Moore v. Ganim, 233 Conn. 557, 597, 660 A.2d 742 (1995), that the list of protected classes in article first, 20, of the constitution of Connecticut is not dispositive, is not inconsistent with this conclusion. First, Moore dealt with a claim of a fundamental obligation to provide subsistence to the indigent; it was
not an equal protection case. Second, we already have recognized intermediate level scrutiny for unenumerated groups, and I would continue that line of jurisprudence. See Carofano v. Bridgeport, 196 Conn. 623, 641, 495 A.2d 1011 (1985). Thus, the fact that a group is not enumerated in article first, 20, would not mean that it had no claim to intermediate scrutiny. In this regard, I agree with the majority. *306 Having concluded that the plaintiffs claim to the right to marry under the equal protection provisions of the state constitution is not subject to either strict or intermediate scrutiny, I next turn to the plaintiffs remaining claims, which the majority did not reach. Those claims are that: (1) the civil union statute creates an impermissible gender based classification in violation of their right to equal protection under article first, 20, of the constitution of Connecticut, as amended by articles five and twenty-one of the amendments; and (2) the states definition of marriage as limited to opposite sex couples violates the plaintiffs fundamental right to marry in violation of their right to due process of law under article first, 8 and 10, and their right to equal protection under article first, 1, of the constitution of Connecticut. I reject both claims.
**507 III
THE STATUTORY DEFINITION OF MARRIAGE DOES NOT DISCRIMINATE ON THE BASIS OF GENDER The plaintiffs claim that the civil union statute, which defines marriage as the union of a man and woman, creates an impermissible, gender based classification in violation of their right to equal protection under article first, 20, of the constitution of Connecticut, as amended by articles five and twenty-one of the amendments.28 Specifically, the plaintiffs claim that the statute *307 discriminates on the basis of gender because it prohibits a man from marrying a man, but allows a woman to do so, and it prohibits a woman from marrying a woman, but allows a man to do so. The state contends, however, that the civil union statute does not create gender based classifications, and instead bars men and women equally from marrying a person of the same sex. I agree with the defendants. Article first, 20, of the constitution of Connecticut, as amended by articles five and twenty-one of the 54
amendments, provides: No person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his or her civil or political rights because of religion, race, color, ancestry, national origin, sex or physical or mental disability. (Emphasis added.) Section 46b38nn provides: Parties to a civil union shall have all the same benefits, protections and responsibilities under law, whether derived from the general statutes, administrative regulations or court rules, policy, common law or any other source of civil law, as are granted to spouses in a marriage, which is defined as the union of one man and one woman. (Emphasis added.) This statute does not differentiate between the genders because both men and women are equally barred from marrying a person of the same sex. Thus, so long as the civil union statute treats both genders equally in prohibiting both from entering a same sex marriage, it does not run afoul of the constitutional provision barring discrimination on the basis of sex. Linguistically, the plaintiffs claim fails. They are not prohibited from marrying because of [their] ... sex.... They are prohibited from marrying because of their sexual orientation. *308 This conclusion is supported by the purpose of the constitutional provision at issue. The pertinent language of the constitutional provision must be understood in light of its purpose. See Cologne v. Westfarms Associates, 192 Conn. 48, 62, 469 A.2d 1201 (1984). The history of this provision makes clear that it was designed, like its federal counterpart, namely, the **508 equal rights amendment that failed ratification by the states, to equalize treatment of the two gendersmale and female. Although worded to include both genders, it was prompted by the need to equalize the treatment of women with that of men before the law. It was not designed to equalize treatment between same sex couples and opposite sex couples, with respect to the right to marry or other rights. There is no evidence that the framers of the resolution that became the constitutional amendment had any such treatment of rights in mind. The state provision was adopted by referendum in 1974, while the proposed equal rights amendment to the federal constitution was circulating among the states for possible ratification. See Conn. Const., amend. V. The legislative history of amendment V makes it clear that the intent of the legislature was to remedy the past unequal treatment of women, as compared to men, in many situations. See, e.g., 15 H.R. Proc., Pt. 2, 1972 Sess., pp. 87273 (Representative David H. Neiditz, describing the types of discriminatory laws to be invalidated by the proposed
amendment, stated: [Laws] to safeguard the health and morals of women, our laws limiting the number of hours which women may work, [restricting] women to certain kinds of employment and requir[ing] employers of women to give them special benefits, such as seats in factories. Instead of protecting women, these laws have served only to hinder this economic advancement, to [channeling] most women into the lowest paying and the least rewarding of jobs.); id., at p. 877 (Representative Francis J. Collins, remarking *309 that purpose of amendment was to eliminate discrimination purely on the basis of sex and for no other reason); 15 S. Proc., Pt. 4, 1972 Sess., p. 1526 (Senator Joseph I. Lieberman, remarking that the amendment was intended to address existing gender inequalities under the law, and the results of that unequal treatment, stated: [M]en and women of equal age having worked an equal period of years, showed tremendous discrepancy between the amount of income actually being enjoyed by men and that being enjoyed by women. Namely, men are making much more money for the same kind of work over [a] similar period of time.); Conn. Joint Standing Committee Hearings, Government Administration and Policy, 1972 Sess., p. 34 (Barbara Lifton, Connecticut State Womens Political Caucus, testifying at the committee hearing in support of the amendment, stated: I will not spend time listing the many laws now on the books which, under the guise of protecting women, really serve to deny them the opportunities for career advancement or financial security now enjoyed only by men.). It is clear from these excerpts of the legislative history that the intent of the legislature in passing the state equal rights amendment was to make it unconstitutional for the state to favor one gender over another. The plaintiffs rely on McLaughlin v. Florida, 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964), and Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967), for the proposition that the mere equal application of a law containing gender classifications does not render the statute valid for equal protection purposes. This reliance is misplaced. McLaughlin and Loving involved similar statutes. The statute at issue in McLaughlin criminalized the cohabitation of a white man and an AfricanAmerican woman, or an AfricanAmerican man and a white woman. McLaughlin v. Florida, supra, 379 U.S. at 18485, 85 S.Ct. 283.*310 The law was part of a statutory scheme that prohibited living in adultery in general and required proof of intercourse as one of its elements. Id., at 185, 85 S.Ct. 283. A separate provision, the one at issue in McLaughlin, barred the mere cohabitation **509 of a white person and a person of AfricanAmerican descent; 55
intercourse was not an element of the offense. Id., at 18687, 85 S.Ct. 283. The statutory scheme declared unconstitutional in Loving prohibited the intermarriage of a white person and a colored person. Loving v. Virginia, supra, 388 U.S. at 4, 87 S.Ct. 1817. In both cases, the court invalidated the statutes at issue, despite the fact that each punished the participants equally, on the basis of its conclusion that each had the purpose of furthering and endorsing the doctrine of white supremacy; id., at 7, 87 S.Ct. 1817; and constituted an invidious official discrimination based on race. McLaughlin v. Florida, supra, at 196, 85 S.Ct. 283. The present case is distinguishable from Loving and McLaughlin. There has been no showing that the states civil union statute was passed with the purpose of discriminating based on gender. The absence of such evidence, or even a credible argument in support of the claim of gender discrimination, is highlighted by the contrast with both Loving and McLaughlin. In both of those cases, despite the fact that the law was applied equally to both races, it was clear which racial group was being favored and which disfavored.
precedent; (4) sister state decisions; (5) the historical approach; and (6) contemporary economic and sociological, or public policy, considerations. Moore v. Ganim, supra, 233 Conn. at 581, 660 A.2d 742.30 In the present case, however, I conclude that a full Geisler analysis is not necessary, because in my view the dispositive issue is the scope of the right at issue. There is no doubt that, as I explain in the following discussion, there is a fundamental right to marry under our state constitution. The question is how to define that right for constitutional purposes. The plaintiffs claim that the fundamental right **510 is the right to marry a person of ones choice and, therefore, it should be construed to include a person of the same sex. The state maintains, to the contrary, that the fundamental *312 right is the right to marry as traditionally understood, namely, the right to marry a person of the opposite sex of ones choice and, therefore, it does not include the right to marry someone of the same sex. If the plaintiffs are correct that the fundamental right to marry is defined, for constitutional purposes, broadly enough to include the right to marry a person of ones choice, then they would have a viable claim that it includes the right to marry a person of the same sex. If the state is correct, however, that the fundamental right to marry is not defined that broadly and that it is defined, instead, as the right to marry a person of the opposite sex, then the plaintiffs claim necessarily fails. I conclude that the fundamental right to marry, under our state constitution, is properly defined as the right to marry a person of the opposite sex and, therefore, does not include the right to marry a person of the same sex.31 It is well established that the right to marry is guaranteed by our state constitution. Gould v. Gould, 78 Conn. 242, 244, 61 A. 604 (1905). It is also part of the fundamental right of privacy implicit in the [f]ourteenth [a]mendments [d]ue [p]rocess [c]lause. Zablocki v. Redhail, 434 U.S. 374, 384, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978); Zapata v. Burns, 207 Conn. 496, 506, 542 A.2d 700 (1988). The United States Supreme Court has given wise guidance to the judicial process of defining fundamental rights for constitutional purposes. [W]e ha [ve] always been reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking *313 in this unchartered area are scarce and open-ended.... By extending constitutional protection to an asserted right or liberty interest, we, to a great extent, place the matter outside the arena of public debate and legislative action. We must therefore exercise the 56
IV
THE STATUTORY DEFINITION OF MARRIAGE DOES NOT DEPRIVE THE PLAINTIFFS OF THE FUNDAMENTAL CONSTITUTIONAL RIGHT TO MARRY Finally, I address the plaintiffs claim that the civil union statutes exclusion of same sex couples from marriage violates their right to due process under article *311 first, 8 and 10,29 of the constitution of Connecticut, and their right to equal protection under article first, 1, of the constitution of Connecticut, because it infringes on the fundamental right to marry. I reject this claim. I conclude that the fundamental right to marry under our state constitution is the right to marry someone of the opposite sex and does not include the right to marry someone of the same sex. Ordinarily, in determining whether our state constitution affords a particular fundamental right, we would employ the familiar test articulated in State v. Geisler, 222 Conn. 672, 685, 610 A.2d 1225 (1992). That test focuses on an analysis of six factors, namely: (1) the text of the constitutional provisions at issue; (2) holdings and dicta of this court, and the Appellate Court; (3) federal
utmost care whenever we are asked to break new ground in this field ... lest the liberty protected by the [d]ue [p]rocess [c]lause be subtly transformed into the policy preferences of the [m]embers of this [c]ourt.... Our established method of substantive-due-process analysis has two primary features: First, we have regularly observed that the [d]ue [p]rocess [c]lause specially protects those fundamental rights and liberties which are, objectively, deeply rooted in this [n]ations history and tradition ... and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.... Second, we have required in substantive-due-process cases a careful description of the asserted fundamental liberty interest.... Our [n]ations history, legal traditions, and practices thus provide the crucial guideposts for responsible decisionmaking ... that direct and restrain our exposition of the [d]ue [p]rocess [c]lause. (Citations omitted; internal quotation marks omitted.) Washington v. Glucksberg, 521 U.S. 702, 72021, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997). Our own state precedent is consistent with these principles. In construing the contours of our state constitution, we must exercise our authority with great restraint in pursuit of reaching reasoned and principled **511 results.... We must be convinced, therefore, on the basis of a complete review of the evidence, that the recognition of a constitutional right or duty is warranted. (Citation omitted; internal quotation marks omitted.) Moore v. Ganim, supra, 233 Conn. at 581, 660 A.2d 742. *314 Thus, in defining the scope of the fundamental right to marry under our state constitution, we are cautioned to exercise our authority with great restraint; to be reluctant to recognize new claims to fundamental rights because of the lack of reliable guideposts for responsible decision making; to look to those fundamental rights and liberties that are deeply rooted in our nations history and tradition; to be careful in describing the right at issue; and to exercise the utmost care when asked to break new ground. The overarching reason for this judicial caution is that, by declaring a right as fundamental, we to a large extent place it outside the area of public debate and legislative action. These cautionary principles lead me to conclude that the fundamental right to marry under our state constitution cannot be so broadly defined in its scope to include the right to same sex marriage. First, as I explained previously in this opinion, marriage is a fundamental institution in our state, as well as our nation, and recognizing it to include same sex marriage would be to change its nature. That is a change that should be left to the realm of public debate and legislative action, particularly because, as I also explain in part I of
this opinion, the legislature is poised to consider doing so. Second, to define the fundamental right to marry so broadly as to include the right to marry a person of the same sex would be inconsistent with the notion that we should be careful in describing the right at issue, with the notion that we should exercise our authority with great restraint, and with the notion that we should exercise the utmost care when asked to break new ground. To define it as the plaintiffs suggest would, on the contrary, display a lack of the utmost care in breaking new ground and in defining the right at issue, and would be to substitute a personal policy choice for sound constitutional analysis. *315 Third, same sex marriage cannot reasonably be regarded as deeply rooted in our states history and traditions. We cannot escape the reality that the shared societal meaning of marriagepassed down through the common law into our statutory lawhas always been the union of a man and a woman. Lewis v. Harris, supra, 188 N.J. at 460, 908 A.2d 196. It cannot be disputed that, until recent years when the issue of same sex marriage has been presented to both our legislature and our courts, the notion of marriage was uniformly understood as the union of a man and a woman. Thus, to declare that the fundamental right to marry under our state constitution is defined so broadly as to include same sex marriage would be counter to that history and tradition. The plaintiffs rely on Loving v. Virginia, supra, 388 U.S. at 2, 87 S.Ct. 1817, in which the court concluded that Virginias antimiscegenation laws violated the right to equal protection, for the proposition that the fundamental right to marry is broadly defined. That reliance is misplaced. Although the court in Loving referred to the right to marry in general terms, it is clear that it contemplated the traditional notion of marriage as between a man and woman. The court stated: Marriage is one of the basic civil rights of man, fundamental to our very existence and survival. (Emphasis added; internal quotation marks omitted.) Id., at 12, 87 S.Ct. 1817. Thus, its reference to marriage as fundamental to our survival must **512 be taken as a reference to marriage as linked to procreation. The court made a similar connection in one of the primary decisions on which it relied in Loving. In Skinner v. Oklahoma, 316 U.S. 535, 536, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942), the court concluded that a state law that had provided for the sterilization of persons convicted of two or more felonies involving moral turpitude unconstitutionally infringed upon the fundamental right to procreation. The court emphasized that the issue implicated a basic liberty; id., at 541, 62 S.Ct. 1110; 57
and in *316 the course of its discussion of the importance of the right of procreation, the court stated: Marriage and procreation are fundamental to the very existence and survival of the race. (Emphasis added.) Id. The plaintiffs also claim that the courts decision in Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), conclusively severed any link between marriage and procreation. That claim relies on an incorrect reading of Griswold. Although Griswold relied on the nature of the marital relationship in arriving at its conclusion that the state statute at issue, proscribing the use of contraceptives, was unconstitutional, the courts primary concern in that decision was the right to marital privacy, not the right to marry. Id., at 48586, 85 S.Ct. 1678. This link between marriage and procreation was not severed simply because the court recognized that the state cannot compel a married couple to have children. Instead, the court recognized that married couples have a fundamental right to privacy in deciding whether to procreate. Recognizing that married couples have such a choice, however, does not alter the fact that the fundamental nature of the right to marry, for constitutional purposes, always has been linked to its procreative aspect. Similarly, the plaintiffs reliance on Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), also for the proposition that the link between marriage and procreation has been severed, is unpersuasive. In Turner, the Supreme Court invalidated a prison regulation that required inmates to seek the permission of the superintendent of the prison in order to get married, and authorized the granting of that permission only when there were compelling reasons for doing so. Id., at 82, 107 S.Ct. 2254. The court struck down the regulation because it did not pass rational basis scrutiny, the applicable level of review of a prison regulation that impinges on prisoners constitutional rights. Id., at 8991, 107 S.Ct. 2254. The plaintiffs *317 claim that the courts decision, in light of the fact that, as the plaintiffs claim, prisoners had no expectation of the possibility of procreating, demonstrates that the link between marriage and procreation had been severed. On the contrary, the reasoning of Turner provides further support for the conclusion that one of the primary reasons for the status of marriage as a fundamental right is its implicit link to procreation. Specifically, in striking down the regulation, the court noted particularly that most inmates eventually will be released by parole or commutation, and therefore most inmate marriages are formed in the expectation that they ultimately will be fully consummated. Id., at 96, 107 S.Ct. 2254.
The plaintiffs also rely on Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), in support of their claim that the right to marry includes the right to marry a person of the same sex. In overruling Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986), and declaring unconstitutional in **513 violation of federal due process a state statute criminalizing private homosexual conduct between consenting adults; Lawrence v. Texas, supra, at 578, 123 S.Ct. 2472;Lawrence represented a significant development in the courts thinking about sexual orientation. That development, however, is not as radical as the plaintiffs make it out to be. The court, in fact, was careful to craft its decision very narrowly, noting that the case did not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. (Emphasis added.) Id. In so limiting the scope of its decision, the court in Lawrence implicitly recognized that it is one thing to conclude that criminalizing private, consensual homosexual conduct between adults violates due process; it is entirely another matter to conclude that the constitution requires the redefinition of the institution of marriage to include same sex couples.Id., at 567, 123 S.Ct. 2472. *318 The plaintiffs also rely on Lawrence in urging this court to eschew the caution of Glucksberg to provide a careful description of the asserted fundamental liberty interest; (internal quotation marks omitted) Washington v. Glucksberg, supra, 521 U.S. at 721, 117 S.Ct. 2258; and define the right at issue in the present case more broadly, as the right to marry a person of ones choice, rather than as the right to marry a person of the same sex. In Lawrence, the court concluded that it had framed the fundamental right at issue too narrowly in Bowers, as the right [of] homosexuals to engage in sodomy.... (Internal quotation marks omitted.) Lawrence v. Texas, supra, 539 U.S. at 566, 123 S.Ct. 2472. The court in Lawrence defined the right more broadly, stating that the right involved more than sexual conduct. Although the statutes at issue purported merely to prohibit certain sexual conduct, the court observed, [t]heir penalties and purposes ... have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. The statutes ... seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals. Id., at 567, 123 S.Ct. 2472. In perhaps the most succinct statement of the right at issue, the court stated that the case involved the right of adult persons in deciding how to conduct their private lives in matters pertaining to sex. Id., at 572, 123 S.Ct. 2472.
58
The plaintiffs argue that the Supreme Courts repudiation in Lawrence of the narrow definition of the right at issue in Bowers requires the conclusion that the right at issue in the present case also must be defined broadly. That argument ignores the significant context of Lawrence as opposed to the present case. In tracing the developments in its case law following Bowers and explaining why those subsequent developments required the overruling of Bowers, the court in *319Lawrence emphasized two principles: the law at issue impermissibly infringed upon the right to privacy; and the law stigmatized homosexuals. Lawrence v. Texas, supra, 539 U.S. at 57375, 123 S.Ct. 2472. Regarding the right to privacy, the court remarked: The ... decision [in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) ] again confirmed that our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. Lawrence v. Texas, supra, at 57374, 123 S.Ct. 2472. Thus, the court characterized the right at issue in Lawrence as a right of privacy and freedom from government intrusion. Next, the court grounded its decision on **514 the stigma that the Texas statute imposed upon homosexuals as a group, stating that [w]hen homosexual conduct is made criminal by the law of the [s]tate, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.... Its continuance as precedent demeans the lives of homosexual persons. Id., at 575, 123 S.Ct. 2472. Connecticuts civil union statute was not enacted, as was the Texas criminal statute, for the purpose of stigmatizing homosexuals. Thus, the two concerns that informed the courts decision in Lawrence, protecting citizens from government intrusion in their right to privacy, and protecting a specific group from stigmatization, are not present in our case. First, the right at issue in the present case is drastically different from that at issue in Lawrence. The plaintiffs do not seek protection from governmental intrusion of their privacy; instead, they seek affirmative action on the part of the governmentthey seek official recognition of the status of a relationship that would require a significant change in a fundamental societal institution. Second, the civil union statute does not stigmatize homosexuals. As I set forth in part I of this *320 dissent, the development of the law in this state dealing with sexual orientation demonstrates that the legislature had no intention, in passing the civil union statute, to encourage discrimination against or to stigmatize homosexuals. On the contrary, that history supports the conclusion that the
legislature has been working toward the eventual passage of a gay marriage bill, and that the civil union statute was an important step in that process.
APPLICATION OF THE RATIONAL BASIS STANDARD Having concluded that Connecticuts statutory definition of marriage does not touch upon either a fundamental right or a suspect [or quasi-suspect] class; (internal quotation marks omitted) Contractors Supply of Waterbury, LLC v. Commissioner of Environmental Protection, 283 Conn. 86, 93, 925 A.2d 1071 (2007); I also conclude that our marriage statutes survive rational basis review. The paradigm of a rational basis upon which challenged legislation may be sustained is that the legislature is not required to solve all aspects of a social problem, or address all aspects of a social issue, at once. It is entitled to take things one step at a time. Id., at 105, 925 A.2d 1071 (the legislature has the freedom to craft legislation to accomplish its purpose in gradual steps). That is precisely the basis on which our marriage and civil union statutes are premised. The legislature has, since 1971, consistently been enacting legislation beneficial to and protective of gay persons. It has been considering the claims of gay persons to secure the right to marry for eleven years, according to Representative Lawlor, who should know. It took a major step, in 2005, by enacting the civil union law, which afforded parties to civil unions all of the rights and obligations of marriage, except the name of the institution. It then had before *321 it a gay marriage bill in 2007, with great political support, on which it deferred action solely to permit public opinion to continue to mount in its favor until, in the opinion of its sponsors, it would pass within a year or two, with even greater political support. It is entirely rational for the legislature to address the issue of gay marriage step-by-step, rather than all at once. I therefore dissent, and would affirm the judgment of the trial court.
VERTEFEUILLE, J., dissenting. I respectfully disagree with the conclusion of the majority 59
that sexual orientation **515 is a quasi-suspect classification for equal protection purposes under our state constitution and that our marriage statute barring same sex marriage therefore is subject to heightened or intermediate scrutiny. I agree, instead, with the dissenting opinion of Justice Borden and join in that opinion. In a highly persuasive opinion, Justice Borden concludes, in pertinent part, that sexual orientation does not constitute either a quasi-suspect or suspect classification under our state constitution, and that our marriage and civil union statutes satisfy the state constitution when analyzed under the traditional rational basis test. I cannot improve upon Justice Bordens analysis, and I therefore write separately simply to emphasize two points. First, [i]t is well established that a validly enacted statute carries with it a strong presumption of constitutionality.... The court will indulge in every presumption in favor of the statutes constitutionality.... Therefore, [w]hen a question of constitutionality is raised, courts must approach it with caution, examine it with care, and sustain the legislation unless its invalidity is clear. (Internal quotation marks omitted.) State v. McKenzieAdams, 281 Conn. 486, 500, 915 A.2d 822,*322 cert. denied, 552 U.S. 888, 128 S.Ct. 248, 169 L.Ed.2d 148(2007). Moreover, because of this strong presumption favoring a statutes constitutionality, those who challenge its constitutionality must sustain the heavy burden of proving its unconstitutionality beyond a reasonable doubt. (Emphasis added; internal quotation marks omitted.) Id. Our jurisprudence thus requires the highest possible standard of proof in order to sustain a challenge to the constitutionality of a statute validly enacted by our legislature. In my view, Justice Bordens compelling opinion respects both of these fundamental, time-honored principles. Accordingly, I respectfully dissent.
marriage is a loving, committed *323 relationship between two adults and that the sole reason that marriage has been limited to one man and one woman is societys moral disapproval of or irrational animus toward gay persons. Indeed, the majority fails, during the entire course of its page opinion, even to identify, much less to discuss, the actual purpose of **516 the marriage laws, even though this is the first, critical step in any equal protection analysis. I conclude, to the contrary, that, because the long-standing, fundamental purpose of our marriage laws is to privilege and regulate procreative conduct, those laws do not classify on the basis of sexual orientation and that persons who wish to enter into a same sex marriage are not similarly situated to persons who wish to enter into a traditional marriage. The ancient definition of marriage as the union of one man and one woman has its basis in biology, not bigotry. If the state no longer has an interest in the regulation of procreation, then that is a decision for the legislature or the people of the state and not this court. Therefore, I conclude that the equal protection provisions of the state constitution are not triggered. I further conclude that there is no fundamental right to same sex marriage. Accordingly, I dissent.
I At the outset, I note that I agree with the majority that the trial court improperly concluded that the plaintiffs4 had failed to demonstrate a legally cognizable or actionable harm because they are entitled to enter into a legal relationship, i.e., a civil union, that confers the same legal rights as marriage. I reach this conclusion, however, for a different reason than the majority. The institution of civil union is purely a creature of statute, subject to change or repeal at the pleasure of the legislature. Marriage, on the other hand, is a fundamental *324 civil right protected by the constitution.5 Although the legislature has the authority to alter the legal incidents of marriage, it presumably could not abolish the institution altogether, and would be required to apply any statutory changes uniformly to all married couples.6 Thus, contrary to the trial courts conclusion, the difference between the two institutions is not merely one of nomenclature but has specific legal consequences for the plaintiffs. Accordingly, I conclude that the plaintiffs have raised a cognizable legal claim.
ZARELLA, J., dissenting. The majority concludes that the marriage laws,1 which define marriage as the union of one man and one woman,2 classify on the basis of sexual orientation, that this classification is subject to intermediate scrutiny under article first, 1 and 20, of the Connecticut constitution, as amended by articles five and twenty-one of the amendments,3 and that, under this heightened level of review, the state has failed to provide sufficient justification for limiting marriage to one man and one woman. The latter conclusion is based primarily on the majoritys unsupported assumptions that the essence of
II 60
I turn, therefore, to the plaintiffs claim under the equal protection provisions of our state constitution. As the majority correctly states, [t]he concept of equal protection [under both the state and federal constitutions] has been traditionally viewed as requiring the uniform treatment of persons standing in the same relation to the governmental action questioned or challenged.... Conversely, the equal protection clause places no restrictions on the states authority to treat dissimilar persons in a dissimilar manner.... Thus, [t]o implicate **517 the equal protection [clause] ... it is necessary that the state statute ... in question, either on its face or in practice, treat persons standing in the *325 same relation to it differently .... [Accordingly], the analytical predicate [of an equal protection claim] is a determination of who are the persons [purporting to be] similarly situated.... The similarly situated inquiry focuses on whether the [plaintiff is] similarly situated to another group for purposes of the challenged government action .... Thus, [t]his initial inquiry is not whether persons are similarly situated for all purposes, but whether they are similarly situated for purposes of the law challenged. (Citations omitted; emphasis added; internal quotation marks omitted.) Part III of the majority opinion; see also Eielson v. Parker, 179 Conn. 552, 566, 427 A.2d 814 (1980) ([T]he constitution does not, of course, prevent the legislature from dealing differently with different classes of people. It means only that classifications must be based on natural and substantial differences, germane to the subject and purpose of the legislation, between those within the class included and those whom it leaves untouched. [Emphasis added; internal quotation marks omitted.] ). Moreover, the equal protection clause is implicated only when a state legislatur[e] select[s] or reaffirm[s] a particular course of action at least in part because of, not merely in spite of, its adverse effects upon an identifiable group .... (Citations omitted; emphasis added; internal quotation marks omitted.) Hunt v. Cromartie, 526 U.S. 541, 558, 119 S.Ct.1545, 143 L.Ed.2d 731 (1999) (Stevens, J., concurring), quoting Personnel Administrator v. Feeney, 442 U.S. 256, 279, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979). It is clear, therefore, that, in performing its equal protection analysis, the court must identify, at the outset, the group that is adversely affected by the challenged legislation and determine whether that group is similarly situated to another, differently treated group with respect to the purpose of the challenged legislation. Without any analysis, the majority simply accepts the plaintiffs assertion that our states marriage laws *326 classify persons on the basis of sexual orientation even though nothing in those laws expressly does so. It then concludes, without considering the fundamental purpose of the marriage laws, that gay persons are similarly
situated to heterosexual persons with respect to those laws because they share the same interest in a committed and loving relationship as heterosexual persons who wish to marry.... Part III of the majority opinion. I cannot agree. Because it is central to a proper equal protection analysis, I begin with the fundamental subject and purpose of our laws limiting marriage to the union of one man and one woman. As many courts have recognized, the primary societal good advanced by this ancient institution is responsible procreation.7 See Citizens for Equal Protection v. Bruning, 455 F.3d 859, 867 (8th Cir.2006); Standhardt v. Superior **518 Court, 206 Ariz. 276, 287, 77 P.3d 451 (App.2003), review denied sub nom. Standhardt v. MCSC, Docket No. CV030422PR, 2004 Ariz. LEXIS 62 (Ariz. May 25, 2004); Morrison v. Sadler, 821 N.E.2d 15, 25 (Ind.App.2005); Conaway v. Deane, 401 Md. 219, 299300, 932 A.2d 571 (2007); Baker v. Nelson, 291 Minn. 310, 312, 191 N.W.2d 185 (1971), appeal dismissed, 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972); Lewis v. Harris, 378 N.J.Super. 168, 185, 875 A.2d 259 (App.Div.2005), affd in part and modified in part, 188 N.J. 415, 908 A.2d 196 (2006); Andersen v. *327 King County, 158 Wash.2d 1, 37, 138 P.3d 963 (2006); see also Goodridge v. Dept. of Public Health, 440 Mass. 309, 381, 798 N.E.2d 941 (2003) (Cordy, J., dissenting); cf. Hernandez v. Robles, 7 N.Y.3d 338, 359, 855 N.E.2d 1, 821 N.Y.S.2d 770 (2006). Paramount among its many important functions, the institution of marriage has systematically provided for the regulation of heterosexual behavior, brought order to the resulting procreation, and ensured a stable family structure in which children will be reared, educated, and socialized. (Internal quotation marks omitted.) Morrison v. Sadler, supra, at 25. The institution of marriage provides the important legal and normative link between heterosexual intercourse and procreation on the one hand and family responsibilities on the other. The partners in a marriage are expected to engage in exclusive sexual relations, with children the probable result and paternity presumed. (Internal quotation marks omitted.) Id., at 26; see also J. Root, Introduction, 1 Root (Conn.) xxvii (178993) (observations on government and laws of Connecticut) ([t]hat one man should be joined to one woman in a constant society of cohabiting together ... is necessary for the propagation of the species, and for the preservation and education of their offspring). It also is clear that the link between traditional marriage and procreation forms the basis of the institutions status as a fundamental civil right under the federal constitution. See Zablocki v. Redhail, 434 U.S. 374, 384, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978) (the right to marry, establish a home and bring up children is a central part of the liberty 61
protected by the [d]ue [p]rocess [c]lause [internal quotation marks omitted] ); id., at 386, 98 S.Ct. 673 (if [the] right to procreate means anything at all, it must imply some right to enter the only relationship in which the [s]tate ... allows sexual relations legally to take place); Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967) ([m]arriage is one *328 of the basic civil rights of man, fundamental to our very existence and survival [internal quotation marks omitted] ); Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942) ([m]arriage and procreation are fundamental to the very existence and survival of the race); see also Dean v. District of Columbia, 653 A.2d 307, 33233 (D.C.1995) (Ferren, J., concurring in part and dissenting in part); Andersen v. King County, supra, 158 Wash.2d at 30, 138 P.3d 963. To remove the procreative link from marriage, which long predates the constitutions of this country and [s]tate ... would, to a certain extent, extract some of the deep ... root[s] that support its elevation to a fundamental right. (Citation omitted; internal quotation marks omitted.) Samuels v. Dept. of Health, 29 A.D.3d 9, 15, 811 N.Y.S.2d 136 (2006). Thus, the United States Supreme Court and many of our sister state courts have recognized that traditional marriage serves two separate but closely related functions, both deriving from the capacity of a couple comprised of one man and one woman to propagate children. First, in order to advance societys interest in the **519 survival of the human race, the institution of marriage honors and privileges the only sexual relationshipthat between one man and one womanthat can result in the birth of a child.8 Second, in order to protect the offspring of that relationship and to ensure that society is not unduly burdened by irresponsible procreation, marriage imposes obligations on the couple to *329 care for each other and for any resulting children. See Standhardt v. Superior Court, supra, 206 Ariz. at 286, 77 P.3d 451 (by legally sanctioning a heterosexual relationship through marriage, thereby imposing both obligations and benefits on the couple and inserting the [s]tate in the relationship, the [s]tate communicates to parents and prospective parents that their long-term, committed relationships are uniquely important as a public concern [emphasis added] ); Lewis v. Harris, supra, 378 N.J.Super. at 197, 875 A.2d 259 (Parrillo, J., concurring) ([p]rocreative heterosexual intercourse is and has been historically through all times and cultures an important feature of [the] privileged status [of marriage], and that characteristic is a fundamental originating reason why the [s]tate privileges marriage). It is obvious to me, therefore, that limiting the institution of marriage to one man and one woman does not create a
classification based on sexual orientation. Rather, the limitation creates a classification based on a couples ability to engage in sexual conduct of a type that may result in the birth of a child. See Morrison v. Sadler, supra, 821 N.E.2d at 25 (legislative classification created by marriage laws is based on a clearly identifiable, inherent characteristic that distinguishes the two classes: the ability or inability to procreate by natural means); Hernandez v. Robles, supra, 7 N.Y.3d at 376, 821 N.Y.S.2d 770, 855 N.E.2d 1 (Graffeo, J., concurring) ([T]he statutory scheme [does not] create a classification based on sexual orientation.... [Rather], the marriage laws create a classification that distinguishes between opposite-sex and same-sex couples....); Andersen v. King County, supra, 158 Wash.2d at 65, 138 P.3d 963 (law limiting marriage to marriage between one man and one woman does not distinguish between persons of heterosexual orientation and homosexual orientation); see also Goodridge v. Dept. of Public Health, supra, 440 Mass. at 380, 798 N.E.2d 941 (Cordy, J., dissenting) ([t]he classification is not drawn between men and *330 women or between heterosexuals and homosexuals, any of whom can obtain a license to marry a member of the opposite sex; rather, it is drawn between same-sex couples and opposite-sex couples). It also is obvious that a couple that is incapable of engaging in the type of sexual conduct that can result in children is not similarly situated to a couple that is capable of engaging in such conduct with respect to legislation that is intended to privilege and regulate that conduct. Cf. Michael M. v. Superior Court, 450 U.S. 464, 469, 101 S.Ct. 1200, 67 L.Ed.2d 437 (1981) (although classifications based on gender are subject to heightened scrutiny, United States Supreme Court has consistently **520 upheld statutes [when] the gender classification is not invidious, but rather realistically reflects the fact that the sexes are not similarly situated in certain circumstances); id., at 471, 101 S.Ct. 1200 (state had sufficiently strong justification to criminalize sex with underage females, but not with underage males, because young men and young women are not similarly situated with respect to the problems and the risks of sexual intercourse).9 I fully agree with the majority that same sex *331 couples and opposite sex couples are similar in many respects. Specifically, I agree that gay individuals are as capable of contributing to society, as desirous and capable of entering into loving and committed relationships with each other and as capable of caring for children as heterosexual persons. For purposes of an equal protection analysis, however, groups that are treated differently by a statute are not similarly situated unless they are in all relevant respects alike. (Emphasis added.) Nordlinger v. Hahn, 505 U.S. 1, 10, 112 S.Ct. 62
2326, 120 L.Ed.2d 1 (1992). The fact that same sex couples cannot engage in sexual conduct of a type that can result in the birth of a child is a critical difference in this context.10 **521*332 In reaching a contrary conclusion, the majority apparently relies on the notion that the disparate impact of the marriage laws on gay persons who wish to enter into marriage creates a classification on the basis of sexual orientation. It is well settled, however, that the constitutional guarantee of equal protection is implicated only when a state legislatur[e] ... selected or reaffirmed a particular course of action at least in part because of, not merely in spite of, its adverse effects [on] an identifiable group.11 (Emphasis added; internal **522*333 quotation marks omitted.) Personnel Administrator v. Feeney, supra, 442 U.S. at 279, 99 S.Ct. 2282; see also Harris v. McRae, 448 U.S. 297, 324 n. 26, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980) (constitutional equal protection principles prohibit only purposeful discrimination ... and when a facially neutral ... statute is challenged on equal protection grounds, it is incumbent [on] the challenger to prove that [the legislature] selected or reaffirmed a particular course of action at least in part because of, not merely in spite of, its adverse effects [on] an identifiable group [citation omitted; internal quotation marks omitted] ); Pasquariello v. Stop & Shop Cos., 281 Conn. 656, 673, 916 A.2d 803 (2007) ([d]isparate impact ... is only a starting point in analyzing an equal protection claim). Even if the existence of a history of societal disapproval of homosexual conduct is assumed, the majority has not pointed, and cannot *334 point, to any evidence that the driving force behind the development of traditional marriage between one man and one woman has been irrational, discriminatory animus toward gay persons.12 Indeed, even the laws criminalizing homosexual conduct were not originally driven by such animus. See, e.g., Lawrence v. Texas, 539 U.S. 558, 568, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003) (early American sodomy laws were not directed at homosexuals as such but instead sought to prohibit nonprocreative sexual activity more generally); id., at 570, 123 S.Ct. 2472 (American laws targeting same-sex couples did not develop until the last third of the [twentieth] century). It is also worth noting that even societies in which homosexual conduct was the norm and was well accepted have not recognized same sex marriage.13 See **523*335 generally M. Nussbaum, Platonic Love and Colorado Law: The Relevance of Ancient Greek Norms to Modern Sexual Controversies, 80 Va. L.Rev. 1515 (1994). The absence of any evidence of intentional discrimination, in and of itself, is fatal to the plaintiffs equal protection claim. See, e.g., Harris v. McRae, supra, at 324 n. 26, 100 S.Ct. 2671.
Having concluded without any basis that the marriage laws classify on the basis of sexual orientation, the majority then concludes that same sex couples are similarly situated to opposite sex couples with respect to the marriage laws because gay persons share the same interest in a committed and loving relationship as heterosexual persons who wish to marry. The majority, however, makes no attempt to explain why the state ever would have had an interest in promoting or regulating committed and loving relationships that have no potential to result in the birth of a child. It simply assumes that loving commitment between two adults is the essence of marriage, even though the essence of marriage is the very question at the heart of this case.14 *336 The majority then compounds this question begging methodology by suggesting that preserving the institution of marriage as a union between a man and a woman is the overriding reason why same sex couples have been barred from marrying in this state.15 In other *337 words, the **524 majority purports to believe that the primary justification for limiting marriage to one man and one woman is that marriage is heterosexual because it just is.... (Internal quotation marks omitted.) Conaway v. Deane, supra, 401 Md. at 427, 932 A.2d 571 (Bell, C.J., dissenting). Thus, the majority simply assumes at the outset of its analysis the answer to the central question in the case and then declines even to address the only argumentthat marriage was intended to privilege and regulate sexual conduct that may result in the birth of a childthat any court ever has found to be persuasive in determining that that answer is incorrect. For the reasons that I have stated, I cannot agree.
III Because I would conclude that the plaintiffs cannot prevail on their equal protection claim, I must address their substantive due process claim under article first, **525*338 8 and 10, of the Connecticut constitution.16 The plaintiffs contend that two consenting, unrelated adults have a fundamental right to marry regardless of their respective sexes. I disagree. I further conclude that there is a rational basis for limiting marriage to one man and one woman.
A I first address the plaintiffs claim that any two
63
consenting, unrelated adults have a fundamental right to marry regardless of their respective sexes. Our substantive due process case law under the state constitution ... clearly establishes that certain fundamental rights are protected. Ramos v. Vernon, 254 Conn. 799, 835 n. 31, 761 A.2d 705 (2000). Under the federal constitution, the due process clause protects those fundamental rights and liberties which are, objectively, deeply rooted in this [n]ations history and tradition ... and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.... Our [n]ations history, legal traditions, and practices thus provide the crucial guideposts for responsible decisionmaking ... that direct and restrain our exposition of the [d]ue [p]rocess [c]lause. (Internal quotation marks omitted.) Hammond v. Commissioner of Correction, 259 Conn. 855, 88889, 792 A.2d 774 (2002). The plaintiffs do not claim that a different test should apply under the state constitution. When state action affects a fundamental right, it is subject to strict scrutiny. E.g., Rayhall v. Akim Co., 263 Conn. 328, 342, 819 A.2d 803 (2003). As I have indicated, the right of one man and one woman to marry has been recognized as a fundamental right under the federal constitution. See Zablocki v. Redhail, supra, 434 U.S. at 384, 98 S.Ct. 673;*339Loving v. Virginia, supra, 388 U.S. at 12, 87 S.Ct. 1817;Skinner v. Oklahoma ex rel. Williamson, supra, 316 U.S. at 541, 62 S.Ct. 1110. As I also have indicated, the link between marriage and procreation forms the basis of that fundamental right. For this reason, and for the reasons cogently set forth in Justice Bordens dissenting opinion, it is clear to me that the fundamental right to marry is limited to couples comprised of one man and one woman.17 There simply is no deeply rooted history, tradition or practice of same sex marriage, or of marriage defined as a loving, committed relationship, in this nation or in this state. Indeed, to the contrary, the relationship between men and women and the procreative potential of that relationship were the defining concerns of marriage long before the social compact that is our state constitution **526 came into existence. The preamble to our state constitution provides in relevant part: The People of Connecticut ... do, in order more effectually to define, secure, and perpetuate the liberties, rights and privileges which they have derived from their ancestors; hereby, after a careful consideration and revision, ordain and establish the ... constitution and form of civil government.18 (Emphasis added.) Thus, the express and *340 fundamental purpose of this social compact is to guarantee the right of the people to preserve their basic institutions, traditions and beliefs, assuming, of course, that they do not intrude on
other constitutionally protected rights in doing so. As I have indicated, I am quite certain that preserving the institution of traditional marriage between one man and one woman does no such thing. Accordingly, although the deeply rooted and rationally based cultural preference for traditional marriage, and the institutions attendant liberties, rights and privileges, may be subject to change in light of new information and experiences, any such change is emphatically not for this court but is quintessentially a matter to be decided by the people through the democratic process.19 The virtue of a democratic system ... is that it readily enables the people, over time, to be persuaded that what they took for granted is not so, *341 and to change their laws accordingly. That system is destroyed if the smug assurances of each age are removed from the democratic process and written into the [c]onstitution. United States v. Virginia, 518 U.S. 515, 567, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996) (Scalia, J., dissenting).
B Having concluded that there is no fundamental right to same sex marriage, I next must determine whether there is a rational basis for the laws limiting marriage to one man and one woman. See, e.g., Ramos v. Vernon, supra, 254 Conn. at 84041, 761 A.2d 705 (rational basis review applies to substantive due process claims that do not implicate fundamental rights). In determining whether the challenged classification **527 is rationally related to a legitimate public interest ... [t]he test ... is whether this court can conceive of a rational basis for sustaining the legislation; we need not have evidence that the legislature actually acted [on] that basis.... Further, the [e]qual [p]rotection [c]lause does not demand for purposes of rational-basis review that a legislature or governing decisionmaker actually articulate at any time the purpose or rationale supporting its classification.... Rational basis review is satisfied [as] long as there is a plausible policy reason for the classification.... [I]t is irrelevant whether the conceivable basis for the challenged distinction actually motivated the legislature.... To succeed, the party challenging the legislation must negative every conceivable basis which might support it.... (Citation omitted; internal quotation marks omitted.) Contractors Supply of Waterbury, LLC v. Commissioner of Environmental Protection, 283 Conn. 86, 93, 925 A.2d 1071 (2007). In my view, the states interests in promoting and regulating procreative conduct are legitimate. Indeed, they are compelling. I further believe that limiting marriage to 64
one man and one woman is rationally related *342 to the advancement of those interests. First, the state rationally could conclude that [t]he power of biological ties means that heterosexual families are most likely to achieve stability and successfully perform the child-rearing function. A. Wax, The Conservatives Dilemma: Traditional Institutions, Social Change, and SameSex Marriage, 42 San Diego L.Rev. 1059, 1077 (2005). Second, and relatedly, the state rationally could conclude that children do best when they are raised by a mother and a father, a belief that finds great support in life experience and common sense.20 See K. Young & P. Nathanson, Marriage la mode: Answering the Advocates of Gay Marriage (2003), available at http://www.marriageinstitute.ca/images/mmode. pdf.21 This *343 belief does not denigrate the parenting abilities of same sex couples but merely recognizes that a high level of individual parenting ability is no substitute for having both a **528 mother and a father. Third, the benefits and social status associated with traditional marriage encourage men and women to enter into a state, namely, long-term, mutually supported cohabitation, that is conducive both to procreation and responsible child rearing on the part of the biological parents.22 I acknowledge that these rationales, although supported by experience and common sense, are fact based and are open to debate. The burden is on the plaintiffs, however, to establish why none of these reasons provides a conceivable basis for the deeply rooted societal preference for families with a mother and a father. The plaintiffs rely on several sociological studies that have concluded that children of same sex parents are *344 as healthy, happy and well adjusted, and fare as well on all measures of development, as their peers. These studies, however, are far from conclusive.23 Moreover, [t]he story of the controversy surrounding out-of-wedlock childbearing ... illustrates the point that knowledge often comes too late. There is a necessary lag between the instigation of a social change and the generation of persuasive evidence on its ultimate effects. A. Wax, supra, 42 San Diego L.Rev. at 1087. Thus, it is entirely reasonable for the state to be cautious about implementing genderless marriage, the long-term effects of which cannot be known beforehand with any degree of certainty. The plaintiffs also contend that procreation has [n]ever been the purpose of marriage. (Emphasis added.) In support of this startling claim, the plaintiffs note that opposite sex couples who choose not to procreate or who are incapable of procreating are not and never have been prohibited from marrying. Even if the institution of marriage is overinclusive, however, [a] [s]tate does not
violate the [e]qual [p]rotection [c]lause merely because the classifications made by its laws are imperfect. If the classification has **529 some reasonable basis, it does not offend the [c]onstitution simply because the classification is not made with mathematical nicety or because in practice it results in some inequality.... The problems of government are practical ones and may justify, if they do not require, rough accommodationsillogical, [though] it may be, and unscientific. (Citation omitted; internal quotation *345 marks omitted.) Dallas v. Stanglin, 490 U.S. 19, 2627, 109 S.Ct. 1591, 104 L.Ed.2d 18 (1989); see also Vance v. Bradley, 440 U.S. 93, 108, 99 S.Ct. 939, 59 L.Ed.2d 171 (1979) ([e]ven if the classification involved ... is to some extent ... overinclusive, and hence the line drawn by [the legislature] imperfect, it is nevertheless the rule that ... perfection is by no means required [internal quotation marks omitted] ). I also would note that married couples who choose not to procreate can change their minds. In addition, until very recently, the nature and causes of infertility were not well understood and it was impossible to predict with certainty whether a marriage that appeared to be barren ultimately would prove to be so. Under such circumstances, the requirement that a married couple consist of one man and one woman was the requirement that the couple be able to procreate.24 In any event, requiring proof of intent and ability to procreate prior toand, presumably, during the course ofmarriage would entangle the state in procedures that are grossly intrusive, ever-changing and counterproductive. Marriages social role does not rest on any ironclad, exceptionless demand that all couples actually achieve the optimum arrangement. Nor does the channeling function require the elimination of all relationships that fall short of the ideal [of procreative marriage]. After all, adhering to an airtight rule [that a *346 couple must be willing and able to procreate in order to marry] would itself entail costs and intrusions. Such adherence would fail to accommodate the untidy, unpredictable nature of male-female relationships and the imperfect state of knowledge that prevents infallible prediction about biological functioning. A. Wax, supra, 42 San Diego L.Rev. at 107879. The plaintiffs further claim that a state policy based on a belief that marriage between one man and one woman promotes responsible procreation is precluded both by the civil union law, General Statutes 46b38aa et seq., and by General Statutes 45a727a (3), which provides that, for purposes of adoption, [t]he best interests of a child are promoted when the child is part of a loving, supportive and stable family, whether that family is a nuclear, extended, split, blended, single parent, adoptive 65
or foster family.... Specifically, the plaintiffs contend that, because the civil union law provides the same state based legal protections and obligations with respect to children for same sex couples as for married couples, and because 45a727a (3) evinces a legislative policy that family configuration is not a relevant factor in determining the best interests of **530 children ... any proffered issue related to the welfare of children must be legally irrelevant as a reason that the state denies marriage to same sex couples. I am not persuaded. I see no reason why the state rationally could not continue to promote the publics vital interest in responsible procreation by limiting marriage to opposite sex couples while enacting a civil union law in recognition of the legitimate interests of same sex couples.25 In other words, the state reasonably could *347 believe that limiting marriage to a man and a woman accomplishes vital social goods, while the institution of civil union promotes the legitimate interests of those who enter into it. Recognition of the latter private interests does not necessarily entail abandonment of the former public interests. With respect to the adoption laws, the legislative history of 45a727a (3) indicates that the statute was intended to address the situation in which a person already sharing parental responsibility for a child [is prevented] from adopting a child even when absolutely everyone involved agrees that such an adoption would be in the best interest of the child. Conn. Joint Standing Committee Hearings, Judiciary, Pt. 9, 2000 Sess., p. 2773, testimony of Reverend Mark Santucci; see also id., at p. 2864, testimony of Representative Patrick Flaherty ([t]he bill makes it possible for a child who has one parent to be adopted by a second person who shares parental responsibilities for that child).26 The state reasonably could recognize that [t]he best interests of a child are promoted when the child is part of a loving, supportive and stable family; General Statutes 45a727a (3); regardless of the sex of the childs statutory and adoptive parents, while rationally concluding that the ideal family consists of both a mother and a father. In other words, if the choice is between one parent and two parents, there is no reason for the state ever to prefer one parent. If the choice is between two same *348 sex parents and two opposite sex parents, however, there are reasons for the state to promote the latter. Indeed, General Statutes 45a727a (4) expressly provides that the current public policy of the state of Connecticut is now limited to a marriage between a man and a woman. The inclusion of this provision, which defines the states policy regarding the best interests of a child, in the adoption statutes clearly indicates that the legislature believes that limiting marriage to one man and one woman is in the best interests of children as a class.27 This **531 conclusion is
further supported by General Statutes 45a727b, which expressly provides that [n]othing in ... section ... 45a727a ... shall be construed to establish or constitute an endorsement of any public policy with respect to marriage, civil union or any other form of relation between unmarried persons.... In addition, General Statutes 45a726a provides in relevant part that [n]othing in th[at] section shall be deemed to require the Commissioner of Children and Families or a child-placing agency to place a child for adoption or in foster care with a prospective adoptive or foster parent or parents who are homosexual or bisexual. The plaintiffs also contend that the state could not rationally conclude that extending marriage to same sex couples would prevent procreation and child rearing by opposite sex couples. I agree with the plaintiffs that it is doubtful whether any state policy could entirely *349 prevent men and women from procreating. As I have indicated, however, the state could rationally conclude that honoring and privileging marriage between one man and one woman as the ideal setting for procreation is conducive both to procreation and to responsible child rearing, and that redefining marriage to be a loving, committed relationship between two adults could have a significant effect on the number of opposite sex couples who choose to procreate and raise children together. See footnote 15 of this opinion. Finally, I address the plaintiffs claim that, even if there once was a link between procreation and marriage, such a link was based on sexual stereotypes and other outdated notions about the nature of family life, and such notions are no longer viable in light of the steady legal, sociological and economic developments since the late nineteenth century.... They contend that [m]arriage is now an institution of legal equality between ... two parties whose respective rights and responsibilities are equal, mutual and reciprocal. The states astonishing insistence on resurrecting legal restrictions that pigeonhole individuals ... on [the basis of] broad generalizations about sex roles flies in the face of rudimentary sex discrimination law. It is undisputed that the role of women in public and economic life has increased dramatically in the last century and that women have achieved an unprecedented degree of equality with men in our nation. That does not mean, however, that the procreative roles of men and women have changed or that there is no distinction between the parenting roles of men and women.28 *350 In any event, even if the plaintiffs were correct that procreation is no longer at the center of the institution of marriage, that would not help them. As I have indicated, 66
the reason that marriage between one man and one woman historically has had a privileged social status and has been considered a constitutionally protected **532 fundamental right has been societys special concern with procreative conduct. If the link between marriage and procreation were destroyed, then the elevated social and constitutional status of marriage in our society also would be destroyed, and marriage would be nothing but a set of statutory rights and obligations, which is exactly what civil union is. In that case, the trial court would have been correct to conclude that the difference between the two institutions was merely a matter of nomenclature. Accordingly, I reject the plaintiffs claim, and the majoritys conclusion, that redefining marriage to include same sex couples takes nothing away from the institution. See part VI E of the majority opinion (redefining marriage would expand the right to marry without any adverse effect on those already free to exercise the right [emphasis in original] ). The redefinition of marriage takes away societys special concern with the institution as one involving the great societal risks and benefits of procreative conduct. The majoritys reliance on Loving v. Virginia, supra, 388 U.S. at 1, 87 S.Ct. 1817, in support of its conclusion to the contrary is entirely misplaced. See part VI E of the majority opinion (recognizing right to same sex marriage [will] not disturb the fundamental value of marriage in our society and ... will not diminish the validity or dignity of opposite-sex marriage ... any more than recognizing the right of an individual to marry a person of a different race devalues the marriage of a person who marries someone of [his or] her own race [internal quotation marks omitted] ), quoting *351Goodridge v. Dept. of Public Health, supra, 440 Mass. at 337, 798 N.E.2d 941. The laws criminalizing miscegenation intruded on the fundamental right to procreate, and the constitutional prohibition against this intrusion recognizes and enhances the special status of procreative conduct. Redefining marriage to include same sex couples has no such purpose or effect.
486, 500, 915 A.2d 822, cert. denied, 552 U.S. 888, 128 S.Ct. 248, 169 L.Ed.2d 148 (2007). Instead of requiring the plaintiffs to meet this heavy burden, the majority bases its opinion on entirely unfounded assumptions about the subject and purpose of our marriage laws, the classification created by them and their discriminatory intent. Not only have the plaintiffs failed to establish these matters beyond a reasonable doubt, they have failed to present any evidence to support the majoritys conclusions. Second, the majority states that [t]his court also has determined that, for purposes of the state constitution, [the] two-tier analysis of the law of equal protection ... that distinguishes only between legislation requiring strict scrutiny, which typically fails to pass constitutional muster, and legislation requiring a rational basis, which typically does pass, is not sufficiently precise to resolve all cases. Legislation that involves rights that may be significant, though not fundamental, or classifications that are sensitive, though not suspect, may *352 demand some form of intermediate review. (Internal quotation marks omitted.) Part III of the majority **533 opinion, quoting Eielson v. Parker, supra, 179 Conn. at 564, 427 A.2d 814. Contrary to this statement, we never have made any such determination. Our statements in Eielson, in Daly v. DelPonte, 225 Conn. 499, 513, 624 A.2d 876 (1993), and in Keogh v. Bridgeport, 187 Conn. 53, 67, 444 A.2d 225 (1982), that the state constitution might recognize intermediate scrutiny were dicta and were unsupported by any analysis of the text of the equal protection provisions of the Connecticut constitution. In Carofano v. Bridgeport, 196 Conn. 623, 495 A.2d 1011 (1985), we assumed without deciding that laws affecting the liberty of a person to live where he chooses while maintaining employment with a municipality were subject to intermediate scrutiny. Id., at 642, 495 A.2d 1011. In light of the significant differences between the equal protection provisions of the state and federal constitutions, I have serious doubts as to whether intermediate scrutiny ever is appropriate under the state constitution. Third, I am troubled by the majoritys analysis under State v. Geisler, 222 Conn. 672, 685, 610 A.2d 1225 (1992). Historically, this court has used the Geisler analysis to determine the scope of a right under the state constitution. I am not aware of, and the majority has not cited, any cases in which we have used Geisler to determine whether the Connecticut constitution recognizes a suspect class that has not been recognized under the federal constitution. Indeed, Geisler was not mentioned in any of the cases to which the majority cites in support of its conclusion that intermediate scrutiny has been applied under the state constitution. 67
IV Although there is no need for me to reach many of the other issues that the majority addresses, I am compelled to state that I am extremely troubled by several aspects of its analysis. First, as Justice Vertefeuille notes in her dissenting opinion, those who challenge the constitutionality of legislation must sustain the heavy burden of proving its unconstitutionality beyond a reasonable doubt. (Emphasis added; internal quotation marks omitted.) State v. McKenzieAdams, 281 Conn.
Moreover, none of the six Geisler factors supports a conclusion that sexual orientation is a quasi-suspect class in this state. With respect to the first Geisler factor, the text of the state constitutional provisions, I am not persuaded by the majoritys analysis for the reasons *353 that I already have stated. The cases that the majority relies on for the proposition that the state constitution contemplates quasi-suspect classifications do not support such a conclusion, and the majority has not squarely addressed the textual differences between the state and federal constitutions. Because the majoritys analysis under Geislers second factor, decisions of this court and the Appellate Court, and the third factor, decisions of the federal courts, are closely intertwined, I address them together. The majority acknowledges that the Appellate Court and virtually all federal courts have concluded that sexual orientation is not a suspect classification but rejects the reasoning of these courts because they relied on the holding of Bowers v. Hardwick, [478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986), overruled by Lawrence v. Texas, supra, 539 U.S. at 558, 123 S.Ct. 2472], in which the United States Supreme Court upheld the constitutionality of a Georgia statute that criminalized homosexual sodomy. These courts have concluded that, because it is constitutionally permissible to criminalize homosexual conduct, a group that is defined by that conduct cannot be a quasi-suspect class. See, e.g., BenShalom v. Marsh, 881 F.2d 454, 46465 (7th Cir.1989), cert. denied sub nom. BenShalom v. Stone, 494 U.S. 1004, 110 S.Ct. 1296, 108 L.Ed.2d 473 (1990); cf. State v. John M., 94 Conn.App. 667, 67884, 894 A.2d 376 (2006), revd on other grounds sub nom. State v. John F.M., 285 Conn. 528, 940 A.2d 755 (2008). The majority notes that Bowers was overruled by Lawrence v. Texas, supra, at 558, 123 S.Ct. 2472, and concludes that, after Lawrence, the social and moral disapprobation that gay persons historically have faced supports their claim that they are entitled to heightened protection under the state constitution. **534 Part VI C of the majority opinion. The majority may be correct on this point, which it already has made in the first part of its analysis applying *354 the federal test for determining suspect classifications, but it is not the point that is under consideration. Under these two prongs of Geisler, the question is whether the courts of this state or federal courts ever have concluded that sexual orientation is a quasi-suspect classification. If the answer to that question is no, but the reasoning of cases in which that classification has been rejected is not persuasive, then it may be that these cases do not weigh against this courts
determination that sexual orientation is a quasi-suspect classification. It cannot be said, however, that the cases support such a determination. Thus, at best, the second and third Geisler factors are neutral. Similarly, with respect to the fourth prong of Geisler, the decisions of our sister states, if the majority is not persuaded by the reasoning of the majority of state courts that have concluded that sexual orientation is not a suspect class, then the factor is neutral, at best. The fact that only a small minority of states agree with the majoritys independent analysis under the federal test cannot be considered as favoring the plaintiffs claim. The majority declines to address the fifth prong of Geisler, the history of our states equal protection provisions, because, according to the majority, [n]either the plaintiffs nor the defendants contend that the history of this states equal protection provisions ... bears materially on the determination of whether [sexual orientation is] a quasi-suspect class[ification]. Footnote 73 of the majority opinion. To the contrary, however, the defendants expressly contend that nothing in Connecticuts unique historical record supports the conclusion that [the equal protection] provisions of the state constitution ... were intended to protect sexual orientation as a suspect classification and that it is not possible to conclude that the framers intended [these provisions] to protect sexual orientation as a suspect *355 classification....29 The plaintiffs do not rebut this contention and point to nothing in the history of our constitution that would support a conclusion that the framers or the people of the state believed that gay persons would receive special protection under the equal protection provisions. Accordingly, I would conclude that this factor weighs in favor of the defendants. **535 With respect to the sixth Geisler factor, economic and sociological considerations, the majority focuses on the effect that denying marriage to same sex couples purportedly has on same sex couples and their children. The question under review, however, is whether the state constitution requires this court to treat sexual orientation as a suspect classification, not the constitutionality of excluding same sex couples from marriage. In my view, this Geisler factor requires this court to examine existing cultural and economic conditions in the state in order to determine whether Connecticut citizenry have expectations that are not adequately protected by the federal constitution. Cf. *356State v. Bernier, 246 Conn. 63, 72, 717 A.2d 652 (1998) ([t]he analysis focuses on whether Connecticut citizenry [are] prepared, because of [their] code of values and [their] notions of custom and civility to [recognize heightened protection under the state 68
constitution] [internal quotation marks omitted] ). The majority has pointed to no specific values [or] ... notions of custom and civility; id.; in this state that would lead to the conclusion that Connecticut citizenry have expectations about laws classifying on the basis of sexual orientation that differ from those shared by the rest of the country, thereby requiring this court to subject the laws to heightened scrutiny. Instead, the majority apparently concludes that it must determine whether barring same sex marriage would have a disparate impact on gay persons because, if so, then sexual orientation must be a suspect classification; otherwise, the state would not be required to provide strong justification for that disparate impact.30 The majority ultimately concludes that, because barring same sex couples from marriage could lead some gay persons to feel like second-class citizens, this prong militates strongly in favor of the [plaintiffs claim].31 Part VI E of the majority opinion. The majority has cited no authority, however, for the novel proposition that the potential negative impact of legislation on a particular group is a factor in determining whether *357 the group constitutes a suspect class.32 Moreover, its reasoning is entirely circular, and, like the reasoning throughout the majority opinion, omits any reference to the actual interest of the citizenry in preserving the institution of traditional marriage despite any disparate impact that it may have on gay persons. Finally, as I have indicated, in the absence of intentional discrimination, a laws disparate impact on a particular group does not implicate equal protection principles. Accordingly, I am distinctly unpersuaded by the majoritys Geisler analysis. Indeed, it is apparent to me that these factors weigh in the defendants favor.
claim that marriage is heterosexual because it just is; (internal quotation marks omitted) Conaway v. Deane, supra, 401 Md. at 427, 932 A.2d 571 (Bell, C.J., dissenting); there are powerful reasons for preserving the institution. In concluding otherwise, the majority deliberately has closed its eyes to those reasons, has failed to engage in a proper analysis under the equal protection provisions of our state constitution and has distorted our state constitutional jurisprudence as set forth in Geisler. Indeed, in my view, the sole basis for the majoritys conclusion that traditional marriage is no longer constitutional is the majoritys a priori, unsubstantiated belief that it just isnt. Thus, the majority has [abused] this courts power to interpret the constitution in order to mandate a vast and unprecedented social experiment; Sheff v. ONeill, 238 Conn. 1, 61, 678 A.2d 1267 (1996) (Borden, J., dissenting); the results *358 of which will be beyond the power of both this court and the people of this state to correct. Accordingly, I reject the majoritys conclusion that limiting marriage to one man and one woman is unconstitutional. If the states interests in promoting and regulating procreation are no longer sufficient to warrant the continuation of traditional marriage, then the decision to terminate that ancient institution is appropriate for the democratically elected legislature. To end an institution that the plaintiffs contend is time honored and special by judicial fiat is a usurpation of the legislative prerogative and a violation of the fundamental right of the people, on which the very existence of our constitution is premised, to define, secure and perpetuate the liberties, rights and privileges which they have derived from their ancestors.... Conn. Const., preamble.
**536 V Contrary to the majoritys purported belief that societys sole justification for preserving traditional marriage between one man and one woman is the tautological Footnotes
* 1 2
Parallel Citations 957 A.2d 407
The listing of justices reflects their seniority status at the time of oral argument. For convenience and economy of language, we hereinafter refer to gay men and lesbians as gay persons. The plaintiffs, each of whom has identified himself or herself as a partner in a long-term, committed, same sex relationship with another plaintiff, are Elizabeth Kerrigan and Joanne Mock, Janet Peck and Carol Conklin, Geraldine Artis and Suzanne Artis, Jeffrey Busch and Stephen Davis, J.E. Martin and Denise Howard, John Anderson and Garrett Stack, Barbara LevineRitterman and Robin LevineRitterman, and Damaris Navarro and Gloria Searson. Several of the couples have been together for more than twenty years, and many of them have raised or are raising children together. Although we recognize each of the plaintiffs as a member of a same sex couple, for purposes of their state constitutional claims, we treat them as individuals seeking the right to
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Kerrigan v. Commissioner of Public Health, 289 Conn. 135 (2008) 957 A.2d 407 marry the same sex partner of their choice.
3
Article first, 8, of the constitution of Connecticut provides in relevant part: No person shall ... be deprived of life, liberty or property without due process of law.... Article first, 10, of the constitution of Connecticut provides: All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay. Article first, 1, of the constitution of Connecticut provides: All men when they form a social compact, are equal in rights; and no man or set of men are entitled to exclusive public emoluments or privileges from the community. Article first, 20, of the constitution of Connecticut, as amended by articles five and twenty-one of the amendments, provides: No person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his or her civil or political rights because of religion, race, color, ancestry, national origin, sex or physical or mental disability. The plaintiffs also claimed that state laws limiting marriage to opposite sex couples violated the right of free expression and association protected by article first, 4, 5 and 14, of the constitution of Connecticut. On appeal, however, the plaintiffs expressly have abandoned that claim. General Statutes 46b38nn provides: Parties to a civil union shall have all the same benefits, protections and responsibilities under law, whether derived from the general statutes, administrative regulations or court rules, policy, common law or any other source of civil law, as are granted to spouses in a marriage, which is defined as the union of one man and one woman. General Statutes (Sup. 2008) 46b38oo provides: Wherever in the general statutes the terms spouse, family, immediate family, dependent, next of kin or any other term that denotes the spousal relationship are used or defined, a party to a civil union shall be included in such use or definition, and wherever in the general statutes, except sections 745 and 17b137a, subdivision (4) of section 45a727a, and sections 46b20 to 46b34, inclusive, 46b38nn and 46b150d, the term marriage is used or defined, a civil union shall be included in such use or definition. Wherever in the general statutes, except sections 46a60, 46a64, 46a64c, 46a66, the term marital status is used or defined, civil union status shall be included in such use or definition. For equal protection purposes, the classification at issue is sexual orientation. For ease of reference, we sometimes refer to gay persons as members of that class. The plaintiffs appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to General Statutes 51199(c) and Practice Book 651. As we discuss more fully in part V A of this opinion, the parties do not dispute that gay persons historically have been the object of invidious discrimination. We note, preliminarily, that no party has suggested that the test for determining whether our statutory scheme pertaining to marriage and civil unions gives rise to a cognizable claim under the state constitution is any different from that under the federal constitution. We agree with the following point made by the Lambda Legal Defense and Education Fund, Inc., in its amicus brief: Any married couple [reasonably] would feel that they had lost something precious and irreplaceable if the government were to tell them that they no longer were married and instead were in a civil union. The sense of being marriedwhat this conveys to a couple and their community, and the security of having others clearly understand the fact of their marriage and all it signifieswould be taken from them. These losses are part of what same sex couples are denied when government assigns them a civil union status. If the tables were turned, very few heterosexuals would countenance being told that they could enter only civil unions and that marriage is reserved for lesbian and gay couples. Surely there is [a] constitutional injury when the majority imposes on the minority that which it would not accept for itself. As one prominent legal commentator has explained in discussing the establishment of civil unions: Such a step reduces the discrimination, but falls far short of eliminating it. The institution of marriage is unique: it is a distinct mode of association and commitment with long traditions of historical, social, and personal meaning. It means something slightly different to each couple, no doubt. For some it is primarily a union that sanctifies sex, for others a social status, for still others a confirmation of the most profound possible commitment. But each of these meanings depends on associations that have been attached to the institution by centuries of experience. We can no more now create an alternate mode of commitment carrying a parallel intensity of meaning than we can now create a substitute for poetry or for love. The status of marriage is therefore a social resource of irreplaceable
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Kerrigan v. Commissioner of Public Health, 289 Conn. 135 (2008) 957 A.2d 407 value to those to whom it is offered: it enables two people together to create value in their lives that they could not create if that institution had never existed. We know that people of the same sex often love one another with the same passion as people of different sexes do and that they want as much as heterosexuals to have the benefits and experience of the married state. If we allow a heterosexual couple access to that wonderful resource but deny it to a homosexual couple, we make it possible for one pair but not the other to realize what they both believe to be an important value in their lives. R. Dworkin, Three Questions for America, N.Y. Review of Books, September 21, 2006, pp. 24, 30.
16
We are confused by the position that Justice Borden takes in his dissenting opinion with respect to the plaintiffs contention that they have alleged a cognizable constitutional claim. Justice Borden first expresses the view that the plaintiffs have set forth a claim sufficient to trigger equal protection analysis because of the uncertainty as to whether civil unions now or soon will be viewed by the citizens of our state as the social equivalent of marriage. Before engaging in this analysis, however, Justice Borden states that our experience with civil unions is simply too new and the views of the people of our state about it as a social institution are too much in flux to say with any certitude that the marriage statute must be struck down in order to vindicate the plaintiffs constitutional rights. This latter assertion is inconsistent with Justice Bordens earlier acknowledgment that, contrary to the decision of the trial court, the plaintiffs have set forth a claim that implicates the equal protection provisions of the state constitution. Nevertheless, with respect to Justice Bordens assertion that the plaintiffs have failed to demonstrate, to any reasonable degree of certainty, that the institution of marriage enjoys a greater status in our society than civil unions, for the reasons set forth by the trial court, we question whether, under that view, the plaintiffs have satisfied their burden of demonstrating actual harm. Moreover, Justice Bordens contention that there is insufficient reason to conclude that civil unions are not viewed as the social equivalent of marriage cannot be reconciled with his own acknowledgment that, in stark contrast to civil unions, marriage is a fundamental and ancient social institution that has existed in our state from before its founding and throughout the world for millennia. Part I C 2 of Justice Bordens dissenting opinion; see also Mendillo v. Board of Education, 246 Conn. 456, 493, 717 A.2d 1177 (1998) (Borden, J.) (characterizing marriage as a unique human relationship and the closest entity recognized by society [internal quotation marks omitted] ). We do not see how the recently created legal entity of civil union possibly can embody the same status as an institution of such long-standing and overriding societal importance as marriage. If proof of this obvious fact were necessary, it would suffice to point out that the vast majority of heterosexual couples would be unwilling to give up their constitutionally protected right to marry in exchange for the bundle of legal rights that the legislature has denominated a civil union. In addition, Justice Bordens assertion that the issue is irretrievably fact-bound and, therefore, falls outside this courts authority, is surprising in view of his willingness to marshal evidence from hearsay sources not in the record of this case and to draw conclusive inferences from those sources with respect to the relative political power of gay persons. See part I C of Justice Bordens dissenting opinion. In sum, Justice Bordens refusal to concede the obvious hardly reflects the wisdom to which Judge Learned Hand was referring when he reminded us that judges should never be too certain that they are right; rather, it brings to mind the admonition of former United States Supreme Court Justice Felix Frankfurter that we should not be ignorant as judges of what we know as men [and women]. Watts v. Indiana, 338 U.S. 49, 52, 69 S.Ct. 1347, 93 L.Ed. 1801 (1949). Finally, we also are not persuaded by Justice Zarellas rationale for concluding that the plaintiffs have raised a cognizable constitutional claim, namely, that the statutory right to marry has constitutional underpinnings whereas the statutory right to enter into a civil union does not. According to Justice Zarella, this difference has specific legal consequences for the plaintiffs, and thus gives rise to a legally cognizable or actionable harm, because the legislature presumably could not abolish the institution [of marriage] altogether even though it could repeal the civil union law. The difference that Justice Zarella identifies, however, is irrelevant for purposes of the present case because the plaintiffs have not alleged, and there is nothing in the record to suggest, that the legislature intends to repeal the civil union law. Consequently, the harm that Justice Zarella has identified is purely hypothetical. We do not believe that such a speculative injury is sufficient to support a constitutional claim. As we explain more fully hereinafter, claims brought under the equal protection provisions of the state constitution are analyzed on the basis of certain well established criteria or considerations. Although those criteria and the Geisler factors are in some respects interrelated, we first address the various criteria that are unique to the equal protection analysis; see parts III, IV and V of this opinion; and thereafter review the relevant Geisler factors. See part VI of this opinion. As we have indicated, the plaintiffs make no claim under the federal constitution. We note, however, that the United States Supreme Court never has decided, for purposes of the federal constitution, any of the issues raised by the plaintiffs claims. In his dissent, Justice Zarella alone asserts that same sex and opposite sex couples who wish to marry are not similarly situated because the former cannot engage in procreative sexual conduct. In view of the myriad and important similarities between same sex and opposite sex couples, including their shared interest in having and raising a family, we disagree that the inability of the former to conceive children together defeats the plaintiffs equal protection challenge. Although it may be argued that the states interest in regulating procreative conduct constitutes a rational basis for limiting marriage to opposite sex couplesan argument that, notably, the state itself expressly has disavowedthat rationale does not answer the entirely different question of whether same sex and opposite sex couples are similarly situated for present purposes. Because same sex and opposite sex couples have the same interest in having a family and the same right to do so, the mere fact that children of the former may be conceived in a
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Kerrigan v. Commissioner of Public Health, 289 Conn. 135 (2008) 957 A.2d 407 different manner than children of the latter is insufficient, standing alone, to negate the fundamental and overriding similarities that they share, both with regard to matters relating to family and in all other respects. Thus, even though procreative conduct plays an important role in many marriages, we do not believe that such conduct so defines the institution of marriage that the inability to engage in that conduct is determinative of whether same sex and opposite sex couples are similarly situated for equal protection purposes, especially in view of the fact that some opposite sex couples also are unable to procreate, and others choose not to do so. Indeed, Justice Zarella has identified no case, and we are aware of none, that has rejected an equal protection claim on the ground that same sex couples are not similarly situated to opposite sex couples, either because the former cannot engage in procreative conduct or for any other reason. In fact, many courts have reached a contrary conclusion. See, e.g., In re Marriage Cases, supra, 43 Cal.4th at 831 n. 54, 76 Cal.Rptr.3d 683, 183 P.3d 384;Lewis v. Harris, supra, 188 N.J. at 448, 451, 908 A.2d 196;Baker v. State, supra, 170 Vt. at 21819, 744 A.2d 864.
20
Indeed, not infrequently, the United States Supreme Court has omitted any reference to immutability in discussing the identifying or distinguishing characteristic of a particular class. See, e.g., Massachusetts Board of Retirement v. Murgia, supra, 427 U.S. at 31314, 96 S.Ct. 2562 (age); San Antonio Independent School District v. Rodriguez, supra, 411 U.S. at 20, 25, 93 S.Ct. 1278 (poverty); Graham v. Richardson, 403 U.S. 365, 37172, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971) (alienage). Thus, for purposes of determining whether a group is entitled to suspect or quasi-suspect class statusand, in contrast to the considerations of historical discrimination and whether the groups distinguishing characteristic bears on the ability of its members to participate in and contribute to societyimmutability is not a requirement, but a factor. (Emphasis in original.) J. Halley, Sexual Orientation and the Politics of Biology: A Critique of the Argument from Immutability, 46 Stan. L. Rev. 503, 507 (1994); see also Olagues v. Russoniello, 797 F.2d 1511, 1520 (9th Cir.1986) (Whether the classification is based on an immutable characteristic is sometimes an indication of a suspect class.... But immutability is not the sole determining factor. [Citation omitted.] ), vacated on other grounds, 484 U.S. 806, 108 S.Ct. 52, 98 L.Ed.2d 17 (1987); Able v. United States, 968 F.Supp. 850, 863 (E.D.N.Y.1997) ([i]mmutability is merely one of several possible indications that a classification is likely to reflect prejudice), revd on other grounds, 155 F.3d 628 (2d Cir.1998); In re Marriage Cases, supra, 43 Cal.4th at 841, 76 Cal.Rptr.3d 683, 183 P.3d 384 (immutability is not invariably required in order for a characteristic to be considered a suspect classification for equal protection purposes); Tanner v. Oregon Health Sciences University, 157 Or.App. 502, 522, 971 P.2d 435 (1998) (immutabilityin the sense of inability to alter or changeis not necessary for determining that class is suspect under Oregon constitution), review denied, 329 Or. 528, 994 P.2d 129 (1999). Moreover, because ones status as illegitimate also may be changed; see, e.g., Miller v. Albright, 523 U.S. 420, 431, 118 S.Ct. 1428, 140 L.Ed.2d 575 (1998) (recognizing that child born out of wedlock may be legitimated by father [internal quotation marks omitted] ); strictly speaking, illegitimacy also is not an immutable characteristic. Classifications based on illegitimacy nevertheless are subject to heightened scrutiny; see Mathews v. Lucas, supra, 427 U.S. at 505506, 96 S.Ct. 2755, primarily because the status of illegitimacy is not within the childs control and because the status bears no relation to the individuals ability to participate in and contribute to society. Id., at 505, 96 S.Ct. 2755. With respect to the relative importance of this fourth and final factor, notably, in every case involving a group that has been subjected to a history of purposeful discrimination based on an innate characteristic unrelated to its members ability to participate in or contribute to society, the group has been accorded status as a suspect or quasi-suspect class irrespective of its political power or lack thereof. See, e.g., Palmore v. Sidoti, 466 U.S. 429, 43334, 104 S.Ct. 1879, 80 L.Ed.2d 421 (1984) (race); Mathews v. Lucas, supra, 427 U.S. at 505506, 96 S.Ct. 2755 (illegitimacy); Frontiero v. Richardson, supra, 411 U.S. at 68688, 93 S.Ct. 1764 (plurality opinion) (sex). Conversely, when a group has failed either of the first two prongs of the inquiry to determine whether it is entitled to heightened protection, its claim to suspect or quasi-suspect class status invariably has been rejected without regard to the extent of its political power. See, e.g., Lyng v. Castillo, supra, 477 U.S. at 638, 106 S.Ct. 2727 (close relatives); Cleburne v. Cleburne Living Center, Inc., supra, 473 U.S. at 44142, 105 S.Ct. 3249 (mentally disadvantaged); Massachusetts Board of Retirement v. Murgia, supra, 427 U.S. at 31314, 96 S.Ct. 2562 (age). Thus, as one court has stated, [t]he significance of the [political powerlessness] test pales in comparison to the question[s] of whether ... the characteristic bears any relationship to the individuals ability to function in society, whether the group has suffered a history of discrimination based on misconceptions of that factor and whether that factor is the product of the groups own volition.Equality Foundation of Greater Cincinnati, Inc. v. Cincinnati, 860 F.Supp. 417, 43738 n. 17 (S.D.Ohio 1994), revd, 54 F.3d 261 (6th Cir.1995), vacated and remanded, 518 U.S. 1001, 116 S.Ct. 2519, 135 L.Ed.2d 1044 (1996); see also id. (Whether particular group is entitled to recognition as suspect or quasi-suspect class should not be controlled by ... a groups ability to pass or fail [the] ... political power test.... [R]elative political power cannot even be a particularly weighty factor, let alone a controlling one. For example, it cannot be said that males, as a group, have been relegated to such a position of political powerlessness as to require special judicial protection. Nonetheless, laws differentiating between the sexes which disadvantage males as well as females ... must be subjected to heightened scrutiny. See Mississippi [University] for Women v. Hogan, 458 U.S. 718, 723, 102 S.Ct. [3331], 73 L.Ed.2d 1090 (1982); Craig v. Boren, [supra, 429 U.S. at 204, 97 S.Ct. 451].). In fact, as the California Supreme Court recently has observed, current political powerlessness cannot be a requirement for recognition as a protected class because other groups, including AfricanAmericans and women, continue to be accorded such protection even though they are not lacking in political power. See In re Marriage Cases, supra, 43 Cal.4th at 843, 76 Cal.Rptr.3d 683, 183 P.3d 384.
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Our application of the test for determining whether a group is entitled to heightened protection under the state constitution, and, in particular, our consideration of the two subsidiary criteria of immutability and status as a minority or politically powerless group, is informed by the following observations of former United States Supreme Court Justice Thurgood Marshall about that test in his concurring and dissenting opinion in Cleburne v. Cleburne Living Center, Inc., supra, 473 U.S. at 432, 105 S.Ct. 3249. No single talisman can define those groups likely to be the target of classifications offensive to the [f]ourteenth [a]mendment and therefore warranting heightened or strict scrutiny; experience, not abstract logic, must be the primary guide. The political powerlessness of a group may be relevant ... but that factor is neither necessary, as the gender cases demonstrate, nor sufficient, as the example of minors illustrates. Minors cannot vote and thus might be considered politically powerless to an extreme degree. Nonetheless, we see few statutes reflecting prejudice or indifference to minors, and I am not aware of any suggestion that legislation affecting them be viewed with the suspicion of heightened scrutiny. Similarly, immutability of the trait at issue may be relevant, but many immutable characteristics, such as height or blindness, are valid bases of governmental action and classifications under a variety of circumstances.... The political powerlessness of a group and the immutability of its defining trait are relevant insofar as they point to a social and cultural isolation that gives the majority little reason to respect or be concerned with that groups interests and needs. Statutes discriminating against the young have not been common [and] need [not] be feared because those who do vote and legislate were once themselves young, typically have children of their own, and certainly interact regularly with minors. Their social integration means that minors, unlike discrete and insular minorities, tend to be treated in legislative arenas with full concern and respect, despite their formal and complete exclusion from the electoral process. The discreteness and insularity warranting a more searching judicial inquiry ... must therefore be viewed from a social and cultural perspective as well as a political one. To this task judges are well suited, for the lessons of history and experience are surely the best guide as to when, and with respect to what interests, society is likely to stigmatize individuals as members of an inferior caste or view them as not belonging to the community. Because prejudice spawns prejudice, and stereotypes produce limitations that confirm the stereotype on which they are based, a history of unequal treatment requires sensitivity to the prospect that its vestiges endure. In separating those groups that are discrete and insular from those that are not, as in many important legal distinctions, a page of history is worth a volume of logic. New York Trust Co. v. Eisner, 256 U.S. 345, 349 [41 S.Ct. 506, 65 L.Ed. 963] (1921) (Holmes, J.). (Citations omitted.) Cleburne v. Cleburne Living Center, Inc., supra, 473 U.S. at 47273 n. 24, 105 S.Ct. 3249 (Marshall, J., concurring in the judgment in part and dissenting in part). In this regard, we note that the Sixth Circuit Court of Appeals has suggested that suspect class status is appropriate for race, alienage and national origin because those classifications are seldom relevant to any legitimate state interest; Equality Foundation of Greater Cincinnati, Inc. v. Cincinnati, 54 F.3d 261, 266 (6th Cir.1995), vacated on other grounds and remanded, 518 U.S. 1001, 116 S.Ct. 2519, 135 L.Ed.2d 1044 (1996); whereas gender and illegitimacy have been accorded quasi-suspect status because statutes that classify along those lines are somewhat more likely to create a sensible legislative distinction.... Id. Professor Erwin Chemerinsky has posited that gender has been deemed a quasi-suspect class and not a suspect class because (1) [t]he framers of the [f]ourteenth [a]mendment meant only to outlaw race discrimination, (2) biological differences between men and women make it more likely that gender classifications will be justified, and thus less than strict scrutiny is appropriate to increase the chances that desirable laws will be upheld, and (3) women are a political majority who are not isolated from men and thus cannot be considered a discrete and insular minority. E. Chemerinsky, Constitutional Law: Principles and Policies (3d Ed. 2006) 9.4.1, p. 756. The defendants raise the threshold claim that this states marriage laws do not discriminate on the basis of sexual orientation because gay persons have the same right to marry that heterosexuals enjoy. Although the laws governing marriage do not discriminate expressly against gay persons inasmuch as such persons are no less free than heterosexuals to marry a person of the opposite sex, there can be no doubt that our statutes do differentiate implicitly on the basis of sexual preference. Conaway v. Deane, 401 Md. 219, 277, 932 A.2d 571 (2007). Those who prefer relationships with people of the opposite sex and those who prefer relationships with people of the same sex are not treated alike, since only opposite-sex relationships may gain the status and benefits associated with marriage. Hernandez v. Robles, 7 N.Y.3d 338, 364, 855 N.E.2d 1, 821 N.Y.S.2d 770 (2006); accord Conaway v. Deane, supra, at 277, 932 A.2d 571; see also Lawrence v. Texas, 539 U.S. 558, 583, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003) (OConnor, J., concurring in the judgment) (While it is true that the [Texas] law [criminalizing homosexual sodomy by two consenting adults in the privacy of their own home] applies only to conduct, the conduct targeted by [the] law is conduct that is closely correlated with being homosexual. Under such circumstances, Texas sodomy law is targeted at more than conduct. It is instead directed toward gay persons as a class.). We therefore disagree with Justice Zarellas contention that the most that can be said about the state statutory prohibition against same sex marriage is that it impacts gay persons disparately. First, the civil union law, which expressly provides for the union of same sex couples; see General Statutes 46b38bb; also expressly defines marriage as the union of one man and one woman. General Statutes 46b38nn. It is readily apparent, therefore, that the statutory scheme at issue purposefully and intentionally distinguishes between same sex and opposite sex couples. Moreover, as a general matter, the statutory provisions restricting marriage to a man and a woman cannot be understood as having merely a disparate impact on gay persons, but instead properly must be viewed as directly classifying and prescribing distinct treatment on the basis of sexual orientation. By limiting marriage to opposite-sex couples, the marriage statutes, realistically viewed, operate clearly and directly to impose different treatment on gay individuals because of their sexual orientation.... A statute that limits marriage to a union of persons of opposite sexes,
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Kerrigan v. Commissioner of Public Health, 289 Conn. 135 (2008) 957 A.2d 407 thereby placing marriage outside the reach of couples of the same sex, unquestionably imposes different treatment on the basis of sexual orientation.... [I]t is sophistic to suggest that this conclusion is avoidable by reason of the circumstance that the marriage statutes permit a gay man or a lesbian to marry someone of the opposite sex, because making such a choice would require the negation of the persons sexual orientation. Just as a statute that restrict[s] marriage only to couples of the same sex would discriminate against heterosexual persons on the basis of their heterosexual orientation, the ... statutes [being challenged] realistically must be viewed as discriminating against gay persons on the basis of their homosexual orientation. In re Marriage Cases, supra, 43 Cal.4th at 83940, 76 Cal.Rptr.3d 683, 183 P.3d 384. In other words, this states bar against same sex marriage effectively precludes gay persons from marrying; to conclude otherwise would be to blink at reality. See State v. Long, 268 Conn. 508, 534, 847 A.2d 862 ([t]o implicate the equal protection [clause] ... it is necessary that the state statute [or statutory scheme] in question, either on its face or in practice, treat persons standing in the same relation to it differently [emphasis added; internal quotation marks omitted] ), cert. denied, 543 U.S. 969, 125 S.Ct. 424, 160 L.Ed.2d 340 (2004). Accordingly, we reject the assertion that our laws governing marriage do not discriminate on the basis of sexual orientation.
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In 1993, Congress enacted legislation embodying the so-called dont ask, dont tell policy; see National Defense Authorization Act for Fiscal Year 1994, Pub.L. No. 103160, 571(a)(1), 107 Stat. 1547, 1670 (1993) (codified as amended at 10 U.S.C. 654), pursuant to which a service member who has engaged in, intends to engage in or is likely to engage in homosexual conduct will be ordered separated from the armed services. See 10 U.S.C. 654(b)(1) through (3) (2006) (providing that service member shall be separated from armed services if he or she has engaged in, attempted to engage in, or solicited another to engage in a homosexual act, or has stated that he or she is a homosexual or bisexual ... unless ... the member has demonstrated that he or she is not a person who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts, or has married or attempted to marry a person known to be of the same biological sex). We note that, in the past, overt discrimination against gay persons by the United States government was significantly more pervasive. Fifty years ago, no openly gay people worked for the federal government. In fact, shortly after ... Dwight Eisenhower [became the president in 1953, he] issued an executive order that banned homosexuals from government employment, civilian as well as military, and required companies with government contracts to ferret out and fire their gay employees. At the height of the McCarthy witch-hunt, the [Department of State] fired more homosexuals than communists. In the 1950s and 1960s literally thousands of men and women were discharged or forced to resign from civilian positions in the federal government because they were suspected of being gay or lesbian. G. Chauncey, Why Marriage? The History Shaping Todays Debate Over Gay Equality (Basic Books 2004) c. 1, p. 6; see also Forum for Academic & Institutional Rights v. Rumsfeld, 390 F.3d 219, 225 n. 3 (3d Cir.2004) ([although] the current statutory version of the militarys exclusionary policy [in 10 U.S.C. 654] has existed since 1993 ... the military has had formal regulatory policies excluding gays and lesbians since World War I and a practice of such exclusion since the Revolutionary War), revd on other grounds, 547 U.S. 47, 126 S.Ct. 1297, 164 L.Ed.2d 156 (2006). See generally Developments in the LawSexual Orientation and the Law, 102 Harv. L. Rev. 1508, 155657 (1989). The Internet sources to which we cite throughout this opinion were accessed and verified immediately before the date of publication of this opinion for the purpose of ensuring accuracy. All such sources are on file with this court. For example, at one time, more than half of the nations states, including New York, Michigan, and California, enacted laws authorizing the police to force persons who were convicted of certain sexual offenses, including sodomyor, in some states, merely suspected of being sexual deviantsto undergo psychiatric examinations. Many of these laws authorized the indefinite [commitment] of homosexuals in mental institutions, from which they were to be released only if they were cured of their homosexuality, something prison doctors soon began to complain was impossible. G. Chauncey, Why Marriage? The History Shaping Todays Debate Over Gay Equality (Basis Books 2004), c. 1, p. 11. See, e.g., Equality Foundation of Greater Cincinnati, Inc. v. Cincinnati, supra, 54 F.3d at 267 ([t]hose persons who fall within the orbit of legislation concerning sexual orientation are so affected not because of their orientation but rather by their conduct which identifies them as homosexual, bisexual, or heterosexual [emphasis in original] ); High Tech Gays v. Defense Industrial Security Clearance Office, 895 F.2d 563, 573 (9th Cir.1990) ([h]omosexuality is not an immutable characteristic; it is behavioral and hence is fundamentally different from traits such as race, gender or alienage, which define already existing suspect and quasi-suspect classes); Woodward v. United States, 871 F.2d 1068, 1076 (Fed.Cir.1989) ([m]embers of recognized suspect or quasi-suspect classes, e.g., blacks or women, exhibit immutable characteristics, whereas homosexuality is primarily behavioral in nature), cert. denied, 494 U.S. 1003, 110 S.Ct. 1295, 108 L.Ed.2d 473 (1990); Conaway v. Deane, supra, 401 Md. at 294, 932 A.2d 571 ([i]n the absence of some generally accepted scientific conclusion identifying homosexuality as an immutable characteristic ... we decline ... to recognize sexual orientation as an immutable trait); see also Andersen v. King County, 158 Wash.2d 1, 20 & n. 6, 138 P.3d 963 (2006) (although court recognize[d] that th[e] question [of whether homosexuality is an immutable trait] is being researched and debated across the country ... and ... offer[ed] no opinion as to whether such a showing may be made at some later time, plaintiffs in that case failed to make showing of immutability). HernandezMontiel v. Immigration & Naturalization Service, 225 F.3d 1084, 1093 (9th Cir.2000) ([s]exual orientation and sexual identity are immutable); E. Chemerinsky, Constitutional Law: Principles and Policies (3d Ed. 2006) 9.7.4, p. 787 (recent
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Kerrigan v. Commissioner of Public Health, 289 Conn. 135 (2008) 957 A.2d 407 research suggests that sexual orientation is immutable and not a matter of individual choice); see, e.g., Able v. United States, 968 F.Supp. 850, 864 (E.D.N.Y.1997) ( [s]ame-sex sexual orientation persists in all societies and has proven to be almost completely resistant to change or treatment, despite widespread discrimination and social pressure against homosexuals), revd on other grounds, 155 F.3d 628 (2d Cir.1998); Equality Foundation of Greater Cincinnati, Inc. v. Cincinnati, supra, 860 F.Supp. at 426 ([s]exual orientation is set ... at a very early age ... and is not only involuntary, but is unamenable to change); Jantz v. Muci, supra, 759 F.Supp. at 1547, 1548 (according to the overwhelming weight of currently available scientific information ... sexual orientation (whether homosexual or heterosexual) is generally not subject to conscious change and is not subject to voluntary control [citations omitted] ); Gay Rights Coalition of Georgetown University Law Center v. Georgetown University, 536 A.2d 1, 3435 (D.C.1987) (opinion announcing judgment) ([H]omosexuality is as deeply ingrained as heterosexuality.... Neither homosexuals nor heterosexuals are what they are by design. [Internal quotation marks omitted.] ); Commonwealth v. Wasson, 842 S.W.2d 487, 500 (Ky.1993) (sexual orientation of homosexuals is characteristic that is likely to be beyond their control); L. Tribe, supra, 1633, at p. 1616 (sexual orientation of homosexuals is in all likelihood a characteristic determined by causes not within [their] control [internal quotation marks omitted] ); E. Kostoulas, Ask, Tell, and Be Merry: The Constitutionality of Dont Ask, Dont Tell Following Lawrence v. Texas and United States v. Marcum, 9 U. Pa. J. Const. L. 565, 586 (2007) ( [i]t is ... generally accepted that homosexuals cannot change their sexual orientation); see also High Tech Gays v. Defense Industrial Security Clearance Office, supra, 909 F.2d at 377 (Canby, J., dissenting) (There is every reason to regard homosexuality as an immutable characteristic for equal protection purposes.... Sexual identity is established at a very early age; it is not a matter of conscious or controllable choice.).
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It is difficult to discern precisely the percentage of homosexuals in the population. Studies conducted by Alfred C. Kinsey in the mid-twentieth century indicated that approximately one out of every ten men was gay; A. Kinsey, W. Pomeroy & C. Martin, Sexual Behavior in the Human Male (W.B. Saunders 1948) p. 651; and that lesbians apparently comprised a somewhat smaller percentage of the population. A. Kinsey, W. Pomeroy & C. Martin et al., Sexual Behavior in the Human Female (Indiana University Press Ed. 1998) (1953) p. 474; see also High Tech Gays v. Defense Industrial Security Clearance Office, supra, 909 F.2d at 378 (Canby, J., dissenting) (by most estimates, 10 percent of population is homosexual). Although these figures received widespread acceptance for many years, subsequent research suggests that the percentage of homosexuals in the population likely is lower. See, e.g., R. Michael, J. Gagnon & E. Laumann et al., Sex in America: A Definitive Survey (CSG Enterprises, Inc. 1994) c. 9, pp. 17475 (study finding that 6 percent of men and 4 percent of women were attracted to members of same sex); R. Posner, supra, c. 11, at p. 295 (noting that most estimates of percentage of homosexual men in population range from 2 to 5 percent and that estimates of homosexual women in population are lower); cf. Equality Foundation of Greater Cincinnati, Inc. v. Cincinnati, supra, 860 F.Supp. at 426 (concluding, after evidentiary hearing, that homosexuals comprise between 5 and 13 percent of population). The United States Supreme Court subsequently has made it clear that sex is a quasi-suspect classification and that statutes discriminating on that basis are subject to intermediate scrutiny rather than strict scrutiny. See, e.g., Craig v. Boren, supra, 429 U.S. at 197, 97 S.Ct. 451. Although Frontiero was a plurality opinion, its holding subsequently has been approved repeatedly by the court. See, e.g., Nevada Dept. of Human Resources v. Hibbs, 538 U.S. 721, 730, 123 S.Ct. 1972, 155 L.Ed.2d 953 (2003) (explaining that measures that differentiate on the basis of gender warrant heightened scrutiny); see also United States v. Virginia, supra, 518 U.S. at 531, 116 S.Ct. 2264;J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 136, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994); Cleburne v. Cleburne Living Center, Inc., supra, 473 U.S. at 44041, 105 S.Ct. 3249. As examples, the court noted that, as of the date of its decision in 1973, no woman ever had been elected president of the United States or appointed to the United States Supreme Court. Frontiero v. Richardson, supra, 411 U.S. at 686 n. 17, 93 S.Ct. 1764 (plurality opinion). The court also noted that, at that time, no woman was serving in the United States Senate, and only fourteen women were serving in the United States House of Representatives. Id. For example, in the 110th Congress, sixteen women now serve in the United States Senate and seventy-eight currently serve in the United States House of Representatives. See Women in Congress, available at http:// womenincongress.house.gov/data/wic-by-congress.html?cong=110. Furthermore, two women have been appointed to the United States Supreme Court. In addition, in 1973, when Frontiero was decided, only three women ever had served as governor of a state. See J. Lewis, Women Governors, available at http://womenshistory.about. com/od/governors/a/governors.htm. Since that date, twenty-seven women have held, or now hold, that position. See id. See R. Longley, Still More Boys Than Girls Being Born ([i]n 2003, the Census Bureau estimated a total of 144,513,361 females of all ages, compared to 138,396,524 males), available at http://usgovinfo.about. com/od/censusandstatistics/a/moreboys.htm. For example, AfricanAmericans are protected by three federal constitutional amendments, [several] major federal Civil Rights Acts of [the nineteenth and twentieth centuries], as well as by antidiscrimination laws in [no fewer than forty-eight] of the states. High Tech Gays v. Defense Industrial Security Clearance Office, supra, 909 F.2d at 378 (Canby, J., dissenting). The magnitude of the political progress that AfricanAmericans and women have made is exemplified by the fact that the Democratic party nominee for president of the United States in 2008 is an AfricanAmerican man, and that a woman, who had been viewed by some as the
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Kerrigan v. Commissioner of Public Health, 289 Conn. 135 (2008) 957 A.2d 407 favorite to win that partys nomination, ran a close second. Furthermore, the Republican party nominee for vice president of the United States in 2008 is a woman. Consequently, in 2009, following the general election in November, 2008, either an AfricanAmerican man will be president of the United States or a woman will be vice president of the United States.
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Indeed, it has been asserted that [t]he predominating purpose motivating the exclusion of gay persons from state-recognized marriages is religious.... This may explain why the movement to exclude gay couples from the institution of marriage has been a fundamentally religious movement. Comment, Whats in a Name? Civil Unions and the Constitutional Significance of Marriage, 10 U. Pa. J. Const. L. 607, 63233 (2008). Of course, we do not suggest that there is anything untoward or improper about such efforts to mold public policy or opinion, for such activity lies at the core of our democratic system. Nor do we equate religious beliefs with prejudice. Our point is simply that gay persons face steep, if not insurmountable, hurdles in changing or even modifying deeply held beliefs that their manner of sexual intimacy is morally unacceptable. According to a national survey conducted in 2000, 74 percent of [gay persons] and bisexuals reported having been subjected to verbal abuse because of their sexual orientation and 32 percent reported being the target of physical violence. [See] ... Henry J. Kaiser Family Foundation, InsideOut: A Report on the Experiences of Lesbians, Gays and Bisexuals in America and the Publics View on Issues and Policies Related to Sexual Orientation (2001) pp. 34.... In re Marriage Cases, 49 Cal.Rptr.3d 675, 757 n. 18 (App.2006) (Kline, J., concurring and dissenting), revd on other grounds, 43 Cal.4th 757, 183 P.3d 384, 76 Cal.Rptr.3d 683 (2008); see also D. Satcher, supra ([a]veraged over two dozen studies, 80 percent of gay [persons] had experienced verbal or physical harassment on the basis of their orientation, 45 percent had been threatened with violence, and 17 percent had experienced a physical attack). Even in Connecticut, which has been at the forefront nationally in efforts to combat some of the most blatant forms of discrimination against its gay persons, the percentage of total anti-gay hate crimes increased more than twofold from approximately 9 percent of all reported hate crimes in 2000 to approximately 18 percent in 2004. Compare Partners Against Hate, 2000 Federal Bureau of Investigation Hate Crime Statistics, available at http://www.partnersagainsthate. org/statistics/connecticut2000.html, with Partners Against Hate, 2004 Federal Bureau of Investigation Hate Crime Statistics, available at http://www.partnersagainsthate.org/statistics/connecticut2004.html. Recent data show that Connecticut ranks thirteenth nationally among all states in the total number of reported criminal offenses classified as hate crimes with a sexual orientation bias. See Crime Statistics, Sexual Oriented Related Hate Crimes by State, available at http://www.statemaster. com/graph/cri_hat_cri_sex_ori_rel-hatecrimes-sexualorientation-related. In this regard, it is noteworthy that a poll taken in 1998 by the National Law Journal found that 17.1 percent of prospective jurors admitted to a bias against homosexuals that would make it impossible for them to be fair and impartial in a case in which one of the parties was a homosexual. Juror Outlook Survey, National L.J., November 2, 1998, pp. A1, A24A25. By contrast, only 4.8 percent indicated that they could not be fair to AfricanAmericans, and 5 percent stated that they could not be fair to women. Id. Thus, as former United States Supreme Court Justice William Brennan, joined by Justice Thurgood Marshall, stated: Because of the immediate and severe opprobrium often manifested against homosexuals once so identified publicly, members of this group are particularly powerless to pursue their rights openly in the political arena. Moreover, homosexuals have historically been the object of pernicious and sustained hostility, and it is fair to say that discrimination against homosexuals is likely ... to reflect deep-seated prejudice rather than ... rationality. Rowland v. Mad River Local School District, 470 U.S. 1009, 1014, 105 S.Ct. 1373, 84 L.Ed.2d 392 (1985) (Brennan, J., dissenting), quoting Plyler v. Doe, supra, 457 U.S. at 216 n. 14, 102 S.Ct. 2382. Indeed, as far as we know, there is only one openly gay or lesbian federal judge in the entire nation. See N. McDonald, Queer Eye for the Ballot Box: Is Philadelphia Ready for Its First Gay Mayor (January 17, 2007), available at http://www.citypaper. net/articles/2007/01/18/queer-eye-for-the-ballot-box. Apparently, this represents one of the largest contingents of gay persons of any state legislature in the nation. See State Legislature Has Largest Gay Caucus in U.S. (January 23, 2008), available at http:// www. komotv.com/news/local/14133022.html (reporting that, in addition to Connecticut, states with largest number of gay and lesbian legislators include New Hampshire, with seven gay and lesbian lawmakers, and Washington, which has six gay and lesbian lawmakers). Although we recognize that Connecticut is a leader in terms of the number of openly gay and lesbian lawmakers elected to the legislature, we view that fact as indicative of the political weakness of gay persons nationwide, and not as indicative of the political strength of gay persons in this state. It is noteworthy that, in contrast to our state laws designed to protect gay persons from discrimination, federal law reflects Congress reluctance to address such discrimination on a nationwide basis. Thus, for example, despite repeated attempts to extend the protections of Title VII to sexual orientation, the federal antidiscrimination provisions do not ban discrimination on that basis. See generally 42 U.S.C. 2000e et seq. Under the dont ask, dont tell policy applicable to the armed forces of the United States, gay persons cannot serve in the military except under severely circumscribed circumstances. See 10 U.S.C. 654 (2006); see also footnote 25 of this opinion. In addition, under the federal Defense of Marriage Act, which was enacted in 1996 and is codified at 1
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Kerrigan v. Commissioner of Public Health, 289 Conn. 135 (2008) 957 A.2d 407 U.S.C. 7 and 28 U.S.C. 1738C, no state is required to give effect to a same sex marriage solemnized in another state. Federal law, therefore, provides gay persons with little or no protection from discrimination. Furthermore, at least twenty-five states, including Alabama, Alaska, Arkansas, Colorado, Georgia, Idaho, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, Nevada, North Dakota, Ohio, Oklahoma, Oregon, South Carolina, South Dakota, Tennessee, Texas, Utah, and Wisconsin, have passed constitutional amendments banning same sex marriage, a development that many view as reflecting widespread opposition to equal rights for gay persons.
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Cf. General Statutes 45a726a (Notwithstanding any provision of sections 4a60a and 46a81a to 46a81p, inclusive, the Commissioner of Children and Families or a child-placing agency may consider the sexual orientation of the prospective adoptive or foster parent or parents when placing a child for adoption or in foster care. Nothing in this section shall be deemed to require the Commissioner of Children and Families or a child-placing agency to place a child for adopting or in foster care with a prospective adoptive or foster parent or parents who are homosexual or bisexual.). Not surprisingly, the relevant legislative history demonstrates that the disclaimer set forth in 46a81r (1) was a political compromise designed to assure persons opposed to homosexual conduct of this states unwillingness to approve or condone such conduct. Indeed, when asked, during floor debate on the gay rights law, why heterosexuality was not included in the disclaimer, Representative Richard D. Tulisano, a sponsor of the bill, replied, Why [is it] not included? Because maybe I want to condone heterosexuality. 34 H.R. Proc., Pt. 7, 1991 Sess., p. 2615; see also id., at pp. 261426, remarks of Representatives Tulisano and William L. Wollenberg (addressing proviso that state does not condone homosexual lifestyle and acknowledging that it was political compromise aimed at distinguishing homosexual behavior from sexual orientation); cf. 34 S. Proc., Pt. 3, 1991 Sess., pp. 97677, remarks of Senator Anthony V. Avallone (One of the thingsthe issues that clouded ... my judgment and others, one of the issues raised early on in this bill was does the [s]tate of Connecticut, by this bill, condone a particular activity that is offensive to a particular portion of the community and [that] is really the business of consenting adults.... I know this bill does not do that.). In his dissent, Justice Borden seeks to negate the import of 46a81r (1) by asserting that the provision merely reflects the states neutrality with respect to the legitimacy or propriety of homosexual conduct. See footnote 15 of Justice Bordens dissenting opinion. In making this assertion, Justice Borden ignores the centuries of prejudice and discrimination that gay persons have faced, the fact that the legislature never has deemed it necessary to make such a statement of neutrality with respect to the heterosexual lifestyle, and the legislative history of 46a81r (1), which, as we have indicated; see footnote 45 of this opinion; demonstrates that the provision was intended to assuage those citizens and legislators who believed that sexual conduct involving persons of the same sex is immoral, wrong or otherwise not to be condoned. Construed fairly, therefore, 46a81r (1) is manifestly not neutral and must be read to express this states preference for heterosexual conduct. See House Bill No. 7115, 1989 Sess.; Senate Bill No. 208, 1987 Sess.; House Bill No. 7584, 1987 Sess.; Senate Bill No. 398, 1983 Sess.; Senate Bill No. 813, 1981 Sess.; House Bill No. 6545, 1981 Sess.; see also Conn. Joint Standing Committee Hearings, Judiciary, Pt. 3, 1991 Sess., pp. 73940 (proposed legislation that would become gay rights law had been kicking around in Connecticut for more than ten years and the fact that we continue to ignore passage of this [legislation] I think perpetuates a grave injustice against the segment of our population). See 34 S. Proc., Pt. 3, 1991 Sess., p. 986, remarks of Senator George C. Jepsen (If anything, I personally feel that the legislation does not go far enough. I would prefer a stronger bill. I would prefer bills that we saw in previous years. I think, however, the bill before us today addresses the needs of society adequately. It takes into account the difficult situation, ploys by religion and deals with it appropriate [ly] ....); id., at p. 993, remarks of Senator Louis C. DeLuca (In Senator [Anthony V.] Avallones remarks he said that this bill [h]as carefully crafted exceptions. It seems to me when you introduce legislation and have to carefully craft all those exceptions, you understand from the beginning that this [is] an exceptional bill and it does not fit the norm of discrimination.); 34 H.R. Proc., Pt. 7, 1991 Sess., p. 2597, remarks of Representative Richard D. Tulisano ([T]he bill before us represents a revised attempt, if you will, at dealing with the issue of discrimination on the basis of sexual orientation. The bill ... does not, as we have done in past years, add to [the] list of protected classes, that dealing with sexual orientation and effectively we have narrowed this bill to apply or to create a new body of law.... So, therefore, the old approach we ... obviously took into account and made sexual orientation the broad application that was dealt with race, religion, color, as is done in most of our Civil Rights Acts. This approach is somewhat different. It is narrower. It seeks to respond to some of the issues that have been raised over the years in this debate.); 34 H.R. Proc., supra, at p. 2752, remarks of Representative Juan A. Figueroa ([t]his is probably the most narrowly drawn civil rights bill to be passed in this state). The following comments of Justice Thurgood Marshall also are instructive in this regard: [H]istory makes clear that constitutional principles of equality, like constitutional principles of liberty, property, and due process, evolve over time; what was once a natural and self-evident ordering later comes to be seen as an artificial and invidious constraint on human potential and freedom. Compare Plessy v. Ferguson, 163 U.S. 537 [16 S.Ct. 1138, 41 L.Ed. 256] (1896), and Bradwell v. Illinois, [83 U.S. (16 Wall.) 130, 141, 21 L.Ed. 442 (1873) ] (Bradley, J., concurring in judgment), with Brown v. Board of Education, [supra, 347 U.S. at 483, 74 S.Ct. 686], and Reed v. Reed, 404 U.S. 71 [92 S.Ct. 251, 30 L.Ed.2d 225] (1971). Shifting cultural, political, and social patterns at times come to make past practices appear inconsistent with fundamental principles [on] which American society rests,
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Kerrigan v. Commissioner of Public Health, 289 Conn. 135 (2008) 957 A.2d 407 an inconsistency legally cognizable under the [e]qual [p]rotection [c]lause. It is natural that evolving standards of equality come to be embodied in legislation. When that occurs, courts should look to the fact of such change as a source of guidance on evolving principles of equality. Cleburne v. Cleburne Living Center, Inc., supra, 473 U.S. at 466, 105 S.Ct. 3249 (Marshall, J., concurring in the judgment in part and dissenting in part).
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Although that legislative determination is clear enough from the terms of the laws provisions, the legislative purposeand the recognition that gay persons possess limited political poweris further reflected in the legislative history. For example, Senator George C. Jepsen, speaking in favor of the gay rights law, explained that discrimination on the basis of sexual orientation is widespread, even systematic in our society.... [I]t is entirely appropriate to address this difficult and important subject in the Congress and in the [l]egislatures across our country. I believe that the mark of a civilized society is how well it addresses the needs of those least well-equipped to protect themselves and that ... throughout our history each generation has had to stand up and be counted on whether theyre going to protect those most poorly situated to protect themselves, whether it was ... to protect political activists in the wake of World War I or in the McCarthy era, whether it was to protect against religious discrimination ... throughout our history, whether it was the [c]ivil [r]ights struggle to protect blacks and Hispanics, culminating in the 1960s, whether it was the struggle for equality for women in the 1960s, 1970s and today and now we have the issue of sexual orientation. *** [C]ountless gays ... fear discrimination in their jobs, in their housing if their identity is know[n]. I know of overt acts of discrimination, whether its slurs, ugly slurs painted on the sides of houses or on the cars of homosexuals, whether it was the testimony of individuals before the [j]udiciary [c]ommittee earlier this year, whether it was the letters and the write-ins from countless individuals who are gay and who have faced discrimination in their lives.... (Emphasis added.) 34 S. Proc., Pt. 3, 1991 Sess., pp. 98385, remarks of Senator Jepsen. Senator Jepsens remarks concerning the intense and pervasive prejudice and discrimination that gays have suffered for so long, their relative lack of political power, and the need for an extraordinary legislative response affording gay persons a measure of legal protection, speak volumes about the extent to which gay persons constitute a discrete and insular minority ... for whom ... heightened judicial solicitude is appropriate. (Citation omitted; internal quotation marks omitted.) Graham v. Richardson, supra, 403 U.S. at 372, 91 S.Ct. 1848. In his dissenting opinion, Justice Borden concludes that gay persons are not entitled to protected status because they have too much political power to warrant such protection. As we discuss more fully in part V D 3 of this opinion, this conclusion is flawed because, at the time women were accorded protected status under the federal constitution, they possessed more political power than gays in this state currently possess. We recognize that several federal and state courts have held that sexual orientation is not a suspect or quasi-suspect classification, holdings that have been based, in part, on the determination that gay persons are not politically powerless. See High Tech Gays v. Defense Industrial Security Clearance Office, 895 F.2d 563, 57374 (deciding issue under federal constitution), rehg denied en banc, 909 F.2d 375 (9th Cir.1990); BenShalom v. Marsh, 881 F.2d 454, 464, 466 (7th Cir.1989) (deciding issue under federal constitution), cert. denied sub nom. BenShalom v. Stone, 494 U.S. 1004, 110 S.Ct. 1296, 108 L.Ed.2d 473 (1990); Conaway v. Deane, supra, 401 Md. at 277, 290, 932 A.2d 571 (deciding issue under state constitution); Andersen v. King County, supra, 158 Wash.2d at 21, 138 P.3d 963 (deciding issue under state constitution). In each such case, the court had predicated its conclusion on the assertion that the political power of gay persons is increasing, a fact sometimes manifested in the enactment of laws affording gay persons certain legal protections. These cases are unpersuasive because, first, the courts applied the term politically powerless more or less literally to deprive gay persons protected status. As we previously have explained, such an application of the political powerlessness prong fails to account for the fact that the United States Supreme Court properly accorded AfricanAmericans and women enhanced judicial protection at a time when they had more political power than gay persons currently possess. See E. Gerstmann, supra, c. 4, at pp. 8184 (explaining that courts should apply to gay persons same political powerlessness standard that had been applied to AfricanAmericans and women in determining whether they constituted suspect classes for equal protection purposes). Because those courts failed to consider the political power of gay persons in comparison to the political power of such other protected groups, their conclusions were based on a fundamentally flawed legal predicate in each case. The cases also are not persuasive because the courts applied the political powerlessness prong as dispositive of the suspectness inquiry. As we have explained, to the extent that the Supreme Court has considered the political power of a group in determining whether it is entitled to suspect or quasi-suspect class status, it has accorded that prong the least amount of weight. See part IV of this opinion. Thus, in Justice Bordens view, any statute that discriminates against gay persons would pass muster under the equal protection provisions of the state constitution if a court could conceive of any plausible justification for sustaining the discriminatory legislation, the same highly deferential standard that applies in the area of economics and social welfare. See, e.g., BatteHolmgren v. Commissioner of Public Health, 281 Conn. 277, 296, 914 A.2d 996 (2007). Justice Bordens analysis is predicated primarily on certain language in Cleburne v. Cleburne Living Center, Inc., supra, 473 U.S. at 432, 105 S.Ct. 3249, in which the court referred to legislation affording special benefits to the mentally disadvantaged as
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Kerrigan v. Commissioner of Public Health, 289 Conn. 135 (2008) 957 A.2d 407 negating any claim that the mentally retarded are politically powerless in the sense that they have no ability to attract the attention of the lawmakers. Id., at 445, 105 S.Ct. 3249. It is important to note, however, that the political influence of the mentally disadvantaged hardly was a primary reason why the court in Cleburne concluded that the mentally disadvantaged are not entitled to heightened protection under the federal constitution. In fact, in Cleburne, the court cited several other overriding reasons in support of its conclusion, relying first and foremost on the undeniable fact that those who are mentally retarded have a reduced ability to cope with and function in the everyday world; id., at 442, 105 S.Ct. 3249; such that the state has a legitimate interest in dealing with and providing for them legislatively. Id.; see also id., at 441, 105 S.Ct. 3249 (observing that the lesson of [controlling precedent] is that [when] individuals in the group affected by a law have distinguishing characteristics relevant to interests the [s]tate has the authority to implement, the courts have been very reluctant ... to closely scrutinize legislative choices as to whether, how, and to what extent those interests should be pursued). The court also observed that the beneficent legislative response to the particular needs of the mentally disadvantaged, a response that the court characterized as singling out the [mentally] retarded for special treatment; id., at 444, 105 S.Ct. 3249; in addressing their unique problems ... belies a continuing antipathy or prejudice against them as a group. Id., at 443, 105 S.Ct. 3249. Thus, the court concluded that, in light of these two considerations, heightened judicial scrutiny of laws pertaining to the mentally disadvantaged was not necessary. See id., at 446, 105 S.Ct. 3249. Thus, Cleburne merely raises the possibility that, if a class historically has been subjected to invidious discrimination, but the defining characteristic of that class, like that of the mentally disadvantaged in Cleburne, bears a legitimate relation to the ability to perform in society, that class still might be deemed quasi-suspect if the members of that class are politically powerless in the sense that they have no ability to attract the attention of the lawmakers. (Emphasis added.). Id., at 445, 105 S.Ct. 3249. When, however, as in the present case, the defining characteristic of the class bears no relationship to the ability to perform in society, the mere ability of the group to attract the attention of the lawmakers; id.; would not provide a reason to deprive the group of protected status.
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We note that Justice Borden also fails to explain why AfricanAmericans properly were afforded suspect class status because, at the time they received such recognition, they, like gay persons in this state, were the subject of antidiscrimination legislation. See High Tech Gays v. Defense Industrial Security Clearance Office, supra, 909 F.2d at 378 (Canby, J., dissenting). We focus on women, however, because they have been deemed to be entitled to protection as a quasi-suspect class, the level of protection that we conclude applies to gay persons under the state constitution. Moreover, although women as a group have been subjected to invidious discrimination in the form of stereotyping about their proper role and ability to perform in society, in contrast to gay persons, they have not been the object of hatred and revulsion for who they are. Just as Justice Borden fails to recognize the import of Frontiero to the present case, he also fails to explain how Frontiero is compatible with United States v. Carolene Products Co., supra, 304 U.S. at 144, 58 S.Ct. 778, a case on which he places primary emphasis. In Carolene Products Co., the United States Supreme Court indicated that it might be appropriate, in some future case, to afford discrete and insular minorities special constitutional protection because the ordinary political processes might not be sufficiently open to them. Id., at 15253 n. 4, 58 S.Ct. 778. We do not see how women possibly could have been characterized as a politically impotent insular minority in 1973, as that term is used in Carolene Products Co., and yet women were accorded protected status at that time. To support the result that he reaches, Justice Borden turns to the fact that, at a televised news briefing or news conference in January, 2007, attended by legislative supporters of a gay marriage bill that ultimately was never even submitted to a vote by the full legislature, certain elected officials observed that support for a gay marriage bill in this state is growing. They also expressed optimism that such a bill might, at some point, have enough support in this state to pass and receive gubernatorial approval, support that so far has not been forthcoming. From these various statements and opinions, and from certain statements contained in a press release, apparently issued on May 11, 2007, by the cochairmen of the state legislatures judiciary committee, Justice Borden concludes, as a matter of fact, that proponents of gay marriage in this state now have the political power to enact gay marriage legislation and that such legislation is about to [be enacted]. Justice Borden further asserts that the statements of selected supporters of gay marriage in this state, coupled with the legislative advances that gay persons have made over the last several decades, demonstrate that gay persons are so politically powerful that they do not need heightened judicial protection. We disagree. Before addressing the substance of Justice Bordens argument, we first note our disapproval of Justice Bordens reliance on a news conference and press release that are not part of the record of this case, have not been made available to the parties for their review and comment, and do not contain facts or information that is undisputed or otherwise appropriate for judicial notice by this or any other court. Because the parties never have been afforded the opportunity to be heard about the statements contained in the press conference and the press releasewhich apparently were retrieved by Justice Borden after the oral argument in this casewe have not heard the parties views concerning the relevance and import of the two items, if any, to the present case. Furthermore, all of the statements that Justice Borden lifts from the news conference and the press release constitute the rankest form of hearsay, and merely represent the sentiments and opinions of several selected legislators as expressed at a particular point in time and in a particular forum. Indeed, to infer, on the basis of those opinions, that a gay marriage bill soon will become law in this state, as Justice Borden does, contravenes the prohibition against appellate fact-finding. See Weil v. Miller, 185 Conn. 495, 502, 441 A.2d 142 (1981) ( [t]his court cannot find facts; that function is, according to our constitution, our statute, and
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Kerrigan v. Commissioner of Public Health, 289 Conn. 135 (2008) 957 A.2d 407 our cases, exclusively assigned to the trial courts); see also State v. Lawrence, 282 Conn. 141, 156, 920 A.2d 236 (2007) (Borden, J.) (appellate tribunal does not assess credibility or find facts). For all these reasons, we conclude that reliance on these items cannot be justified. Nonetheless, with respect to the conclusions that Justice Borden has reached on the basis of selected excerpts from statements made at the news conference and contained in the press release, we reject his interpretation of those statements as indicating that gay marriage necessarily is likely in this state, let alone inevitable, merely because one or more legislators suggested as much. We also reject Justice Bordens conclusion because, in any event, statements made at a political rally by those advocating for a particular cause invariably represent a certain degreefrequently a great degreeof posturing and hyperbole that are designed to elicit enthusiasm and support for that cause. Justice Bordens reliance on these statements from a few legislators also ignores the fact that, however hopeful or even optimistic some may be about the future legislative response to gay marriagenotwithstanding, for example, the governors vow to veto any such legislationthere simply is no way to know how such a bill will fare if and when it is introduced in the legislature. As we previously have observed, the ultimate failure of the equal rights amendment despite overwhelming support proves this point. Indeed, there can be no doubt that any gay marriage bill will face strong opposition in the state and in the legislature, just as it has in the past, and that such opposition will be fueled by the argument that gay marriage now is unnecessary in light of the availability of civil unions. It therefore is impossible to predict what the future holds for gay marriage in this state. In fact, the difficulty inherent in making such predictions, like the difficulty in discerning the relative political power of a historically disfavored group, is compelling reason why the political powerlessness factor warrants little, if any, weight in the suspectness inquiry, and why the court in Frontiero afforded women protected status even though imminent ratification of the equal rights amendment appeared to be a virtual certainty.
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Thus, Justice Bordens criticism of our application of the political powerlessness test to gay persons as cramped is, in reality, directed at the test as applied by the court in Frontiero and its progeny because that is the test that we apply today. Indeed, if the court in Frontiero had applied that test to women, as Justice Borden would apply it in the present case to gay persons, there is no way that women would have been accorded protected status in light of the political power that they already had possessed in 1973. We also disagree with Justice Bordens claim that we have short-circuited the democratic process. In fact, that is precisely the claim that Justice Powell made in support of his contention that the court in Frontiero should not accord women heightened constitutional protection. See Frontiero v. Richardson, supra, 411 U.S. at 692, 93 S.Ct. 1764 (Powell, J., concurring) (If [the equal rights] [a]mendment is duly adopted, it will represent the will of the people accomplished in the manner prescribed by the [c]onstitution. By acting prematurely and unnecessarily ... the [c]ourt has assumed a decisional responsibility at the very time when state legislatures, functioning within the traditional democratic process, are debating the proposed [a]mendment. It seems to me that this reaching out to [preempt] by judicial action a major political decision which is currently in process of resolution does not reflect appropriate respect for duly prescribed legislative processes.). We reject Justice Bordens claim for the same reason that the court rejected Justice Powells identical contention in Frontiero: gay persons, like women, are not so politically powerful as to eliminate the need for heightened constitutional protection. Although our suspectness inquiry necessarily implicates many of the considerations identified in Geisler, we nevertheless deem it appropriate to undertake a separate Geisler analysis because the plaintiffs claim raises an issue under the state constitution that never has been decided by the United States Supreme Court under the analogous provisions of the federal constitution. Article first, 1, of the Connecticut constitution, which provides in relevant part that [a]ll men when they form a social compact, are equal in rights, also contains no facial indication as to whether this states prohibition of same sex marriage infringes on the rights of gay persons. We note, moreover, that the plaintiffs do not claim that they are entitled to greater rights under article first, 1, than they are afforded under article first, 20. The specific issue that the Appellate Court addressed in State v. John M., 94 Conn.App. 667, 894 A.2d 376 (2006), revd on other grounds sub nom. State v. John F.M., 285 Conn. 528, 940 A.2d 755 (2008), was whether the equal protection clause of the fourteenth amendment was implicated when the state prohibited sexual intercourse between a stepparent and a stepchild of the opposite sex but not a stepparent and stepchild of the same sex, although the statutes at issue, namely, General Statutes 46b21 and 53a72a (a)(2), were not facially clear as to whether they prohibited only heterosexual intercourse or both heterosexual and homosexual intercourse. See id., at 67677, 894 A.2d 376. The Appellate Court concluded that, because the civil union law does not prohibit a stepparent from entering into a civil union with a stepchild of the same sex; see General Statutes 46b38cc; the legislature could not have intended for 53a72a (a)(2) to prohibit sexual relations between such persons. See id., at 678, 894 A.2d 376. The court thus concluded that kindred persons engaged in homosexual relations are similarly situated to those engaged in heterosexual relations. Id. The court went on to conclude that, although sexual orientation is not a suspect classification under the federal equal protection clause; id., at 684, 894 A.2d 376; there was no rational basis for prohibiting heterosexual relations between stepparent and stepchild while permitting homosexual relations between such persons. See id., at 68594, 894 A.2d 376. Thus, the court concluded that the right of the defendant, who had been convicted under 53a72a (a)(2) for having heterosexual relations with his stepchild, to equal protection had been violated by virtue of his conviction under that statute. Id., at 694, 894 A.2d 376. The Appellate Courts equal protection analysis appeared to be dictum, however, because the court had reversed the defendants conviction on another, nonconstitutional ground. See id., at 695, 894 A.2d 376 (Schaller, J., concurring) (majority should not have addressed constitutional issue because there was nonconstitutional ground on which to dispose of case).
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See, e.g., Lofton v. Secretary of the Dept. of Children & Family Services, supra, 358 F.3d at 818;Richenberg v. Perry, 97 F.3d 256, 260 (8th Cir.1996), cert. denied sub nom. Richenberg v. Cohen, 522 U.S. 807, 118 S.Ct. 45, 139 L.Ed.2d 12 (1997); Thomasson v. Perry, 80 F.3d 915, 928 (4th Cir.), cert. denied, 519 U.S. 948, 117 S.Ct. 358, 136 L.Ed.2d 250 (1996); Steffan v. Perry, 41 F.3d 677, 684 n. 3 (D.C.Cir.1994); High Tech Gays v. Defense Industrial Security Clearance Office, 895 F.2d 563, 571(9th Cir.1990); BenShalom v. Marsh, 881 F.2d 454, 464 (7th Cir.1989), cert. denied sub nom. BenShalom v. Stone, 494 U.S. 1004, 110 S.Ct. 1296, 108 L.Ed.2d 473 (1990); Woodward v. United States, 871 F.2d 1068,1076 (Fed.Cir.1989), cert. denied, 494 U.S. 1003, 110 S.Ct. 1295, 108 L.Ed.2d 473 (1990). But see Able v. United States, 968 F.Supp. at 864 (stating in dictum that [h]omosexuals meet the criteria of a group warranting heightened protection under the equal protection clause); Jantz v. Muci, supra, 759 F.Supp. at 155051 ([t]here is ... no way to ... reach any conclusion other than that discrimination based on sexual orientation is inherently suspect). These federal circuit courts either relied on Bowers explicitly or relied on cases that were predicated on Bowers. E.g., Richenberg v. Perry, 97 F.3d 256, 26061 n. 5 (8th Cir.1996) (relying on cases predicated on Bowers ), cert. denied sub nom. Richenberg v. Cohen, 522 U.S. 807, 118 S.Ct. 45, 139 L.Ed.2d 12 (1997); High Tech Gays v. Defense Industrial Security Clearance Office, 895 F.2d 563, 571 (9th Cir.1990) (relying on Bowers );Woodward v. United States, 871 F.2d 1068, 1076 (Fed.Cir.1989) (relying on Bowers ), cert. denied, 494 U.S. 1003, 110 S.Ct. 1295, 108 L.Ed.2d 473 (1990). Subsequent to Lawrence, several federal circuit courts have held that gay persons are not a suspect class. Those cases, however, generally have relied upon pre-Lawrence case law; see, e.g., Scarbrough v. Morgan County Board of Education, 470 F.3d 250, 261 (6th Cir.2006) (citing 1997 case from Sixth Circuit Court of Appeals and stating that, [i]nasmuch as homosexuality is not a suspect class in this circuit, we cannot hold that persons who associate with homosexuals constitute a suspect class); Citizens for Equal Protection v. Bruning, 455 F.3d 859, 866 (8th Cir.2006) (discussing Romer and concluding that the Supreme Court has never ruled that sexual orientation is a suspect classification for equal protection purposes); Johnson v. Johnson, 385 F.3d 503, 532 (5th Cir.2004) ([n]either the Supreme Court nor this court has recognized sexual orientation as a suspect classification [or protected group]); Lofton v. Secretary of Dept. of Children & Family Services, supra, 358 F.3d at 818 (citing pre-Lawrence circuit court cases and stating that all of [the] ... circuits that have considered the question have declined to treat homosexuals as a suspect class); and, like the pre-Lawrence line of cases, they suffer from a complete lack of analysis of the factors relevant to a determination of whether gay persons are a class entitled to suspect or quasi-suspect classification. Although the court in Romer stated that the state constitutional amendment at issue violated the federal equal protection clause because the amendment did not bear a rational relationship to a legitimate governmental purpose; Romer v. Evans, supra, 517 U.S. at 635, 116 S.Ct. 1620; courts and commentators alike have opined that the standard that the court applied in Romer was more akin to heightened scrutiny than rational basis review. See Lawrence v. Texas, supra, 539 U.S. at 580, 123 S.Ct. 2472 (OConnor, J., concurring in the judgment) (noting that court applied a more searching form of rational basis review in striking down constitutional amendment in Romer ); see also E. Gerstmann, supra, c. 6, at p. 136 ([o]bviously, the Supreme Court was actually applying a test far stricter than rational-basis scrutiny [in Romer ]); cf. In re Marriage Cases, supra, 49 Cal.Rptr.3d at 744 (Kline, J., concurring and dissenting) (a fair reading of Lawrence renders it impossible to think that the courts failure to explicitly state that it was applying strict scrutiny means it did not do so); L. Tribe, Lawrence v. Texas: The Fundamental Right that Dare Not Speak Its Name, 117 Harv. L.Rev. 1893, 1917 (2004) (the strictness of the [c]ourts standard in Lawrence, however articulated, could hardly have been more obvious). At least two other state courts of last resort, without deciding whether sexual orientation is a suspect or quasi-suspect class, have determined that a statutory ban on same sex marriage violates their state constitutions; Baehr v. Lewin, 74 Haw. 530, 58083, 852 P.2d 44 (1993) (statutes that exclude same sex couples from marriage discriminate on basis of sex and, therefore, are subject to strict scrutiny under equal protection clause of Hawaii constitution); Goodridge v. Dept. of Public Health, supra, 440 Mass. at 331, 798 N.E.2d 941 (prohibiting same sex couples from marrying fails rational basis scrutiny under Massachusetts constitution); and two others have concluded that same sex couples are constitutionally entitled to the same rights as married couples without expressly deciding whether the legislature must permit same sex couples to marry. Lewis v. Harris, supra, 188 N.J. at 45760, 908 A.2d 196 (holding under New Jersey constitution that legislature must provide same sex couples with same rights as married couples but concluding that it would be premature to decide whether same sex marriage is required prior to legislative response to courts decision); Baker v. State, supra, 170 Vt. at 224, 744 A.2d 864 (holding under Vermont constitution that same sex couples are entitled to same benefits, protections and security incident to marriage but explaining that, because plaintiffs claims focused primarily [on] the consequences of official exclusion from those rights, court need not address claim that same sex marriage is constitutionally required). In addition, one state intermediate appellate court has concluded that gay persons comprise a suspect class entitled to special constitutional protection. Tanner v. Oregon Health Sciences University, 157 Or.App. 502, 524, 971 P.2d 435 (1998). But cf. Standhardt v. Superior Court, supra, 206 Ariz. at 283, 77 P.3d 451 (fundamental right of marriage does not include right to marry same sex partner under Arizona constitution). Because we focus on the plaintiffs claim that they comprise a quasi-suspect class, however, we discuss only those cases that have determined whether gay persons are a suspect or quasi-suspect class.
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Although the Kansas Supreme Court decided the case under the Kansas constitution, the court noted that the same standard applied for deciding claims under the analogous provisions of the federal constitution. See State v. Limon, supra, 280 Kan. at 301, 122 P.3d 22. The court therefore engaged in no independent state constitutional analysis. The court in Limon acknowledged that, although Romer involved an equal protection claim, Lawrence was decided on due process grounds. State v. Limon, supra, 280 Kan. at 287, 122 P.3d 22. The court stated, however, that [d]espite not deciding the case on equal protection grounds and never explicitly identifying the standard utilized for its due process analysis, the majority in Lawrence had approvingly cit[ed] and discuss[ed] the equal protection analysis in Romer .... Id. Consequently, the court in Limon relied on both Romer and Lawrence in support of its conclusion that statutes discriminating against gay persons are subject to rational basis review. See id. The third member of the panel in Dean, Judge John M. Ferren, undertook a comprehensive analysis of the plaintiffs claim that gay persons are a suspect or quasi-suspect class for equal protection purposes. See Dean v. District of Columbia, supra, 653 A.2d at 33455 (Ferren, J., concurring in part and dissenting in part). Judge Ferren ultimately concluded that the case should be remanded for a trial, following which the trial court initially would decide whether strict or heightened scrutiny of the marriage statute is required, and whether the District of Columbia has demonstrated a compelling or substantial enough governmental interest to justify refusing [the plaintiffs] a marriage license. Id., at 358 (Ferren, J., concurring in part and dissenting in part). Because the court in Andersen previously had concluded that the equal protection provisions of the Washington state constitution provide the same level of protection as the equal protection provisions of the federal constitution, the court did not undertake an independent state constitutional analysis. Andersen v. King County, supra, 158 Wash.2d at 18, 138 P.3d 963. We note that, for purposes of the California constitution, classifications are either suspect or nonsuspect; the former are subject to strict scrutiny and the latter are subject to rational basis review. In re Marriage Cases, supra, 43 Cal.4th at 832, 76 Cal.Rptr.3d 683, 183 P.3d 384. Because there is no quasi-suspect classification under the California constitution, there is no intermediate level of review. See id., at 832 n. 55, 76 Cal.Rptr.3d 683, 183 P.3d 384. Neither the plaintiffs nor the defendants contend that the history of this states equal protection provisions, the fifth factor to be considered under Geisler, bears materially on the determination of whether gay persons are a quasi-suspect class. We therefore turn to the sixth Geisler factor, namely, contemporary economic and sociological considerations. As we explain more fully in part VII of this opinion, the states reasons for the statutory prohibition against same sex marriage are indeed insufficient to satisfy heightened or intermediate scrutiny. Because of the significance of marriage in our society, the freedom to marry is an extraordinarily important right for all persons who wish to exercise it. As the Alliance for Marriage acknowledged in its amicus brief in support of the defendants, children reared by married couples and married couples themselves benefit greatly from marriageapart from any legal benefits conferred on the family. Benefits to the married couple include greater longevity, greater wealth, more fulfilling sexual relationships, and greater happiness. In this regard, the following observation of Connecticut Catholic Conference, Inc., which filed an amicus brief in support of the defendants, is relevant. In our culture, there has been a consensus on ... [the] unique ethical foundations [of marriage]: that the union should be for life (permanency), that the union should be exclusive (fidelity), and that the love that sustains and nurtures the union should be characterized by mutual support and self-sacrifice (selflessness). These ideals apply equally to committed same sex and committed opposite sex couples who wish to marry. Several of the plaintiffs in the present case are parents of young children. In their affidavits filed in support of their motion for summary judgment, those plaintiffs share the concern that the exclusion of their families from the institution of marriage will have an adverse effect on their children, who, understanding the social and cultural significance of marriage, have been or will be forced to explain to their friends and others why their parents cannot marry. As one of the plaintiffs, J.E. Martin, stated: We want our children to know that their family is as secure as their best friends families and that it is equal in societys eyes.... We know what married means, our neighbors and friends know what it means, and our children [now eleven and eight years old] know what it means. Marriage means a committed couple, sharing love, sharing responsibilities, supporting each other, which is what we are and what we do. Another plaintiff, Jeffrey Busch, speaking on behalf of himself and his partner, Stephen Davis, explains: As our son Eli [now age six] grows up, we plan to convey to him that there are all kinds of families, and our family is as legitimate as any other. But I dont want Eli to have to explain to anyone who asks that what his parents have is something that is like a marriage, something that is almost a marriage. I dont want Eli to feel different than other kids. He should not have to grow up feeling that his family is not as good as his friends famil[ies] because his parents are not permitted to marry. Without equal access to marriage, [we] will someday have to explain to Eli that this is because, under Connecticut law, we are deemed to be a less valid family.
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The defendants also rely on the states interest in providing rights to same sex couples incrementally as an additional justification for the statutory bar on same sex marriage. For purposes of the present case, however, characterizing the states interest in terms of changing the law incrementally is simply another way of asserting that the state currently has an interest in maintaining the status quo out of respect for tradition. We therefore see no need to treat this proffered reason separately from the states asserted interest in tradition. Under the standard of review applicable to statutes that discriminate against quasi-suspect classes, we consider only the reasons that actually motivated the legislature to create the statutory classification at issue. See United States v. Virginia, supra, 518 U.S. at 53233, 116 S.Ct. 2264. Consequently, although several amici curiae, as well as Justice Zarella in his dissenting opinion have articulated reasons in justification of our statutory scheme limiting marriage to opposite sex couples in addition to those identified by the defendants, we limit our review to the reasons that, in fact, prompted the legislature to enact the civil union law. We note, however, that none of those additional reasons proffered in support of our statutory scheme constitutes the kind of exceedingly persuasive justification required to warrant the classification at issue in the present case, including Justice Zarellas assertion regarding the states purported interest in privileg[ing] and regulat[ing] procreative conduct. To whatever extent that interest might constitute a rational basis for limiting marriage to opposite sex couples, it certainly does not represent a strong or overriding reason for the classification because allowing same sex couples to marry in no way undermines any interest that the state may have in regulating procreative conduct between opposite sex couples. Furthermore, contrary to the unsupported suggestion of Justice Zarella, we most certainly do not believe that anyone who opposes same sex marriage must harbor animus toward gay persons; footnote 12 of Justice Zarellas dissenting opinion; and nothing in this opinion warrants such a suggestion. We, no less than Justice Zarella, appreciate the fact that same sex marriage is a subject about which persons of good will reasonably and sincerely disagree. This conclusion is amply supported by the legislative history of the civil union law. Although a majority of the legislators ultimately agreed to grant same sex couples all of the rights and privileges that married couples enjoy, creating a separate legal entity for that purpose was the overarching concern of many of the legislators who spoke and voted in favor of the measure recognizing civil unions. As one legislator explained, the critical task before the General Assembly was to determine how to extend rights to same sex couples in such a manner that permitted members of the legislature to return to their respective districts and inform their constituencies that we didnt ... do it in a way that you [would find] offensive either to your core beliefs, to your religious beliefs, or to your view of what marriage is. 48 H.R. Proc., Pt. 7, 2005 Sess., p. 2002, remarks of Representative Robert M. Ward. We note that the defendants legislative deference argument was used by the commonwealth of Virginia in Loving v. Virginia, supra, 388 U.S. at 1, 87 S.Ct. 1817, to urge the United States Supreme Court to uphold the Virginia law barring interracial marriage. See M. Bonauto, S. Murray & B. Robinson, The Freedom to Marry for SameSex Couples: The Reply Brief of Plaintiffs Stan Baker et al. in Baker et al. v. State of Vermont, 6 Mich. J. Gender & L. 1, 40 n. 143 (1999) (commonwealth argued that court had no authority to evaluate the wisdom of Virginias race restriction in marriage, and that the social theories and research surrounding interracial marriage were too complex and controversial for judicial, rather than legislative review). The argument was not persuasive in Loving, and it is not persuasive here. Although legislative enactments generally are entitled to deference, our equal protection jurisprudence, in particular, the suspectness test itself, incorporates that important principle. Until relatively recently, it remained the prevailing doctrine that government, both federal and state, could withhold from women opportunities accorded men so long as any basis in reason could be conceived for the discrimination. United States v. Virginia, supra, 518 U.S. at 531, 116 S.Ct. 2264. The state would have us apply a test under which the statutory ban on same sex marriage would survive judicial scrutiny so long as there were any basis in reason for the prohibition. As a quasi-suspect class, gay persons, no less than women, are entitled to a more searching judicial review of that statutory prohibition, as well as any other classification that singles them out for discriminatory treatment. As we previously observed, in his dissenting opinion, Justice Borden asserts that [i]t is the unfortunate consequence of the majority opinion that it has short-circuited the democratic process. For the reasons that we set forth previously; see footnote 59 of this opinion; we disagree with Justice Bordens criticism. We note, however, that, like Justice Borden, we take our responsibility as judges very seriously, with a full appreciation of the proper limits of the role of the judiciary in our tripartite form of government. Although that role frequently entails the exercise of judicial restraint, we cannot shirk what we view as our duty to strike down an unconstitutional statute in the name of such restraint, or because our decision may be controversial or unpopular in some quarters. We are content that, ultimately, our decision, like that of Justice Borden, will be judged on the basis of its adherence to fundamental constitutional principles and not on any suggestion that we are either unaware or unmindful of the courts proper role in our democratic system. We note that this case only addresses the states prohibition against same sex marriage, a ban that we conclude violates the state constitution. Our holding does not affect the recognition of civil unions in this state.
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Article first, 1, of the constitution of Connecticut provides: All men when they form a social compact, are equal in rights; and no man or set of men are entitled to exclusive public emoluments or privileges from the community. Article first, 20, of the constitution of Connecticut, as amended by articles five and twenty-one of the amendments, provides: No person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his or her civil or political rights because of religion, race, color, ancestry, national origin, sex or physical or mental disability. I use the term heightened scrutiny in this dissent to refer collectively to strict scrutiny and intermediate level scrutiny. Like the majority, for convenience and economy of language, I use the term gay persons to refer to both gay men and lesbians. See footnote 2 of the majority opinion for the names of all the plaintiffs involved in this appeal. In reaching this conclusion, I emphasize that, if I were a legislator voting on legislation, I would recognize the legitimacy of the plaintiffs aspirations to have the legal status of marriage and would vote accordingly. I am, however, not a legislator; I am a judge, and my analysis of the applicable legal principles leads me to conclude, contrary to the majority, that the legislation at issue is not unconstitutional. That is where my obligation must end, and that of the legislature begin. As Justice Madsen stated, writing for the majority in Andersen v. King County, 158 Wash.2d 1, 8, 138 P.3d 963 (2006), [p]ersonal views must not interfere with the judges responsibility to decide cases as a judge and not as a legislator. I also agree with the majority that the plaintiffs are similarly situated with respect to opposite sex couples regarding the right to marry. The New York Times is reported to have the third largest newspaper circulation in the nation, exceeding one million copies daily. See http:// www.huffingtonpost.com/2008/04/28emnew-york-timesem-cirul_n_ 98991.html (last visited October 8, 2008) (copy contained in the file of this case with the Supreme Court Clerks Office). Compare Brown v. Board of Education, 347 U.S. 483, 49394, 74 S.Ct. 686, 98 L.Ed. 873 (1954), for example, in which the United States Supreme Courts statement of how racial segregation affected the AfricanAmerican plaintiffs, by making them feel generally inferior to white persons, was based, not on the Supreme Courts assertion of fact, but on the factual finding of the United States District Court, which was, in turn, based on the famous study, conducted by the sociologist, Kenneth Clark, that had been introduced into evidence in the trial court. The other state is California, which calls its statutory scheme domestic partnership, rather than civil union. See In re Marriage Cases, 43 Cal.4th 757, 779, 183 P.3d 384, 76 Cal.Rptr.3d 683 (2008). Nonetheless, I have some doubt that the California domestic partnership statute is truly equivalent to our civil union statute, which equates such a union to marriage in every legal respect but name. By contrast, the California legislation differs from marriage in nine respects. See id., at 805 n. 24, 76 Cal.Rptr.3d 683, 183 P.3d 384. In this respect, I also disagree with the majority opinion that the Vermont and New Jersey courts did not address the name of the status that they mandated for same sex couples. See Baker v. State, supra, 170 Vt. at 19798, 744 A.2d 864 (We hold that the [s]tate is constitutionally required to extend to same-sex couples the common benefits and protections that flow from marriage under Vermont law. Whether this ultimately takes the form of inclusion within the marriage laws themselves or a parallel domestic partnership system or some equivalent statutory alternative, rests with the [l]egislature. [Emphasis added.] ); Lewis v. Harris, supra, 188 N.J. at 423, 908 A.2d 196 ([t]he name to be given to the statutory scheme that provides full rights and benefits to same-sex couples, whether marriage or some other term, is a matter left to the democratic process [emphasis added] ). Indeed, both the Vermont and New Jersey cases should give one pause when considering the premise of the majoritys opinion, namely, that our civil union statute, by defining marriage as the union of a man and a woman, relegates such a union to second class citizenship. It is difficult to read the thoughtful and sensitive decisions of those two courts and conclude that, by deciding that their state constitutions required civil unions but not marriage for same sex couples, they were denigrating the plaintiffs whose claims they vindicated in large part. In this regard, I acknowledge the deeply held feelings and perceptions of the plaintiffs that, in their view, a civil union is of lesser social status and inferior to a marriage. I respect those feelings and perceptions. We do not know, however, that this is the prevailing view of the citizenry in general. Judge Hand, quoting Oliver Cromwell, stated: I should like to have every court begin, I beseech ye ... think that ye may be mistaken. L. Hand, Morals in Public Life (1951), in The Spirit of Liberty 225, 230 (Irving Dillard ed., 1952).
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The demographic trend since 1990 of same sex couples living together and identifying themselves as such, and the public acceptance of that trend, appears to track what happened with opposite sex couples living together. According to the Williams Institute of the University of California at Los Angeles (UCLA), which analyzed trends among same-sex couples using the 1990 and 2000 United States decennial census enumerations along with data from the 2002 through 2006 American Community Surveys, nationally [t]he number of same-sex couples reporting themselves as unmarried partners has quintupled since 1990 from 145,000 to nearly 780,000. G.J. Gates, Geographic Trends Among SameSex Couples in the U.S. Census and the American Community Survey, The Williams Institute, UCLA School of Law (November 2007) p. 1. This is an increase twenty-one times faster than the United States population increase from 1990 to 2006. Id. One of the two important factors contributing to increases in same sex couples is [c]oming out. National polls since the early 1990s clearly demonstrate an increased acceptance of lesbian and gay people and same-sex couples in the United States population. This acceptance results in increasing numbers of lesbians and gay men being more forthcoming about their sexual orientation and living arrangements in surveys. Id. In the New England states, there has been a 398 percent increase in the number of same sex couples living together from 1990 to 2006. Id., at p. 10. In Connecticut, the increase is generally in line with that percentage increase: the number of same sex unmarried partner couples has increased from 2088 in 1990, to 9540 in 2006. Id., at p. 17. This nationwide trend, mirrored in our state and our neighboring New England states, undermines the majoritys certainty that a civil union, which is the legal equivalent of marriage for all of those same sex couples, is undoubtedly of lesser social status than a marriage. Accordingly, the majoritys suggestion that my interpretation of the political power factor as it applies to this case would mean that neither women nor AfricanAmericans would be entitled to heightened scrutiny is both wrong and irrelevant. That is, as I explain more fully in part II of this dissent, under our state constitution classifications based on gender or race are specifically entitled to strict scrutiny. Therefore, the majoritys suggestion that my analysis of the political factor under the state constitution would mean that neither women nor AfricanAmericans would be entitled to heightened scrutiny is unwarranted. Moreover, I am deciding this case as a justice of the Connecticut Supreme Court in 2008 under our state constitution. I am not deciding, and have no authority to decide, the different cases of gender discrimination in 1973, or racial discrimination in 1954, as a justice of the United States Supreme Court under the federal constitutionalthough I agree that in both cases, the court correctly accorded heightened scrutiny to those classes. Consequently, the majoritys criticism of how my analysis in the present case under the state constitution would or would not have decided those cases is simply beside the point. Engaging in retroactive hypothetical decision making does not strike me as a useful method of adjudication. I further note that race classifications were accorded heightened scrutiny before the court had even evolved a tiered analysis of equal protection claims, and before the court had set forth its four-pronged inquiry in Frontiero v. Richardson, 411 U.S. 677, 686 n. 17, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973). See Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954). General Statutes 53a181j provides: (a) A person is guilty of intimidation based on bigotry or bias in the first degree when such person maliciously, and with specific intent to intimidate or harass another person because of the actual or perceived race, religion, ethnicity, disability, sexual orientation or gender identity or expression of such other person, causes serious physical injury to such other person or to a third person. (b) Intimidation based on bigotry or bias in the first degree is a class C felony. General Statutes 53a181k provides: (a) A person is guilty of intimidation based on bigotry or bias in the second degree when such person maliciously, and with specific intent to intimidate or harass another person because of the actual or perceived race, religion, ethnicity, disability, sexual orientation or gender identity or expression of such other person, does any of the following: (1) Causes physical contact with such other person, (2) damages, destroys or defaces any real or personal property of such other person, or (3) threatens, by word or act, to do an act described in subdivision (1) or (2) of this subsection, if there is reasonable cause to believe that an act described in subdivision (1) or (2) of this subsection will occur. (b) Intimidation based on bigotry or bias in the second degree is a class D felony. General Statutes 53a181l provides: (a) A person is guilty of intimidation based on bigotry or bias in the third degree when such person, with specific intent to intimidate or harass another person or group of persons because of the actual or perceived race, religion, ethnicity, disability, sexual orientation or gender identity or expression of such other person or persons: (1) Damages, destroys or defaces any real or personal property, or (2) threatens, by word or act, to do an act described in subdivision (1) of this subsection or advocates or urges another person to do an act described in subdivision (1) of this subsection, if there is reasonable cause to believe that an act described in said subdivision will occur. (b) Intimidation based on bigotry or bias in the third degree is a class A misdemeanor. I recognize that, as the majority points out, General Statutes 46a81r provides that none of the nondiscrimination statutes mentioned previously shall be deemed or construed (1) to mean that the state ... condones homosexuality [as a] lifestyle, (2) to authorize the promotion of homosexuality ... in educational institutions or require [its] teaching ... as an acceptable lifestyle, (3) to authorize ... affirmative action programs [based on] homosexuality ... (4) to authorize [same sex marriage], or (5) to establish sexual orientation as a specific and separate cultural classification in society. I disagree with the majority, however, that the inclusion of this section in the gay rights act means that the legislature has declared, as a matter of state policy, that same sex
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Kerrigan v. Commissioner of Public Health, 289 Conn. 135 (2008) 957 A.2d 407 relationships are disfavored. First, 46a81r must be viewed in the context of the act as a whole, which represented the most significant advancement in the movement for gay rights in the history of this state. Second, the subsequent enactment of the civil union statute belies any notion that Connecticut disfavors same sex relationships. Third, as I explain later in this footnote, this assertion by the majority ignores the more recent perceptions of influential legislators about the current state of the views of the citizenry toward same sex couples. Finally, I read 46a81r as what it says: the state is neutral, not hostile, toward homosexuality. In other words, the inclusion of this section makes clear that, although the gay rights act was intended to remedy past discrimination against gay persons, it was not intended to favor the group over any other. Indeed, the remarks of Representative Richard D. Tulisano, in explaining 46a81r on the floor of the House of Representatives in 1991, are consistent with that view. He indicated that in this political document, there is no intent here to say that ... by passing and expressing our desire to protect people ... it is ... necessarily [to] mean to say we affirmatively vote for that particular lifestyle, and as a political document that is left there to tell people, that is something for each individual to make up for themselves, but the state is not going to be doing it in that particular area. 34 H.R. Proc., Pt. 7, 1991 Sess., pp. 261617. Representative Tulisano also explained that this language was inserted to rebut false ... pieces of literature that had suggested to the contrary, and that [the act] deals with stopping acts against people, to protect people from others, to make sure people arent held back from their rights as individuals, as humans that they should be entitled to, not to grant particular rights. Id., at p. 2525. In this connection, I also note that the majority cites, as evidence of a development that many view as reflecting widespread opposition to equal rights for gay persons, the fact that twenty-five states have passed constitutional amendments prohibiting same sex marriage. I disagree with the majoritys use of this as evidence of such opposition. It is simply unfair to conflate opposition to same sex marriage with bigotry, as the majority suggests. Persons may have deeply and conscientiously held views about the desire to retain the traditional definition of marriage without being guilty of opposing equal rights for gay persons based on their sexual orientation. Until a few decades ago, it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of [a] different sex. A court should not lightly conclude that everyone who held [or holds] this belief was [or is] irrational, ignorant or bigoted. Hernandez v. Robles, 7 N.Y.3d 338, 361, 855 N.E.2d 1, 821 N.Y.S.2d 770 (2006). The majoritys insistence that the votes of the people of twenty-five states to retain the traditional definition of marriage means that they are guilty of opposing equal rights for gay persons, calls to mind the saying: To a hammer, everything looks like a nail.
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The other state is California. See footnote 9 of this opinion. Indeed, in 2005, the judiciary committee had raised a gay marriage bill; Judiciary Committee Raised Bill No. 963, An Act Concerning Marriage Equality; but reported out of committee the civil union bill instead. More specifically, when asked about this, Representative Lawlor remarked that, everyone in the building was of the opinion that passage of a gay marriage bill was inevitable. Videotape: Capitol News Briefing with the Chairs of the Judiciary Committee on the Same Sex Marriage Bill, supra. In listing this demonstration of political support for the bill, I have attempted to confine myself to public officials and to groups that would not ordinarily be considered to be partisan on the issue of gay marriage. In addition, however, support was registered by three groups that could be considered to be partisan, namely, Love Makes A Family, the Hartford Gay and Lesbian Health Collaboration, and Parents, Families, Friends of Lesbians and Gays, as well as twenty named individuals. Registering opposition were two partisan groups, namely, The Institute for Marriage and Public Policy, and the Hartford Chapter of the Family Institute of Connecticut, as well as two members of the clergy and seventeen named individuals. The majority criticizes me for citing both the news conference accompanying the introduction of the 2007 gay marriage bill and the press release of the cochairs of the judiciary committee following the favorable action on it by the committee. I acknowledge that my use of these materials is unusual, but I see nothing in them that seems to be the stuff of factual controversy. As the majority states, in quoting Justice Felix Frankfurter in Watts v. Indiana, 338 U.S. 49, 52, 69 S.Ct. 1347, 93 L.Ed. 1801 (1949), we should not be ignorant as judges of what we know as men [and women]. Furthermore, the majority feels no similar compunction about citing numerous websites for factual assertions in support of its argument. The decision of the Hawaii Supreme Court in 1993, which was subsequently rendered ineffectual by virtue of a state constitutional amendment, does not belong in this category. See Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44, reconsideration granted in part, 74 Haw. 650, 875 P.2d 225 (1993). That case was decided on the ground of the states prohibition against sex discrimination. Id., at 561, 852 P.2d 44. I discuss in part III of this opinion why our states corresponding provision does not apply in the present case. Thus, the majoritys reference to the passage of gay rights legislation in California is irrelevant, because under California constitutional law, the political power factor is irrelevant. Indeed, that point is underscored by the fact that the California Supreme Court did not even mention the passage of that legislation in its state equal protection analysis. See In re Marriage Cases, supra, 43 Cal.4th at 83156, 76 Cal.Rptr.3d 683, 183 P.3d 384.
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Other courts have registered their understanding that the legislative record is highly relevant evidence of the political power of gay persons in determining that gay persons should not be accorded protected status for purposes of equal protection analysis. See, e.g., Conaway v. Deane, supra, 401 Md. at 286, 932 A.2d 571 (Rejecting the plaintiffs argument that they were so politically powerless that they required protection from the majoritarian political process. To the contrary, it appears that, at least in Maryland, advocacy to eliminate discrimination against gay, lesbian, and bisexual persons based on their sexual orientation has met with growing successes in the legislative and executive branches of government. Maryland statutes protect against discrimination based on sexual orientation in several areas of the law, including public accommodation, employment, housing, and education. [Internal quotation marks omitted.] ); Andersen v. King County, supra, 158 Wash.2d at 21, 138 P.3d 963 (rejecting, based on recent legislative developments, claim that plaintiffs were politically powerless, noting: [t]he enactment of provisions providing increased protections to gay and lesbian individuals in Washington shows that as a class gay and lesbian persons are not powerless, but, instead, exercise increasing political power); High Tech Gays v. Defense Industrial Security Clearance Office, 895 F.2d 563, 574 (9th Cir.1990) (citing to antidiscrimination legislation passed by numerous states, and regulations enacted by many cities and counties, as basis for conclusion that gay persons are not politically powerless). Furthermore, the majoritys insistence that a Frontiero analysis of the political power factor controls the analysis of that factor in the present case suggests that the plaintiffs would have been granted suspect or quasi-suspect class status under the federal constitution. That suggestion is belied by the fact that the plaintiffs asserted no claim under the federal constitution whatsoever. If the plaintiffs believed that they were entitled to elevated status under federal constitutional law, we would have expected them to have raised such a claim. The majority presents as support for its dismissal of the political power factor the fact that, despite the increased political power of women since Frontiero, that case has not been overruled. As I indicate in the accompanying text of this opinion, no one has ever suggested that it should be, and neither do I. Its holding that courts should accord heightened scrutiny to equal protection claims based on gender discrimination was correct, and remains correct. It is also true, however, that the court relied on Frontiero to apply heightened scrutiny to an equal protection claim based on gender discrimination, where the group claiming discrimination consisted of men; see Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976); despite the fact that men share none of the factors of discrimination that motivated the court to decide Frontiero. The most plausible explanation for this is that, once a court grants heightened protection to a particular classe.g., genderit must logically extend that protection to any subgroup of that class even if that subgroup has never been the subject of discrimination. Similarly, once a court has granted heightened protection to a class, it simply will not go back and revisit that protection based on the notion that one or more of the factors that motivated the grant in the first place might no longer be present. Moreover, I emphasize that we are deciding this case under the state constitution, and gender discrimination is already afforded strict scrutiny thereunder. Thus, the question of why, if the political power factor is important, the court has never considered overruling Frontiero, is purely academic under our state constitution. I also disagree with the majority that removing the barrier to same sex marriage is no different than the action taken by the United States Supreme Court in Loving v. Virginia, [388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967) ], when it invalidated laws barring marriage between persons of different races. The two cases are in no way similar. First, it is clear from the courts reasoning in Loving that the right to marry that it was considering was that between a man and a woman; hence the courts reliance on the institution of marriage as necessary to the survival of the human race. Id., at 12, 87 S.Ct. 1817. Second, the court in Loving correctly determined that the antimiscegenation statute in question there was clearly aimed at the perpetuation of white supremacy. It cannot reasonably be contended that our marriage statutes, which have existed for centuries along with those of every other state, were aimed at perpetuating heterosexual, rather than homosexual, supremacy. See Baker v. State, supra, 170 Vt. at 22627, 744 A.2d 864 ([p]laintiffs have not demonstrated that the exclusion of same-sex couples from the definition of marriage was intended to discriminate against ... lesbians and gay men, as racial segregation was designed to maintain the pernicious doctrine of white supremacy). Third, the statute in Loving excluded mixed race opposite sex couples from entering a social institution that, by all other traditional criteria, they were entitled to enter. Thus, the decision in Loving did not expand the preexisting institution of marriage; it merely removed a racial barrier to entry. Our marriage and civil union statutes do no such thing. They simply retain the traditional definition of marriage, and reflect the fact that the state has not yet chosen to expand the right to enter into it to same sex couples. Most of the exceptions are simply to avoid duplication of terminology where the statutes already include a reference to civil union as well as marriage. These are: General Statutes 745 (certificate of marriage or civil union); General Statutes 17b137a (requiring social security number on marriage or civil union license); General Statutes 46b20 to 46b34, inclusive (marriage license provisions); and General Statutes 46b150d (permitting emancipated minor to marry or enter civil union). The other exceptions are: General Statutes 45a727a (4) (current public policy of state now limited to marriage between man and woman); and General Statutes 46b38nn (marriage defined as union of man and woman). The plaintiffs also rely on article first, 10, of the constitution of Connecticut, which provides: All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay. That constitutional provision, however, does not provide support for the
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Kerrigan v. Commissioner of Public Health, 289 Conn. 135 (2008) 957 A.2d 407 plaintiffs claim. We have interpreted article first, 10, as a provision protecting access to our states courts, which does not itself create new substantive rights. Moore v. Ganim, supra, 233 Conn. at 573, 660 A.2d 742. We generally have held that article first, 10, prohibits the legislature from abolishing or significantly limiting common law and certain statutory rights that were redressable in court as of 1818, when the constitution was first adopted, and which were incorporated in that provision by virtue of being established by law as rights the breach of which precipitates a recognized injury.... (Internal quotation marks omitted.) Id., at 57374, 660 A.2d 742. In sum, this constitutional provision provides no support for the plaintiffs claim that the fundamental right to marry includes the right to same sex marriage.
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See footnote 28 of this opinion for the text of article first, 10, of the constitution of Connecticut. Article first, 8, of the constitution of Connecticut provides in relevant part: No person shall ... be deprived of life, liberty or property without due process of law.... In this connection, I note my agreement with Justice Zarellas trenchant criticism of the majoritys Geisler analysis in part IV of his dissenting opinion. I emphasize here that this conclusion means only that the civil union statute, which defines marriage as the union of a man and woman; General Statutes 46b38nn; does not deprive the plaintiffs of a fundamental right. The legislature is free, of course, to expand the legal definition of marriage to include persons of the same sex. In their complaint, the plaintiffs seek a judgment declaring that, [t]o the extent that any statute, regulation, or common-law rule ... is applied to deny otherwise qualified individuals from marrying because they wish to marry someone of the same sex or are gay or lesbian couples, such statutes, regulations, and common-law rules violate the equal protection provisions ... of the Connecticut [c]onstitution. There is no dispute in this case that, under this states common law and statutes governing marriage, same sex couples are barred from marriage. For convenience, we refer to these laws collectively as marriage laws. See General Statutes 46b38nn. See footnotes 5 and 6 of the majority opinion for the relevant text of these constitutional provisions. The plaintiffs are identified in footnote 2 of the majority opinion. E.g., Zablocki v. Redhail, 434 U.S. 374, 384, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978); Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967); see also Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942). See In re Marriage Cases, 43 Cal.4th 757, 81820, 183 P.3d 384, 76 Cal.Rptr.3d 683 (2008). I also believe that the fundamental right to marriage is protected by the preamble to the state constitution, which provides in relevant part: The People of Connecticut ... do, in order more effectually to define, secure, and perpetuate the liberties, rights and privileges which they have derived from their ancestors; hereby, after a careful consideration and revision, ordain and establish the ... constitution and form of civil government. (Emphasis added.) It is arguable that this provision would prevent the legislature from redefining marriage to include same sex couples. See footnote 19 of this opinion. A fortiori, it would prevent the legislature from abolishing the institution altogether. The plaintiffs state baldly that procreation [n]ever has been the purpose of marriage. (Emphasis added.) In support of this statement, they point to the civil union law enacted in 2005, which grants the same rights and privileges as marriage, and to the fact that proof of the ability to procreate never has been a requirement of marriage. I address these arguments in part III of this dissenting opinion. It is sufficient at this point in my analysis to state that it is impossible to contemplate the development of the institution of traditional marriage between one man and one woman without recognizing that responsible procreation and the rearing of children were central to that development. If the purpose of marriage was not to promote and regulate procreative conduct, what was its purpose? The plaintiffs argue that the states are precluded from recognizing a privileged status for heterosexual conduct by virtue of the United States Supreme Courts decision in Lawrence v. Texas, 539 U.S. 558, 578, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), in which the court concluded that a state constitutionally cannot criminalize homosexual conduct between two consenting adults. The plaintiffs reading of Lawrence is overly broad. The fact that states constitutionally cannot criminalize private sexual conduct between two consenting adults does not mean that they are precluded from promoting the public interest in responsible procreation. In addition, see Rostker v. Goldberg, 453 U.S. 57, 79, 101 S.Ct. 2646, 69 L.Ed.2d 478 (1981) (requirement that men, but not women, register for draft did not create invidious gender classification but rather realistically reflects the fact that the sexes are
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Kerrigan v. Commissioner of Public Health, 289 Conn. 135 (2008) 957 A.2d 407 not similarly situated [internal quotation marks omitted] ); Ramos v. Vernon, 353 F.3d 171, 179 (2d Cir.2003) (in the context of the class-based equal protection framework, the [United States Supreme] Court has explicitly repudiated complete blindness with regard to gender-based laws, reasoning that, although such laws elicit some suspicion, the physical differences between the sexes are relevant and enduring); McNamara v. Lantz, United States District Court, Docket No. 3:06CV93, 2008 WL 4277790 (D.Conn. September 16, 2008) (male inmate is not similarly situated to female inmates for purposes of prisons medical protocol of providing methadone to female inmates but not male inmates because he cannot become pregnant); J & B Social Club # 1, Inc. v. Mobile, 966 F.Supp. 1131, 1139 (S.D.Ala.1996) (men and women are not similarly situated with respect to prohibition on topless dancing); Betts v. McCaughtry, 827 F.Supp. 1400, 14051406 (W.D.Wis.1993) (because equal protection clause does not prevent different treatment of men and women when their situations are different in fact, prison rules that accorded certain privileges to female inmates but not to male inmates were not unconstitutional), affd, 19 F.3d 21 (7th Cir.1994); Jane L. v. Bangerter, 794 F.Supp. 1537, 1549 (D.Utah 1992) (sexes are not biologically similarly situated with respect to abortion statutes); State v. Wright, 349 S.C. 310, 313, 563 S.E.2d 311 (2002) ( [a] law will be upheld [when] the gender classification realistically reflects the fact that the sexes are not similarly situated in certain circumstances).
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Contrary to the majoritys assertion that, [a]lthough it may be argued that the states interest in regulating procreative conduct constitutes a rational basis for limiting marriage to opposite sex couples ... that rationale does not answer the entirely different question of whether same sex and opposite sex couples are similarly situated; footnote 19 of the majority opinion; the purpose of the marriage statutes is dispositive of the question of whether same sex couples are similarly situated to opposite sex couples. See part III of the majority opinion ([t]he similarly situated inquiry focuses on whether the [plaintiff is] similarly situated to another group for purposes of the challenged government action [emphasis added; internal quotation marks omitted] ). Courts do not make a generalized determination that classes are similarly situated with respect to all state action, regardless of its purpose. Compare Michael M. v. Superior Court, supra, 450 U.S. at 469, 101 S.Ct. 1200 (men and women are not similarly situated with respect to legislation intended to reduce risk of teenage pregnancy) with United States v. Virginia, 518 U.S. 515, 545, 54654, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996) (women and men are similarly situated with respect to states provision of citizen-soldier training when some women are qualified for such training). As I discuss more fully in the text of this opinion, the majoritys belief that the ability of a couple to conceive children is an insignificant distinction in the marriage context simply begs the central question in this case by assuming that the essence of marriage is a loving and committed relationship. That assumption is unfounded. I recognize that no court expressly has held that same sex couples are not similarly situated to opposite sex couples in this context. As I have indicated in the text of this opinion, however, the majority of courts that have considered the issue have concluded that promoting and regulating procreation is the central concern of marriage. See, e.g., Citizens for Equal Protection v. Bruning, supra, 455 F.3d at 867;Standhardt v. Superior Court, supra, 206 Ariz. at 287, 77 P.3d 451;Morrison v. Sadler, supra, 821 N.E.2d at 25;Conaway v. Deane, supra, 401 Md. at 299300, 932 A.2d 571;Baker v. Nelson, supra, 291 Minn. at 312, 191 N.W.2d 185;Lewis v. Harris, supra, 378 N.J.Super. at 185, 875 A.2d 259;Andersen v. King County, supra, 158 Wash.2d at 37, 138 P.3d 963. The sole basis for the majoritys disagreement with my conclusion that same sex couples and opposite sex couples are not similarly situated in this context is its belief that that procreation does not [define] the institution of marriage; footnote 19 of the majority opinion; although it concedes that procreative conduct plays an important role in many marriages.... Id. Thus, the majority implicitly concedes that, if promoting and regulating procreation were the purpose of marriage, then same sex couples and opposite sex couples would not be similarly situated. It is clear, therefore, that my conclusion is squarely supported by these cases. The majority states that this states bar against same sex marriage effectively precludes gay persons from marrying; (emphasis in original) footnote 24 of the majority opinion; and that [i]f ... the intended effect of a law is to treat politically unpopular or historically disfavored minorities differently than persons in the majority or favored class ... the very existence of the classification gives credence to the perception that separate treatment is warranted for the same illegitimate reasons that gave rise to the past discrimination in the first place. (Citations omitted; emphasis added.) Part I of the majority opinion. The fact that gay persons have been subject to discriminatory conduct in some contexts does not prove, or even imply, however, that same sex couples have been barred from marriage because they are gay. Indeed, gay individuals never have been barred from marriage. Moreover, the existence of a classification based on the ability of a couple to engage in the type of sexual conduct that can result in the birth of a child cannot give credence to the notion that another, invidious classification, i.e., one based on sexual orientation, is justified. I agree with the majority, of course, that our civil union law, like our preexisting marriage laws, purposefully and intentionally distinguishes between same sex and opposite sex couples. Footnote 24 of the majority opinion. Unlike the majority, however, I have explained the reasons why the laws draw this distinction. Those reasons have nothing to do with intentional discrimination against the class of gay individuals. The reasoning of the court in In re Marriage Cases, 43 Cal.4th 757, 83940, 183 P.3d 384, 76 Cal.Rptr.3d 683 (2008), in support of its conclusion to the contrary is entirely conclusory. Like the majority in the present case, the California court confuses an incidental effect of the marriage laws with their purpose. There simply is no evidence that the institution of marriage ever was intended to affect gay persons in any manner whatsoever. Indeed, the majority summarizes the California case by stating that this states bar against same sex marriage effectively precludes gay persons from marrying. (Emphasis in original.) Footnote 24 of the majority opinion. The majority appears to suggest that this courts statement in State v. Long, 268 Conn. 508, 847 A.2d 862, cert. denied, 543 U.S.
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Kerrigan v. Commissioner of Public Health, 289 Conn. 135 (2008) 957 A.2d 407 969, 125 S.Ct. 424, 160 L.Ed.2d 340 (2004), that, [t]o implicate the equal protection [clause] ... it is necessary that the state statute [or statutory scheme] in question, either on its face or in practice, treat persons standing in the same relation to it differently; (emphasis added; internal quotation marks omitted) id., at 534, 847 A.2d 862; means that a person challenging the statute is not required to prove discriminatory intent. See part IV of the majority opinion. To the contrary, the emphasized language merely distinguishes facial equal protection challenges from as applied challenges. It does not dispense with the intent requirement.
12
To the extent that the majority suggests that anyone who opposes same sex marriage must harbor animus toward gay personsan impression conveyed by the prevailing tone of the majority opinionI strongly disagree. For all of the reasons set forth in this opinion, persons of good will can disagree about this matter of great public importance. To suggest otherwise is unwarranted. The majority denies suggesting that opposition to same sex marriage can only be driven by animus toward gay persons. The primary basis for its decision, however, is its conclusion that that the intent of the marriage laws is to treat [a] politically unpopular [and] historically disfavored [minority] differently for illegitimate reasons.... Part I of the majority opinion. The majority also suggests that all state and federal legislation that classifies on the basis of an individuals sexual conduct or orientation is driven by discriminatory animus toward gay persons and is designed to undermine the legitimacy of homosexual relationships, to perpetuate feelings of personal inferiority and inadequacy among gay persons, and to diminish the effect of the laws barring discrimination against gay persons. Part V D 2 of the majority opinion. Finally, the majority suggests that naked legislative preference for opposite sex couples, moral disapproval of same sex couples and private biases against homosexuality are the primary justifications for limiting marriage to one man and one woman. If, contrary to the import of these statements, the majority believes that persons of good will sincerely can believe that there are legitimate reasons for limiting marriage to one man and one woman, it should identify those reasons and take them into account in its analysis. There are a few exceptional examples of same sex marriage in ancient times. See K. Young & P. Nathanson, Marriage la mode: Answering the Advocates of Gay Marriage (2003) ([a]s for Nero and Elgabalus, Roman emperors, they married men but in a contextRomes degenerate aristocracy in which murder was rampant and even a horse could be made a senatorthat few people today, gay or straight, would find edifying), available at http://www.marriageinstitute.ca/images/mmmode.pdf. The majority also ignores the fact that, if consensual, loving commitment among adults is the essence of marriage, then the state has no basis for prohibiting polygamous marriage. The duality of traditional marriage derives from the duality of the sexes. If marriage is genderless, then there is no reasonother than the pure tradition argument that the majority already has rejectedwhy any combination of loving, committed, adult men and women should not be allowed to get married. The plaintiffs contend that this argument is baseless because, unlike the redefinition of marriage to include same sex couples, allowing more than two persons to marry would require a complete restructuring of the laws of civil marriage. The state would not be able to determine under existing laws which spouse would make decisions in the event of incapacity, who would inherit in the event of intestacy, and how custody, visitation, child support, and tax matters would be handled. If marriage is a fundamental right, however, and the essence of marriage is a loving, committed relationship among adults, then an adult has a fundamental right to enter into a loving, committed relationship with other adults. The objections that the plaintiffs raise to polygamous marriage could readily be addressed by agreement among the parties to a polygamous marriage, by litigation or by minor changes to our statutes, similar to those required to accommodate same sex marriage. Surely, the need for such minor changes would not constitute a sufficiently compelling reason to defeat a fundamental right. The majority states that [t]his conclusion is amply supported by the legislative history of the civil union law and cites the remarks of Representative Robert M. Ward during debate on that legislation. Footnote 80 of the majority opinion, citing 48 H.R. Proc., Pt. 7, 2005 Sess., p. 2002. Contrary to the majoritys suggestion, however, Representative Ward did not indicate that there were no good reasons for preserving traditional marriage. Rather, he indicated that the civil union law extended rights to same sex couples in a way that was consistent with his constituents views of what marriage is; 48 H.R. Proc., supra, at p. 2002, remarks of Representative Ward; i.e., an institution designed to privilege and regulate the type of sexual conduct that can result in the birth of a child. In any event, the institution of traditional marriage long predates the civil union law. Even if the majoritys interpretation of Representative Wards remarks were correct, I do not believe that the statements of a single state legislator in 2005 should provide the sole basis for determining the fundamental purpose of a basic civil institution that has existed in innumerable societies over millennia. The majority also states that the defendants expressly have disavowed any claim that the legislative decision to create a separate legal framework for committed same sex couples was motivated by the belief that the preservation of marriage as a heterosexual institution is in the best interests of children, or that prohibiting same sex couples from marrying promotes responsible heterosexual procreation.... Part VII of the majority opinion. Accordingly, the majority concludes that it need not address the only argument that other courts have found to be persuasive in determining that limiting marriage to one man and one woman is not unconstitutional. As the majority is aware, however, several amici, including the Family Institute of Connecticut (institute), have raised this argument, and there is nothing to prevent this court from considering it. See Lewis v. Harris, supra, 378 N.J.Super. at 185 n. 2, 875 A.2d 259 (when attorney general disclaimed reliance on promotion of procreation and creating optimal environment for raising children as justifications for limiting marriage to opposite sex couples, court was entitled to consider those arguments when raised by amici, and found them to be dispositive); see also id. (amicus is not at
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Kerrigan v. Commissioner of Public Health, 289 Conn. 135 (2008) 957 A.2d 407 liberty to inject new issues in a proceeding ... [but] is not confined solely to arguing the parties theories in support of a particular issue [internal quotation marks omitted] ). As the majority also is aware, at oral argument before this court on the institutes appeal from the trial courts denial of its motion to intervene in this case; see generally Kerrigan v. Commissioner of Public Health, 279 Conn. 447, 904 A.2d 137 (2006); the institute argued vigorously that intervention was necessary because the attorney general had indicated that he would not defend the institution of traditional marriage on the ground that it advanced the states compelling interest in promoting responsible procreation and child rearing. See id., at 45152, 904 A.2d 137. The institute also noted that, if it was not allowed to raise this argument as a party, this court could deem the argument waived in any appeal from the trial courts decision on the merits. In response to this argument, members of this court indicated that, if the attorney general failed to argue that there was a rational basis for traditional marriage, he would not be adequately representing the states interests, and expressed some skepticism that that would be the case. This court also questioned the institute about the substance of the arguments that it had made in the amicus brief that it had submitted to the trial court and expressed reservations as to whether the institutes intervention as a party was required when the institute was participating in the case as an amicus curiae. This court subsequently affirmed the trial courts denial of the institutes motion to intervene because the trial court reasonably could have determined that the institutes interest in defending the constitutionality of the [civil union law] would be adequately represented by the attorney general, whose defense of state statutes is presumed to be adequate; id., at 462, 904 A.2d 137; and because the record demonstrate[d] that the institute ha[d] filed an extensive amicus brief that contain[ed] ample references to ... scientific studies [concerning children raised without both a mother and a father]. Id., at 464, 904 A.2d 137. In light of this history, I believe that it is unseemly, to say the least, for the majority to decline even to address the arguments raised by the amici.
16 17
See footnotes 3 and 4 of the majority opinion for the relevant text of these provisions. The majority purports not to reach the plaintiffs claim that they have a fundamental right to marry. It is difficult, however, to see how that could be the case. The majority concludes that the plaintiffs are entitled to enter into precisely the same institution of marriage as that entered into by opposite sex couples. Marriage either is a fundamental civil right or it is not; it cannot have both characteristics at the same time. Because marriage indisputably is a fundamental civil right for opposite sex couples, the majority must believe that it is a fundamental civil right for same sex couples. Any such right can only be based on a loving, committed relationship between consenting adults. It is uncontroverted, however, that, up to now, marriage has been a fundamental right under the constitution because of its link to procreation. See Zablocki v. Redhail, supra, 434 U.S. at 386, 98 S.Ct. 673;Skinner v. Oklahoma ex rel. Williamson, supra, 316 U.S. at 541, 62 S.Ct. 1110. Thus, the majority must believe that there are two fundamental rights to marriage. If that is the case, however, then the participants in the two different fundamental rights are not similarly situated. See State v. Ross, 230 Conn. 183, 289, 646 A.2d 1318 (1994) (Berdon, J., dissenting in part) ([t]he preamble of the constitution makes clear that it reserves to the people the liberties, rights and privileges which they have derived from their ancestors [emphasis added; internal quotation marks omitted] ), cert. denied, 513 U.S. 1165, 115 S.Ct. 1133, 130 L.Ed.2d 1095 (1995); see also Conn. Const., art. I, preface (declaration of rights is made so [t]hat the great and essential principles of ... free government may be recognized and established [emphasis added] ); id., at art. I, 2 ([a]ll political power is inherent in the people, and all free governments are founded on their authority, and instituted for their benefit). It is arguable that the preamble to the state constitution protects the institution of marriage in the form that it existed at the time that the constitution was adopted, i.e., an institution designed to privilege and regulate procreation, and that the legislature would be barred from redefining it in such a way that it would no longer serve that basic and compelling public interest. Cf. Evans v. General Motors Corp., 277 Conn. 496, 509, 893 A.2d 371 (2006) (article first, 19, of state constitution consistently has been construed to mean that if there was right to trial by jury at time of adoption of provision, then that right remains intact); Gentile v. Altermatt, 169 Conn. 267, 28687, 363 A.2d 1 (1975) (article first, 10, of state constitution deprives legislature of authority to abolish legal right existing at common law prior to 1818 unless legislature simultaneously establishes reasonable alternative to enforcement of that right), appeal dismissed, 423 U.S. 1041, 96 S.Ct. 763, 46 L.Ed.2d 631(1976); see also J. Root, supra, at 1 Root (Conn.) xxvii (under Connecticut law at time that state constitution was adopted, marriage constituted joining of one man and one woman for purpose of propagating, and preserving and educating offspring). It is beyond dispute, however, that this court is barred from doing so. There is strong evidence that the state increasingly has recognized the harm caused by the breakdown of the traditional family and a childs need for both a mother and a father. In 1999, the state enacted the Fatherhood Initiative to promote the positive involvement and interaction of fathers with their children.... Public Acts 1999, No. 99193, 1. The objectives of the initiative are to: (1) [p]romote public education concerning the financial and emotional responsibilities of fatherhood; (2) assist men in preparation for the legal, financial and emotional responsibilities of fatherhood; (3) promote the establishment of paternity at childbirth; (4) encourage fathers, regardless of marital status, to foster their emotional connection to and financial support of their children; (5) establish support mechanisms for fathers in their relationship with their children, regardless of their marital and financial status; and (6) integrate state and local services available for families. Id. In June, 2008, James Amann, the speaker of
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Kerrigan v. Commissioner of Public Health, 289 Conn. 135 (2008) 957 A.2d 407 the Connecticut House of Representatives, announced that he had formed a twelve member task force to study the growing problem of children growing up without fathers. See C. Stuart, Lawmakers to Study Fatherlessness (June 26, 2008), available at http://www.ctnewsjunkie.com/state_ capitol/lawmakers_to_study_ fatherlessn.php. As the result of recent research, [t]he vital influence of a loving father on a child and family is increasingly undeniable. R. Rohner, Editorial, What Fathers Mean for Kids, Hartford Courant, August 4, 2008, p. A13.
21
One thing that [children] surely require is at least one parent of each sex.... [This] is because the sexes are not quite interchangeable. Though much more similar than dissimilar, both sexes are distinctive. Boys cannot learn how to become healthy men from even the most loving mother (or pair of mothers) alone. And girls cannot learn how to become healthy women from even the most loving father (or pair of fathers) alone. K. Young & P. Nathanson, supra. Because heterosexuality is directly related to both reproduction and survival [of the species], and because it involves much more than copulation, every human society has had to promote it actively (although some have also allowed homosexuality in specific circumstances). And marriage is the major way of doing so. It has always required a massive cultural effort involving myths or theologies, rituals, rewards, privileges, and so on. Heterosexuality is always fostered as a cultural norm, in other words, not merely allowed as one lifestyle choice among many. Some norms vary greatly from one society to another, to be sure, but othersalong with the very existence of normsare universal. So deeply embedded in consciousness are these that few people are actually aware of them. The result, in any case, is a privileged status for heterosexuality. Postmodernists are not wrong in identifying it as such, but they are wrong in assuming that any society can do without it.... Its universal features include the fact that marriage ... encourages procreation under specific conditions ... recognizes the interdependence of men and women ... and ... provides mutual support not only between men and women but also between them and children. Its nearly universal features [include] ... an emphasis on durable relationships between biological parents.... These features assume the distinctive contributions of both sexes, transmit knowledge from one generation to another, and create not only vertical links between the generations but also horizontal ones between allied families or communities. (Internal quotation marks omitted.) K. Young & P. Nathanson, supra. For example, in one of the studies on which the plaintiffs rely, the authors stated that [t]he small and nonrepresentative samples studied and the relatively young age of most of the children suggest some reserve and that [r]esearch exploring the diversity of parental relationships among gay and lesbian parents is just beginning. E. Perrin & Committee on Psychosocial Aspects of Child and Family Health, Technical Report: Coparent or SecondParent Adoption by SameSex Parents, 109 Pediatrics 341, 343 (2002). In this regard, I would point out that couples never have been required to prove that they are in a loving relationship before being allowed to marry. Moreover, commitment is increasingly considered optional. That has not stopped the plaintiffs from claiming, and the majority from concluding, that loving commitment is the essence of marriage. I recognize that, at least in more modern times, society has considered love between a man and a woman to be a sufficient justification for marriage. This does not mean, however, that the state has any particular interest in promoting romantic love, in and of itself. Rather, if the state has any interest in promoting love, it is only because love is instrumental to the sexual conduct and long-term commitment that are required to propagate and raise children. The United States Supreme Court has recognized that the distinctive elements [of marriage] ... rob it of most of its characteristics as a contract, and leave it simply as a status or institution. As such, it is not so much the result of private agreement, as of public ordination. In every enlightened government, it is preeminently the basis of civil institutions, and thus an object of the deepest public concern. In this light, marriage is more than a contract. It is not a mere matter of pecuniary consideration. It is a great public institution, giving character to our whole civil polity. (Emphasis in original; internal quotation marks omitted.) Maynard v. Hill, 125 U.S. 190, 213, 8 S.Ct. 723, 31 L.Ed. 654 (1888). Thus, the institution of marriage is primarily concerned with preserving the existing civil polity, not with bestowing individual rights. We long have recognized that testimony from legislative committee hearings may be relevant to a statutory analysis because it tends to shed light on the problems that the legislature was attempting to resolve in enacting the legislation. E.g., Burke v. Fleet National Bank, 252 Conn. 1, 17, 742 A.2d 293 (1999). The majority conspicuously omits any discussion of this statutory provision in its opinion, although it relies on 45a727a (3) in support of its conclusion that it is the public policy of this state that sexual orientation bears no relation to an individuals ability to raise children.... Part V B of the majority opinion. Of course, no one in this case is challenging the parenting ability of gay individuals. I find it troubling that the majority is willing to consider the plaintiffs arguments in support of their claim that same sex marriage will have no deleterious effect on the welfare of children while expressly declining to address the arguments to the contrary. See footnote 12 of this opinion. I agree with Justice Bordens response to the plaintiffs argument that any link between marriage and procreation was severed by the decisions of the United States Supreme Court in Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965),
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Kerrigan v. Commissioner of Public Health, 289 Conn. 135 (2008) 957 A.2d 407 Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), and Lawrence v. Texas, supra, 539 U.S. at 558, 123 S.Ct. 2472. See part IV of Justice Bordens dissenting opinion.
29
To the extent that the majority contends that these statements were inadequately supported by citations to the historical record, the burden is not on the defendants to prove a negative. Nevertheless, I note that the amicus brief filed by the Knights of Columbus notes that, at the time that article first, 20, of the state constitution was amended in 1974 to prohibit discrimination on the basis of sex, some citizens were concerned that the amendment could be interpreted as requiring the recognition of same sex marriage. The Hartford Courant published an editorial stating that any such claim was nonsense, and the Danbury NewsTimes characterized the claims as scare tactics. Gloria Schaffer, then the secretary of the state, and Kay Bergin, the executive director of the permanent commission on the status of women, gave a joint public statement that such claims were unfounded and were misleading and inflammatory, calculated to frighten and to distort the true meaning of the proposed amendment. There is no evidence that the drafters or the supporters of the amendment ever disputed these characterizations or believed that the critics of the amendment were correct. In light of this history, it is difficult for me to believe that the drafters of the equal protection provisions of our constitution, or those who voted for them, believed that sexual orientation should be treated as a quasi-suspect classification. The majority states that, [a]t a minimum ... recognizing gay persons as a quasi-suspect class would substantially increase the likelihood of a determination that same sex couples are entitled to marry in view of the fact that the state would be required to provide strong justification for denying them that right. Accordingly, we consider the public policy ramifications of invalidating the statutory scheme barring same sex marriage. Part VI E of the majority opinion. The defendants have stipulated that several of the plaintiffs feel that the marriage laws treat them as second-class citizens, and I have no reason to doubt that that is the case or to suggest that such feelings are unreasonable. The defendants have expressly denied, however, that [b]eing placed into a separate category, such as civil unions, brands [the plaintiffs] relationship[s] as second class.... Of course, if the legislation negatively impacts a fundamental right, then it is subject to heightened scrutiny under substantive due process principles. I have concluded that there is no fundamental right to same sex marriage.
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End of Document
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Varnum v. Brien, 763 N.W.2d 862 (2009)
763 N.W.2d 862 Supreme Court of Iowa. Katherine VARNUM, Patricia Hyde, Dawn Barbouroske, Jennifer Barbouroske, Jason Morgan, Charles Swaggerty, David Twombley, Lawrence Hoch, William M. Musser, Otter Dreaming, Ingrid Olson, and Reva Evans, Appellees, v. Timothy J. BRIEN, In His Official Capacities as the Polk County Recorder and Polk County Registrar, Appellant. No. 071499. | April 3, 2009.
religious opposition to same-sex marriage could not be a government interest supporting statute; and
[10]
[9]
statutory language limiting civil marriage to a man and a woman was required to be stricken. Affirmed.
West Headnotes (53)

[1]
Judgment Absence of issue of fact An issue of fact is material, so as to preclude summary judgment, only when the dispute is over facts that might affect the outcome of the suit, given the applicable governing law. I.C.A. Rule 1.981(3). 1 Cases that cite this headnote
Synopsis Background: Same-sex couples who had been denied marriage licenses by county recorder brought action challenging statute limiting civil marriage to a union between a man and a woman. The District Court, Polk County, Robert B. Hanson, J., entered summary judgment in favor of couples. County recorder appealed.
Holdings: The Supreme Court, Cady, J., held that: same-sex couples were similarly situated as opposite-sex couples with respect to the subject and purposes of states marriage laws;
[2] [3] [1] [2]
Judgment Presumptions and burden of proof The party requesting summary judgment shoulders the burden to demonstrate no genuine issue of material fact exists. I.C.A. Rule 1.981(3). 2 Cases that cite this headnote
statute classified on the basis of sexual orientation;
sexual orientation was a quasi-suspect classification, and thus Supreme Court would apply heightened scrutiny in analyzing it; protection of traditional marriage as between a man and a woman was not an important governmental objective;
[3] [4]
statute was not substantially related to government goal of ensuring optimal environment for raising children; statute was not substantially related to government goal of promoting procreation; statute was not substantially related to government goal of promoting stability in opposite sex relationships; statute was not substantially related to government goal of conservation of state resources;
[8] [7] [6]
[5]
Appeal and Error Cases Triable in Appellate Court The Supreme Court reviews the legal issues necessary for resolution of constitutional claims presented within the context of a summary judgment proceeding de novo. 1 Cases that cite this headnote
2 Cases that cite this headnote

[4]
Constitutional Law Constitutionality of Statutory Provisions The constitution controls any legislative act repugnant to it.
[8]
Constitutional Law Federal/state cognates Like the equal protection clause of the United States Constitution, states constitutional promise of equal protection is essentially a direction that all persons similarly situated should be treated alike. U.S.C.A. Const.Amend. 14; Const. Art. 1, 6. 4 Cases that cite this headnote
[5]
Constitutional Law Equal Protection Purpose of limiting the power of the elected branches of government by constitutional provisions like the equal protection clause is to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. U.S.C.A. Const.Amend. 14.; Const. Art. 1, 6.
[9]
Constitutional Law Equal protection Even in the zealous protection of the constitutions mandate of equal protection, courts must give respect to the legislative process and presume its enactments are constitutional. U.S.C.A. Const.Amend. 14; Const. Art. 1, 6.
[6]
Constitutional Law Judicial Authority and Duty in General When individuals invoke the state constitutions guarantees of freedom and equality, courts are bound to interpret those guarantees. Const. Art. 1, 6.
[10]
Constitutional Law Equal protection Constitutional Law Statutes and other written regulations and rules Under a traditional rational basis review of a statute challenged on equal protection grounds, courts are required to accept generalized reasons to support the legislation, even if the fit between the means and end is far from perfect; moreover, the challengers bear the burden of negating every conceivable rational basis that might support the classification drawn in the statute. U.S.C.A. Const.Amend. 14; Const. Art. 1, 6.
[7]
Constitutional Law Federal/state cognates Generally, the federal and state equal protection clauses are viewed as identical in scope, import, and purpose; at the same time, the Supreme Court has the right to employ a different analytical framework under the state equal protection clause as well as to independently apply the federally formulated principles. U.S.C.A. Const.Amend. 14; Const. Art. 1, 6.
[11]
Constitutional Law Equal protection Constitutional Law Statutes and other written regulations and rules Under the rational basis test, a party challenging a statute on grounds that it violates equal protection has the heavy burden of showing the statute unconstitutional and must negate every reasonable basis upon which the classification may be sustained. U.S.C.A. Const.Amend. 14; Const. Art. 1, 6. 1 Cases that cite this headnote
[14]
Constitutional Law Statutes and other written regulations and rules The rational basis test for determining whether a statute violates equal protection defers to the legislatures prerogative to make policy decisions by requiring only a plausible policy justification, mere rationality of the facts underlying the decision, and a merely rational relationship between the classification and the policy justification. U.S.C.A. Const.Amend. 14; Const. Art. 1, 6. 1 Cases that cite this headnote
[12]
Constitutional Law Statutes and other written regulations and rules In deference to the legislature, a statute will satisfy the requirements of the equal protection clause so long as there is a plausible policy reason for the classification, the legislative facts on which the classification is apparently based rationally may have been considered to be true by the governmental decisionmaker, and the relationship of the classification to its goal is not so attenuated as to render the distinction arbitrary or irrational. U.S.C.A. Const.Amend. 14; Const. Art. 1, 6. 2 Cases that cite this headnote
[15]
Constitutional Law Statutes and other written regulations and rules The deference built into the rational basis test is not dispositive because the Supreme Court engages in a meaningful review of all legislation challenged on equal protection grounds by applying the rational basis test to the facts of each case. Const. Art. 1, 6.
[16]
Constitutional Law Strict scrutiny and compelling interest in general The constitutional guarantee of equal protection demands certain types of statutory classifications must be subjected to close scrutiny by courts; thus, courts apply a heightened level of scrutiny, known as strict scrutiny, under equal protection analysis when reasons exist to suspect prejudice against discrete and insular minorities which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities. U.S.C.A. Const.Amend. 14; Const. Art. 1, 6.
[13]
Constitutional Law Statutes and other written regulations and rules Although the rational basis test for determining whether a statute violates equal protection is deferential to legislative judgment, it is not a toothless one in Iowa. U.S.C.A. Const.Amend. 14; Const. Art. 1, 6.
[17]
Constitutional Law Strict scrutiny and compelling interest in general Constitutional Law Alien status Constitutional Law Race, national origin, or ethnicity Statutory classifications based on race, alienage, or national origin and those affecting fundamental rights are evaluated, in a challenge on equal protection grounds, according to a standard known as strict scrutiny; classifications subject to strict scrutiny are presumptively invalid and must be narrowly tailored to serve a compelling governmental interest. U.S.C.A. Const.Amend. 14; Const. Art. 1, 6. 1 Cases that cite this headnote
[20]
protection challenge, a statute must not only further an important governmental interest and be substantially related to that interest, but the justification for the classification must be genuine and must not depend on broad generalizations. U.S.C.A. Const.Amend. 14; Const. Art. 1, 6.
Appeal and Error Matters or Evidence Considered in Determining Question In determining whether statute limiting civil marriage to a union between a man and a woman violated equal protection, Supreme Court would consider all evidence tendered by parties, as constitutional facts not subject to rules of evidence when presented by a party in the form of witness testimony. U.S.C.A. Const.Amend. 14; Const. Art. 1, 6.
[18]
Constitutional Law Illegitimacy Constitutional Law Sex or gender An intermediate level of scrutiny applies to statutes classifying on the basis of gender or illegitimacy, and requires the party seeking to uphold the statute against an equal protection challenge to demonstrate the challenged classification is substantially related to the achievement of an important governmental objective; it is known as intermediate scrutiny or heightened scrutiny, and groups entitled to this tier of review are often called quasi-suspect groups. U.S.C.A. Const.Amend. 14; Const. Art. 1, 6.
[21]
Trial Admission of evidence in general Unlike adjudicative facts, legislative or constitutional facts, required to support judicial decision-making in crafting rules of law based on social, economic, political, or scientific facts, may be presented either formally or informally.
[22]
Trial Admission of evidence in general Constitutional facts, required to support judicial decision-making in crafting rules of law based on social, economic, political, or scientific facts, are not subject to the rules of evidence when presented by a party in the form of witness testimony.
[19]
Constitutional Law Intermediate scrutiny in general To survive intermediate scrutiny in an equal
alike all people who are similarly situated with respect to the legitimate purposes of the law. U.S.C.A. Const.Amend. 14; Const. Art. 1, 6. 1 Cases that cite this headnote
[23]
Constitutional Law Marriage and civil unions Marriage Same-Sex and Other Non-Traditional Unions Same-sex couples were similarly situated as opposite-sex couples, with respect to the subject and purposes of states marriage laws, and thus same-sex couples could challenge, on equal protection grounds, statute limiting civil marriage to a union between a man and a woman; same-sex couples were in committed and loving relationships, many raising families, and official recognition of their status provided an institutional basis for defining their fundamental relational rights and responsibilities. Const. Art. 1. 6; I.C.A. 595.2(1). 6 Cases that cite this headnote
[26]
Constitutional Law Similarly situated persons; like circumstances Constitutional Law Statutes and other written regulations and rules Requirement of equal protection that the law must treat all similarly situated people the same has generated a narrow threshold test; under this threshold test, if plaintiffs cannot show as a preliminary matter that they are similarly situated, courts do not further consider whether their different treatment under a statute is permitted under the equal protection clause. U.S.C.A. Const.Amend. 14; Const. Art. 1, 6. 4 Cases that cite this headnote
[24]
Constitutional Law Statutes and other written regulations and rules The constitutional pledge of equal protection does not prohibit laws that impose classifications. U.S.C.A. Const.Amend. 14; Const. Art. 1, 6.
[27]
Constitutional Law Similarly situated persons; like circumstances Constitutional Law Statutes and other written regulations and rules Equal protection before the law demands more than the equal application of the classifications made by the law, but the law itself must be equal; in other words, to truly ensure equality before the law, the equal protection guarantee requires that laws treat all those who are similarly situated with respect to the purposes of the law alike. U.S.C.A. Const.Amend. 14; Const. Art. 1, 6. 2 Cases that cite this headnote
[25]
Constitutional Law Perfect, exact, or complete equality or uniformity Constitutional Law Statutes and other written regulations and rules Many statutes impose classifications by granting special benefits or declaring special burdens, and the equal protection clause does not require all laws to apply uniformly to all people; instead, equal protection demands that laws treat
[28]
Constitutional Law Marriage and civil unions Marriage Same-Sex and Other Non-Traditional Unions 5
Statute limiting civil marriage to a union between a man and a woman classified on the basis of sexual orientation, for purposes of determining level of scrutiny to be applied, in equal protection challenge to statute; even though statute did not expressly prohibit gay and lesbian persons from marrying, gay or lesbian persons could only gain the same rights under the statute as a heterosexual person by negating the very trait that defining them as a class, their sexual orientation. Const. Art. 1, 6.; I.C.A. 595.2.
burdened classs ability to contribute to society, such classifications often reflect irrelevant stereotypes. U.S.C.A. Const.Amend. 14; Const. Art. 1, 6.
[31]
Constitutional Law Heightened Levels of Scrutiny To determine whether certain legislative classifications warrant more demanding constitutional analysis in an equal protection challenge, four factors are relevant: (1) the history of invidious discrimination against the class burdened by the legislation; (2) whether the characteristics that distinguish the class indicate a typical class members ability to contribute to society; (3) whether the distinguishing characteristic is immutable or beyond the class members control; and (4) the political power of the subject class. U.S.C.A. Const.Amend. 14; Const. Art. 1, 6. 1 Cases that cite this headnote
[29]
Constitutional Law Marriage and civil unions Sexual orientation was a quasi-suspect classification, and thus Supreme Court would apply heightened scrutiny in determining whether statute limiting civil marriage to a union between a man and a woman violated equal protection rights of same-sex couples; history of discrimination existed against homosexuals, sexual orientation was irrelevant to a persons ability to contribute to society, sexual orientation was an immutable characteristic, and gay and lesbian people were not so politically powerful as to overcome the unfair and severe prejudice that history suggests produces discrimination based on sexual orientation. Const. Art. 1., 6; I.C.A. 595.2. 3 Cases that cite this headnote
[32]
Constitutional Law Heightened Levels of Scrutiny Heightened scrutiny is applied, in an equal protection challenge to a statute, when a statutory classification bears no relationship to a persons ability to contribute to society; the existence of this factor indicates the classification is likely based on irrelevant stereotypes and prejudice. U.S.C.A. Const.Amend. 14; Const. Art. 1, 6.
[30]
Constitutional Law Particular Classes Classifications based on factors like race, alienage, national origin, sex, or illegitimacy are so seldom relevant to achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy, and thus must withstand more intense judicial scrutiny than other types of classifications in an equal protection challenge; rather than bearing some relationship to the
[33]
Constitutional Law Heightened Levels of Scrutiny A classification unrelated to a persons ability to perform or contribute to society typically reflects prejudice and antipathy, a view that 6
those in the burdened class are not as worthy or deserving as others or reflects outmoded notions of the relative capabilities of persons with the characteristic, and thus the classification must be subject to heightened scrutiny in an equal protection challenge. U.S.C.A. Const.Amend. 14; Const. Art. 1, 6.
consequently, such barriers normally do not warrant heightened scrutiny in an equal protection challenge. U.S.C.A. Const.Amend. 14; Const. Art. 1, 6.
[37]
Constitutional Law Levels of Scrutiny The constitutional relevance of the immutability of a human trait, as a factor in determining, in an equal protection challenge, the level of scrutiny to be applied to a statutory classification based in the trait, is not reserved to those instances in which the trait defining the burdened class is absolutely impossible to change; the immutability prong of the suspectness inquiry is satisfied when the identifying trait is so central to a persons identity that it would be abhorrent for government to penalize a person for refusing to change it. U.S.C.A. Const.Amend. 14; Const. Art. 1, 6.
[34]
Constitutional Law Levels of Scrutiny A human trait that defines a group is immutable, for purposes of determining, in an equal protection challenge, the level of scrutiny to be applied to a statutory classification based in the trait, when the trait exists solely by the accident of birth, or when the person with the trait has no ability to change it. U.S.C.A. Const.Amend. 14; Const. Art. 1, 6.
[35]
Constitutional Law Levels of Scrutiny

[38]
Immutability of a human trait is a factor in determining, in an equal protection challenge, the level of scrutiny to be applied to a statutory classification based in the trait, because the inability of a person to change a characteristic that is used to justify different treatment makes the discrimination violative of the concept that legal burdens should bear some relationship to individual responsibility. U.S.C.A. Const.Amend. 14; Const. Art. 1, 6.
Constitutional Law Sexual orientation Because sexual orientation is central to personal identity and may be altered, if at all, only at the expense of significant damage to the individuals sense of self, classifications based on sexual orientation are entitled to consideration as a suspect or quasi-suspect class, for equal protection purposes, as is other group that has been deemed to exhibit an immutable characteristic. U.S.C.A. Const.Amend. 14; Const. Art. 1, 6.
[36]
Constitutional Law Heightened Levels of Scrutiny

[39]
Temporary barriers tend to be less burdensome on a group and more likely to actually advance a legitimate governmental interest, and
Constitutional Law Levels of Scrutiny A groups current political powerlessness is not 7
a prerequisite to enhanced judicial protection, for purposes of determining the level of scrutiny to use in an equal protection challenge to a statute burdening that group. U.S.C.A. Const.Amend. 14; Const. Art. 1, 6.
[43]
Constitutional Law Intermediate scrutiny in general Where proffered governmental interests are sufficiently weighty to be called important, as a step in an equal protection challenge of a statute under intermediate scrutiny, the critical inquiry is whether these governmental objectives can fairly be said to be advanced by the legislative classification. U.S.C.A. Const.Amend. 14; Const. Art. 1, 6.
[40]
Constitutional Law Sexual orientation Legislative classifications based on sexual orientation must be examined under a heightened level of scrutiny under equal protection guarantee of state constitution. Const. Art. 1, 6. 1 Cases that cite this headnote
[44]
Constitutional Law Marriage and civil unions Marriage Same-Sex and Other Non-Traditional Unions Protection of traditional marriage as between a man and a woman was not an important governmental objective, for purposes of determining, under intermediate scrutiny, whether statute limiting civil marriage to a union between a man and a woman violated the state constitutional equal protection rights of same sex couples seeking marriage licenses; purported objective merely justified quasi-suspect classification for its own sake. Const. Art. 1, 6; I.C.A. 595.2.
[41]
Constitutional Law Intermediate scrutiny in general To withstand intermediate scrutiny in an equal protection challenge, a statutory classification must be substantially related to an important governmental objective. U.S.C.A. Const.Amend. 14; Const. Art. 1, 6.
[42]
Constitutional Law Equal protection Constitutional Law Intermediate scrutiny in general In determining whether governmental objectives for making a classification are important, as a step in an equal protection challenge of a statute under intermediate scrutiny, the burden of justification is demanding and it rests entirely on the state. U.S.C.A. Const.Amend. 14; Const. Art. 1, 6.
[45]
Constitutional Law Marriage and civil unions Marriage Same-Sex and Other Non-Traditional Unions Statute limiting civil marriage to a union between a man and a woman was not substantially related to government goal of ensuring optimal environment for raising children, for purposes of determining, under intermediate scrutiny, whether statute violated the state constitutional equal protection rights of same sex couples seeking marriage licenses; statute was over-inclusive by denying civil marriage to all gay and lesbian people in order 8
to discourage the limited number of same-sex couples who desired to raise children, and under-inclusive, since it did not prohibit same-sex couples from raising children. Const. Art. 1, 6; I.C.A. 595.2. 5 Cases that cite this headnote
whether statute violated the state constitutional equal protection rights of same sex couples seeking marriage licenses; statute was significantly under-inclusive, since it did not include a variety of groups that did not procreate for reasons such as age, physical disability, or choice. Const. Art. 1, 6; I.C.A. 595.2.
[46]
Constitutional Law Intermediate scrutiny in general

[49]
Under intermediate scrutiny in an equal protection challenge to a statute, the relationship between the governments goal and the classification employed to further that goal must be substantial; in order to evaluate that relationship, it is helpful to consider whether the legislation is over-inclusive or under-inclusive. U.S.C.A. Const.Amend. 14; Const. Art. 1, 6.
Constitutional Law Marriage and civil unions Marriage Same-Sex and Other Non-Traditional Unions Statute limiting civil marriage to a union between a man and a woman was not substantially related to government goal of promoting stability in opposite sex relationships, for purposes of determining, under intermediate scrutiny, whether statute violated the state constitutional equal protection rights of same sex couples seeking marriage licenses. Const. Art. 1, 6.; I.C.A. 595.2. 1 Cases that cite this headnote
[47]
Constitutional Law Statutes and other written regulations and rules While a statute does not automatically violate equal protection merely by being under-inclusive, the degree of under-inclusion nonetheless indicates the substantiality of the relationship between the legislative means and end. U.S.C.A. Const.Amend. 14; Const. Art. 1, 6.
[50]
Constitutional Law Marriage and civil unions Marriage Same-Sex and Other Non-Traditional Unions Statute limiting civil marriage to a union between a man and a woman was not substantially related to government goal of conservation of state resources, for purposes of determining, under intermediate scrutiny, whether statute violated the state constitutional equal protection rights of same sex couples seeking marriage licenses; statute was over-inclusive, since many same-sex couples, if allowed to marry, would not use more state resources than they currently consume as unmarried couples, and was under-inclusive, since purported goal would be better achieved by excluding groups more numerous than states estimated 5,800 same-sex couples. Const. Art. 1, 6.; I.C.A. 595.2. 9
[48]
Constitutional Law Marriage and civil unions Marriage Same-Sex and Other Non-Traditional Unions Statute limiting civil marriage to a union between a man and a woman was not substantially related to government goal of promoting procreation, for purposes of determining, under intermediate scrutiny,
1 Cases that cite this headnote
[51]
Constitutional Law Marriage and civil unions Marriage Same-Sex and Other Non-Traditional Unions Religious opposition to same-sex marriage could not be a government interest supporting statute limiting civil marriage to a union between a man and a woman, for purposes of determining, under intermediate scrutiny, whether statute violated the state constitutional equal protection rights of same sex couples seeking marriage licenses; not all religious people opposed same-sex marriage, and civil marriage was required to be judged under constitutional standards of equal protection and not under religious doctrines or the religious views of individuals. Const. Art. 1, 6; I.C.A. 595.2. 6 Cases that cite this headnote
marriage licenses, and thus statutory language limiting civil marriage to a man and a woman was required to be stricken and the remaining statutory language interpreted and applied in a manner allowing gay and lesbian people full access to the institution of civil marriage. Const. Art. 1. 6; I.C.A. 595.2. 2 Cases that cite this headnote
West Codenotes Held Unconstitutional I.C.A. 595.2 Attorneys and Law Firms *869 Roger J. Kuhle and Michael B. OMeara, Assistant County Attorneys, for appellant. Dennis W. Johnson of Dorsey & Whitney, LLP, Des Moines, and Camilla B. Taylor and Kenneth D. Upton, Jr. of Lambda Legal Defense & Education Fund, Inc., Chicago, IL, for appellees. John M. Murray of Murray & Murray, PLC, Storm Lake; Paul Benjamin Linton, Special Counsel, Thomas More Society, Northbrook, IL; Paul R. Devin, Supreme Advocate, Knights of Columbus, New Haven, *870 CT; and Thomas Brejcha, President and Chief Counsel, Thomas More Society, Chicago, IL, for amicus curiae Knights of Columbus. Norman L. Springer, Jr. of McGinn McGinn Jennings & Springer, Council Bluffs, Mathew D. Staver, Stephen M. Crampton, Mary E. McAlister, and David M. Corry, Liberty Counsel, Lynchburg, VA, for amicus curiae Liberty Counsel. Michael J. Manno, West Des Moines, for amici curiae Jews Offering New Alternatives to Homosexuality, Parents and Friends of ExGays & Gays, and Evergreen International. Jason M. Steffens of Simmons Perrine, PLC, Cedar Rapids, and Roger T. Severino of The Becket Fund for Religious Liberty, Washington, DC, for amicus curiae The Becket Fund for Religious Liberty. Andrew J. Boettger of Hastings & Gartin, LLP, Ames, and Steven W. Fitschen, Barry C. Hodge, and Nathan A. Driscoll of The National Legal Foundation, Virginia 10
[52]
Constitutional Law Freedom of Religion and Conscience The mission to protect religious freedom is consistent with a courts task to prevent government from endorsing any religious view; state government can have no religious views, either directly or indirectly, expressed through its legislation. U.S.C.A. Const.Amend. 1; Const. Art. 1, 3.
[53]
Constitutional Law Marriage and civil unions Marriage Same-Sex and Other Non-Traditional Unions Statutes Families and children Statute limiting civil marriage to a union between a man and a woman violated equal protection rights of same sex couples seeking
Beach, VA, for amicus curiae The National Legal Foundation. David James Hanson of Hofmeyer & Hanson, P.C., Fayette, and Joshua K. Baker of Institute for Marriage and Public Policy, Manassas, VA, for amici curiae James Q. Wilson, et al., Legal and Family Scholars. Timm W. Reid of Galligan, Reid & Galligan, P.C. and Iowa Liberty and Justice Center, Des Moines, and Benjamin W. Bull, Brian W. Raum, and James A. Campbell of Alliance Defense Fund, Scottsdale, AZ, for amicus curiae Iowa Legislators. Robert R. Anderson, Vinton, Stuart J. Roth of American Center for Law & Justice, Washington, DC, Laura B. Hernandez of The American Center for Law & Justice, Virginia Beach, VA, and Vincent P. McCarthy of American Center for Law & Justice NE, Litchfield, CT, for amicus curiae The American Center for Law & Justice. Daniel DenBeste of Elderkin & Pirnie, PLC, Cedar Rapids, and Monte Neil Stewart of Marriage Law Foundation, Orem, UT, for amici curiae United Families International, Family Watch International, and Family Leader Foundation. Michael A. Giudicessi, Christian S. Walker, Karin A. Johnson, and Nicole Nayima of Faegre & Benson, LLP, Des Moines; Michael A. Ponto of Faegre & Benson, LLP, Minneapolis, MN; and Evan Wolfson, Executive Director of Freedom to Marry, New York City, for amicus curiae Freedom to Marry. Randall C. Wilson of Iowa Civil Liberties Union, Des Moines, and John A. Knight of American Civil Liberties Union Foundation, Chicago, IL, for amici curiae The Bazelon Center for Mental Health Law, Iowa Protection and Advocacy Services, Inc., National Council on Independent Living, and the National Senior Citizens Law Center. David H. Goldman, Brent A. Cashatt, and Kodi A. Petersen of Babich, Goldman, Cashatt & Renzo, P.C., Des Moines, and Suzanne B. Goldberg, Clinical Professor of Law and Director of Sexuality and Gender Law Clinic Columbia Law School, New York City, for amici curiae Robert C. Hunter, Jean C. Love, and Maura Strassberg, Iowa Constitutional Law Scholars. Gordon R. Fischer of Bradshaw, Fowler, Proctor & Fairgrave, P.C., Des Moines, and Hugh S. Balsam and Kara J. Bruce of Locke Lord Bissell & Liddell, LLP, Chicago, IL, for amici curiae Certain Current and Former Iowa Elected Officials.
Ivan T. Webber of Ahlers & Cooney, P.C., Des Moines, and Tobias Barrington Wolff of University of Pennsylvania Law School, Philadelphia, PA, for amici curiae *871 OneIowa; The Iowa Chapters of Parents, Families and Friends of Lesbians and Gays; The Equal Justice Society; The National Black Justice Coalition; The Mexican American Legal Defense and Educational Fund; The Zuna Institute; The Asian American Justice Center; The Southern Poverty Law Center; People for the American Way Foundation; The Asian American Legal Defense and Education Fund; and The Immigrants Rights Program of the American Friends Service Committee. Harvey L. Harrison of Harrison & DietzKilen, P.L.C., Des Moines, and Mary Bonauto, Bennett H. Klein, and Janson Wu of Gay & Lesbian Advocates & Defenders, Boston, MA, for amici curiae Massequality, Massachusetts Gay and Lesbian Political Caucus, Gay & Lesbian Advocates & Defenders, various Massachusetts Senators and Representatives, Equality Federation, Garden State Equality, Love Makes a Family, Vermont Freedom to Marry Task Force, Human Rights Campaign, Human Rights Campaign Foundation, and National Gay and Lesbian Task Force. Catherine C. DietzKilen of Harrison & DietzKilen, P.L.C., Des Moines, for amicus curiae Iowa and National Faith Leaders, Communities and Scholars. Charles E. Gribble and Matthew T. Oetker of Parrish, Kruidenier, Dunn, Boles, Gribble, Cook, Parrish, Gentry & Fisher, L.L.P., Des Moines, and Aderson B. Francois, Caroline Boucher, Amy E. Hatcher, and Damien G. Scott of Civil Rights Clinic, Howard University School of Law, for amicus curiae Howard University School of Law Civil Rights Clinic. Mark E. Schantz of College of Law University of Iowa, Iowa City, and Stephen Sanders and Jeffrey W. Sarles of Mayer Brown, LLP, Chicago, IL, for amici curiae Iowa Professors of Law and History. Jim Quilty of Crawford & Quilty, Des Moines, and Vivian L. Polak, Jonathan A. Damon, Spencer R. Wood, Suman Chakraborty and Emily A. Gianquinto of Dewey & LeBoeuf, LLP, New York City, for amici curiae The National Association of Social Workers, The National Association of Social WorkersIowa Chapter, Youth and Shelter Services, and Middleton Center for Childrens Rights at Drake University Law School. Roxanne Barton Conlin of Roxanne Conlin & Associates, P.C., Des Moines, Jennifer K. Brown and Julie F. Kay of Legal Momentum, New York City, and Laura W. Brill, 11
Elizabeth L. Rosenblatt, and Richard M. Simon of Irell & Manella, Los Angeles, CA, for amici curiae Womens Rights Organizations. Joseph M. Barron, Des Moines; Richard T. Greenberg of McGuirewoods, LLP, Chicago, IL; and Shannon Price Minter of National Center for Lesbian Rights, Washington, DC, for amici curiae Professors of Family Law and Jurisprudence. Amy L. Reasner of Lynch Dallas, P.C., Cedar Rapids, and Carmine D. Boccuzzi of Cleary Gottlieb Steen & Hamilton, LLP, New York City, for amicus curiae Social Science Academics and Associations. Thomas A. Newkirk and Paige E. Fiedler of Fiedler & Newkirk, PLC, Urbandale; Paul M. Smith, William M. Hohengarten, and Anjan Choudhury of Jenner & Block, LLP, Washington, DC, and Nathalie F.P. Gilfoyle of American Psychological Association, Washington, DC, for amicus curiae The American Psychological Association. Daniel L. Bray of Bray & Klockau, P.L.C., Iowa City, and Diana E. Richmond of Sideman & Bancroft, LLP, San Francisco, CA, for amici curiae The American Academy of Matrimonial Lawyers, Joan *872 and Lyle Middleton Center for Childrens Rights, Drake Legal Clinic, and Pediatricians and Family Physicians. Opinion CADY, Justice. In this case, we must decide if our state statute limiting civil marriage to a union between a man and a woman violates the Iowa Constitution, as the district court ruled. On our review, we hold the Iowa marriage statute violates the equal protection clause of the Iowa Constitution. Therefore, we affirm the decision of the district court.
Like all Iowans, they prize their liberties and live within the borders of this state with the expectation that their rights will be maintained and protecteda belief embraced by our state motto.1 Despite the commonality shared with other Iowans, the twelve plaintiffs are different from most in one way. They are sexually and romantically attracted to members of their own sex. The twelve plaintiffs comprise six same-sex couples who live in committed relationships. Each maintains a hope of getting married one day, an aspiration shared by many throughout Iowa. Unlike opposite-sex couples in Iowa, same-sex couples are not permitted to marry in Iowa. The Iowa legislature amended the marriage statute in 1998 to define marriage as a union between only a man and a woman.2 Despite this law, the six same-sex couples in this litigation asked the Polk County Recorder to issue marriage licenses to them. The recorder, following the law, refused to issue the licenses, and the six couples have been unable to be married in this state. Except for the statutory restriction that defines marriage as a union between a man and a woman, the twelve plaintiffs met the legal requirements to marry in Iowa. As other Iowans have done in the past when faced with the enforcement of a law that prohibits them from engaging in an activity or achieving a status enjoyed by other Iowans, the twelve plaintiffs turned to the courts to challenge the statute. They seek to declare the marriage statute unconstitutional so they can obtain the array of benefits of marriage enjoyed by heterosexual couples, protect themselves and their children, and demonstrate to one another and to society their mutual commitment. In turning to the courts, the twelve plaintiffs filed this lawsuit in the Polk County District Court. They claimed the *873 statutory same-sex marriage ban violates certain liberty and equality rights under the Iowa Constitution. The individual rights claimed by plaintiffs to be adversely affected (by the action of the legislative branch in enacting the same-sex marriage ban and the action of the government officials of the executive branch in enforcing the ban) included the fundamental right to marry, as well as rights to privacy and familial association. Additionally, plaintiffs claimed the legislative and the executive actions unconstitutionally discriminated against them on several bases, including sexual orientation. The case was presented to the district court by means of a summary judgment motion. The record was developed through witness affidavits and depositions. This record included an explanation by some of the plaintiffs of the 12
I. Background Facts and Proceedings. This lawsuit is a civil rights action by twelve individuals who reside in six communities across Iowa. Like most Iowans, they are responsible, caring, and productive individuals. They maintain important jobs, or are retired, and are contributing, benevolent members of their communities. They include a nurse, business manager, insurance analyst, bank agent, stay-at-home parent, church organist and piano teacher, museum director, federal employee, social worker, teacher, and two retired teachers. Like many Iowans, some have children and others hope to have children. Some are foster parents.
disadvantages and fears they face each day due to the inability to obtain a civil marriage in Iowa. These disadvantages and problems include the legal inability to make many life and death decisions affecting their partner, including decisions related to health care, burial arrangements, autopsy, and disposition of remains following death. Various plaintiffs told of the inability to share in their partners state-provided health insurance, public-employee pension benefits, and many private-employer-provided benefits and protections. They also explained how several tax benefits are denied. Adoption proceedings are also more cumbersome and expensive for unmarried partners. Other obstacles presented by the inability to enter into a civil marriage include numerous nongovernmental benefits of marriage that are so common in daily life they often go unnoticed, such as something so simple as spousal health club memberships. Yet, perhaps the ultimate disadvantage expressed in the testimony of the plaintiffs is the inability to obtain for themselves and for their children the personal and public affirmation that accompanies marriage. The parties also explored the reasons for defining marriage in a way that denies these benefits to same-sex couples. The County offered five primary interests of society in support of the legislatures exclusive definition of marriage. The first three interests are broadly related to the advancement of child rearing. Specifically, the objectives centered on promoting procreation, promoting child rearing by a mother and a father within a marriage, and promoting stability in an opposite-sex relationship to raise and nurture children. The fourth interest raised by the County addressed the conservation of state resources, while the final reason concerned the governmental interest in promoting the concept and integrity of the traditional notion of marriage. Much of the testimony presented by the County was in the form of opinions by various individuals that same-sex marriage would harm the institution of marriage and also harm children raised in same-sex marriages. Two college professors testified that a heterosexual marriage is, overall, the optimal forum in which to raise children. A retired pediatrician challenged the accuracy of some of the medical research that concludes there is no significant difference between children raised by same-sex couples and opposite-sex couples. A clinical psychologist testified sexual orientation is not as defined and stable as race and gender and can change over time. He acknowledged, however, it is difficult to change a persons sexual orientation, and efforts to do so can be harmful to the person.
The plaintiffs produced evidence to demonstrate sexual orientation and gender have no effect on children raised by same-sex couples, and same-sex couples *874 can raise children as well as opposite-sex couples. They also submitted evidence to show that most scientific research has repudiated the commonly assumed notion that children need opposite-sex parents or biological parents to grow into well-adjusted adults. Many leading organizations, including the American Academy of Pediatrics, the American Psychiatric Association, the American Psychological Association, the National Association of Social Workers, and the Child Welfare League of America, weighed the available research and supported the conclusion that gay and lesbian parents are as effective as heterosexual parents in raising children. For example, the official policy of the American Psychological Association declares, There is no scientific evidence that parenting effectiveness is related to parental sexual orientation: Lesbian and gay parents are as likely as heterosexual parents to provide supportive and healthy environments for children.3 Almost every professional group that has studied the issue indicates children are not harmed when raised by same-sex couples, but to the contrary, benefit from them. In Iowa, agencies that license foster parents have found same-sex couples to be good and acceptable parents. It is estimated that more than 5800 same-sex couples live throughout Iowa, and over one-third of these couples are raising children. The district court concluded the statute was unconstitutional under the due process and equal protection clauses of the Iowa Constitution and granted summary judgment to the plaintiffs. It initially ordered the county recorder to begin processing marriage licenses for same-sex couples, but stayed the order during the pendency of an appeal.
II. Standard of Review. Summary judgment is appropriate only when there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law. Iowa R. Civ. P. 1.981(3). An issue of fact is material only when the dispute is over facts that might affect the outcome of the suit, given the applicable governing law. Junkins v. Branstad, 421 N.W.2d 130, 132 (Iowa 1988). The party requesting summary judgment shoulders the burden to demonstrate no genuine issue of material fact exists. Hunter v. City of Des Moines Mun. Hous. Auth., 742 N.W.2d 578, 584 (Iowa 2007). We review the legal issues necessary for resolution of the constitutional claims presented within the context of the summary judgment proceeding de novo. Kistler v. City of Perry, 719 N.W.2d 804, 805 (Iowa 2006).
[1] [2] [3]
13
III. Constitutional Separation of Powers. We approach the resolution of this case with a keen and respectful understanding of our Iowa Constitution and the vital roles of the three branches of government, as well as the role of the people. It is important for these roles to be identified and expressed from time to time when individuals seek recognition of rights, if only to serve as a reminder of the process of governing that has served us so well as a state for over 150 years. *875 The Iowa Constitution is the cornerstone of governing in Iowa. Like the United States Constitution, the Iowa Constitution creates a remarkable blueprint for government. It establishes three separate, but equal, branches of government and delineates the limited roles and powers of each branch. See Iowa Const. art. III, 1 (The powers of the government of Iowa shall be divided into three separate departmentsthe legislative, the executive, and the judicial: and no person charged with the exercise of powers properly belonging to one of these departments shall exercise any function appertaining to either of the others, except in cases hereinafter expressly directed or permitted.). Among other basic principles essential to our form of government, the constitution defines certain individual rights upon which the government may not infringe. See Iowa Const. art. I (Bill of Rights). Equal protection of the law is one of the guaranteed rights. See Iowa Const. art. I, 6. All these rights and principles are declared and undeniably accepted as the supreme law of this state, against which no contrary law can stand. See Iowa Const. art. XII, 1 (This constitution shall be the supreme law of the state, and any law inconsistent therewith, shall be void.). This case, as with most other civil rights actions before it, implicates these broad constitutional principles of governing. The legislature, in carrying out its constitutional role to make public policy decisions, enacted a law that effectively excludes gay and lesbian people from the institution of civil marriage. The executive branch of government, in carrying out its role to execute the law, enforced this statute through a county official who refused to issue marriage licenses to six same-sex couples. These Iowans, believing that the law is inconsistent with certain constitutional mandates, exercised their constitutional right to petition the courts for redress of their grievance. This court, consistent with its role to interpret the law and resolve disputes, now has the responsibility to determine if the law enacted by the legislative branch and enforced by the executive branch violates the Iowa Constitution.
A statute inconsistent with the Iowa Constitution must be declared void, even though it may be supported by strong and deep-seated traditional beliefs and popular opinion. Iowa Const. art. XII, 1 (providing any law inconsistent with the constitution is void). As Chief Justice John Marshall wrote over two centuries ago, It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it.... Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60, 73 (1803).
[4]
It is also well established that courts must, under all circumstances, protect the supremacy of the constitution as a means of protecting our republican form of government and our freedoms. As was observed by Justice Robert H. Jackson decades ago in reference to the United States Constitution, the very purpose of limiting the power of the elected branches of government by constitutional provisions like the Equal Protection Clause is to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 638, 63 S.Ct. 1178, 1185, 87 L.Ed. 1628, 1638 (1943).
[5]
The same principle applies to the provisions of the Iowa Constitution that limit government power. The idea that courts, free from the political influences in the other two branches of government, are better suited to protect individual rights *876 was recognized at the time our Iowa Constitution was formed. See Koehler v. Hill, 60 Iowa 543, 667, 15 N.W. 609, 64041 (1883) (Beck, J., dissenting) (Judges ought not to be partisans, and be influenced by partisan control. Their duty is to interpret and apply the law, to the end that the liberty, and the rights and property, of the people may be secured.); 1 The Debates of the Constitutional Convention; of the State of Iowa 453 (W. Blair Lord rep.) (Davenport, Luse, Lane & Co. 1857) (containing expression of one delegates desire to have one department of our State government in regard to which we can say, there is no political taint or bias, there is no partisan complexion to it; it is of such a character that when we go before it to have our dearest rights decided, we may rest assured that they will be decided upon principles of law and equity, and not upon political or party principles). In fulfilling this mandate under the Iowa Constitution, we look to the past and to precedent. We look backwards, not because citizens rights are constrained to those previously recognized, but because historical constitutional principles provide the framework to define our future as we confront the challenges of today. 14
Our responsibility, however, is to protect constitutional rights of individuals from legislative enactments that have denied those rights, even when the rights have not yet been broadly accepted, were at one time unimagined, or challenge a deeply ingrained practice or law viewed to be impervious to the passage of time. The framers of the Iowa Constitution knew, as did the drafters of the United States Constitution, that times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress, and as our constitution endures, persons in every generation can invoke its principles in their own search for greater freedom and equality. See Lawrence v. Texas, 539 U.S. 558, 57879, 123 S.Ct. 2472, 2484, 156 L.Ed.2d 508, 526 (2003) (acknowledging intent of framers of Federal Constitution that Constitution endure and be interpreted by future generations); Callender v. Skiles, 591 N.W.2d 182, 190 (Iowa 1999) (Our constitution is not merely tied to tradition, but recognizes the changing nature of society.). When individuals invoke the Iowa Constitutions guarantees of freedom and equality, courts are bound to interpret those guarantees. In carrying out this fundamental and vital role, we must never forget that it is a constitution we are expounding. MCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407, 4 L.Ed. 579, 602 (1819). It speaks with principle, as we, in turn, must also. See State v. Wheeler, 145 Wash.2d 116, 34 P.3d 799, 807 (2001) (Sanders, J., dissenting).
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achieve a broad national consensus on equal protection of the laws when it has been forced to apply that principle to some of the institutions, traditions, and norms woven into the fabric of our society. This observation is important today because it reveals equal protection can only be defined by the standards of each generation. See Cass R. Sunstein, Sexual Orientation and the Constitution: A Note on the Relationship Between Due Process and Equal Protection, 55 U. Chi. L.Rev. 1161, 1163 (1988) ([T]he Equal Protection Clause looks forward, serving to invalidate practices that were widespread at the time of its ratification and that were expected to endure.). The process of defining equal protection, as shown by our history as captured and told in court decisions, begins by classifying people into groups. A classification persists until a new understanding of equal protection is achieved. The point in time when the standard of equal protection finally takes a new form is a product of the conviction of one, or many, individuals that a particular grouping results in inequality and the ability of the judicial system to perform its constitutional role free from the influences that tend to make societys understanding of equal protection resistant to change. As Justice Oliver Wendell Holmes poignantly said, It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past. Oliver Wendell Holmes, Justice, Supreme Judicial Court of Massachusetts, The Path of the Law, address dedicating new hall at Boston University School of Law (January 8, 1897), in 10 Harv. L.Rev. 457, 469 (1897). This concept is evident in our past cases. In the first reported case of the Supreme Court of the Territory of Iowa, In re Ralph, 1 Morris 1 (Iowa 1839), we refused to treat a human being as property to enforce a contract for slavery and held our laws must extend equal protection to persons of all races and conditions. 1 Morris at 9. This decision was seventeen years before the United States Supreme Court infamously decided Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 15 L.Ed. 691 (1856), which upheld the rights of a slave owner to treat a person as property. Similarly, in Clark v. Board of Directors, 24 Iowa 266 (1868), and Coger v. North West. Union Packet Co., 37 Iowa 145 (1873), we struck blows to the concept of segregation long before the United States Supreme Courts decision in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954). Iowa was also the first state in the nation to admit a woman to the practice of law, doing so in 1869. Admission of Women to the Bar, 1 Chicago Law Times 76, 76 (1887). Her admission occurred three years before the United States 15
Finally, it should be recognized that the constitution belongs to the people, not the government or even the judicial branch of government. See Iowa Const. art. I, 2 (All political power is inherent in the people. Government is instituted for the protection, security, and benefit of the people, and they have the right, at all times, to alter or reform the same, whenever the public good may require it.). While the constitution is the supreme law and cannot be altered by the enactment of an ordinary statute, the power of the constitution flows from the people, and the people of Iowa retain the ultimate power to shape it over time. See Iowa Const. art. X (Amendments to the Constitution).
IV. Equal Protection. A. Background Principles. The primary constitutional principle at the heart of this case is the doctrine of equal protection. The concept of equal protection is *877 deeply rooted in our national and state history, but that history reveals this concept is often expressed far more easily than it is practiced. For sure, our nation has struggled to
Supreme Court affirmed the State of Illinois decision to deny women admission to the practice of law, see Bradwell v. Illinois, 83 U.S. (16 Wall.) 130, 139, 21 L.Ed. 442, 445 (1873), and twenty-five years before the United States Supreme Court affirmed the refusal of the Commonwealth of Virginia to admit women into the practice of law, see Ex parte Lockwood, 154 U.S. 116, 118, 14 S.Ct. 1082, 1083, 38 L.Ed. 929, 930 (1894). In each of those instances, our state approached a fork in the road toward fulfillment of our constitutions ideals and reaffirmed the absolute equality of all persons before the law as the very foundation principle of our government.4 See Coger, 37 Iowa at 153. *878 So, today, this court again faces an important issue that hinges on our definition of equal protection. This issue comes to us with the same importance as our landmark cases of the past. The same-sex-marriage debate waged in this case is part of a strong national dialogue5 centered on a fundamental, deep-seated, traditional institution that has excluded, by state action, a particular class of Iowans. This class of people asks a simple and direct question: How can a state premised on the constitutional principle of equal protection justify exclusion of a class of Iowans from civil marriage? B. Legal Tests to Gauge Equal Protection. The foundational principle of equal protection is expressed in article I, section 6 of the Iowa Constitution, which provides: All laws of a general nature shall have a uniform operation; the general assembly shall not grant to any citizen or class of citizens, privileges or immunities, which, upon the same terms shall not equally belong to all citizens. See also Iowa Const. art. I, 1 (All men and women are, by nature, free and equal ....); id. art. I, 2 (recognizing [a]ll political power is inherent in the people and [g]overnment is instituted for the protection, security, and benefit of the people). Like the Federal Equal Protection Clause found in the Fourteenth Amendment to the United States Constitution, Iowas constitutional promise of equal protection is essentially a direction that all persons similarly situated should be treated alike. 6 Racing Assn of Cent. Iowa v. Fitzgerald, 675 N.W.2d 1, 7 (Iowa 2004) *879 [hereinafter RACI II] (quoting City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313, 320 (1985)).
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and burdens amongst the citizens of Iowa. In this process, some classifications and barriers are inevitable. As a result, courts pay deference to legislative decisions when called upon to determine whether the Iowa Constitutions mandate of equality has been violated by legislative action. More specifically, when evaluating challenges based on the equal protection clause, our deference to legislative policy-making is primarily manifested in the level of scrutiny we apply to review legislative action. In most cases, we apply a very deferential standard known as the rational basis test. Id. Under the rational basis test, [t]he plaintiff has the heavy burden of showing the statute unconstitutional and must negate every reasonable basis upon which the classification may be sustained. Bierkamp v. Rogers, 293 N.W.2d 577, 57980 (Iowa 1980). In deference to the legislature, a statute will satisfy the requirements of the equal protection clause
[10] [11] [12] [13] [14] [15]
Even in the zealous protection of the constitutions mandate of equal protection, courts must give respect to the legislative process and presume its enactments are constitutional. We understand that Iowas tripartite system of government requires the legislature to make difficult policy choices, including distributing benefits
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so long as there is a plausible policy reason for the classification, the legislative facts on which the classification is apparently based rationally may have been considered to be true by the governmental decisionmaker, and the relationship of the classification to its goal is not so attenuated as to render the distinction arbitrary or irrational. RACI II, 675 N.W.2d at 7 (quoting Fitzgerald v. Racing Assn of Cent. Iowa, 539 U.S. 103, 107, 123 S.Ct. 2156, 2159, 156 L.Ed.2d 97, 103 (2003)). Although the rational basis test is deferential to legislative judgment, it is not a toothless one in Iowa. Id. at 9 (quoting Mathews v. de Castro, 429 U.S. 181, 185, 97 S.Ct. 431, 434, 50 L.Ed.2d 389, 394 (1976)). The rational basis test defers to the legislatures prerogative to make policy decisions by requiring only a plausible policy justification, mere rationality of the facts underlying the decision and, again, a merely rational relationship between the classification and the policy justification. Nonetheless, the deference built into the rational basis test is not dispositive because this court engages in a meaningful review of all legislation challenged on equal protection grounds by applying the rational basis test to the facts of each case. Id. (citing Bierkamp, 293 N.W.2d at 581).7 *880 [16] The constitutional guarantee of equal protection, however, demands certain types of statutory classifications must be subjected to closer scrutiny by courts. See, e.g., Plyler v. Doe, 457 U.S. 202, 216, 102 S.Ct. 2382, 2394, 72 L.Ed.2d 786, 799 (1982) ([W]e 16
would not be faithful to our obligations under the Fourteenth Amendment if we applied so deferential a standard to every classification.). Thus, courts apply a heightened level of scrutiny under equal protection analysis when reasons exist to suspect prejudice against discrete and insular minorities ... which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities. United States v. Carolene Prods. Co., 304 U.S. 144, 152 n. 4, 58 S.Ct. 778, 783 n. 4, 82 L.Ed. 1234, 1242 n. 4 (1938). Under this approach, classifications based on race, alienage, or national origin and those affecting fundamental rights are evaluated according to a standard known as strict scrutiny. Sherman v. Pella Corp., 576 N.W.2d 312, 317 (Iowa 1998). Classifications subject to strict scrutiny are presumptively invalid and must be narrowly tailored to serve a compelling governmental interest. In re S.A.J.B., 679 N.W.2d 645, 649 (Iowa 2004).
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A middle tier of analysis exists between rational basis and strict scrutiny. This intermediate tier has been applied to statutes classifying on the basis of gender or illegitimacy and requires the party seeking to uphold the statute to demonstrate the challenged classification is substantially related to the achievement of an important governmental objective. Sherman, 576 N.W.2d at 317. It is known as intermediate scrutiny or heightened scrutiny,8 and groups entitled to this tier of review are often called quasi-suspect groups. See Cleburne Living Ctr., 473 U.S. at 445, 105 S.Ct. at 3258, 87 L.Ed.2d at 324. To survive intermediate scrutiny, the law must not only further an important governmental interest and be substantially related to that interest, but the justification for the classification must be genuine and must not depend on broad generalizations. United States v. Virginia, 518 U.S. 515, 533, 116 S.Ct. 2264, 2275, 135 L.Ed.2d 735, 751 (1996).
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finding of facts relating to the parties and their particular circumstances. Id. These facts are referred to as adjudicative facts, see id., and the resolution of a dispute over these facts is done within the framework of a set of rules to determine the admissibility of evidence tending to prove such facts. See generally Iowa Rs. Evid. At times, however, judicial decision-making involves crafting rules of law based on social, economic, political, or scientific facts. See 2 John W. Strong, McCormick on Evidence 328, at 369 (5th ed. 1999) [hereinafter McCormick on Evidence]. These facts have been denominated as legislative facts and become relevant to judicial decision-making when courts are required to decide the constitutionality of a statute, among other occasions. Id. As a result, judicial decision-making in the context of constitutional issues can involve the process of adapting law to a volatile social-political environment. Id. at 370. Legislative facts are relevant in deciding these constitutional issues because courts must normally analyze whether there exist circumstances which constitutionally either legitimate the exercise of legislative power or substantiate the rationality of the legislative product. Id. In fact, the common role of legislative facts in constitutional cases has led to an alternative designation of legislative facts called constitutional facts to better describe those facts which assist a court in forming a judgment on a question of constitutional law. Kenneth C. Davis, An Approach to Problems of Evidence in the Administrative Process, 55 Harv. L.Rev. 364, 403 (1942). Unlike adjudicative facts, legislative or constitutional facts may be presented either formally or informally. Welsh v. Branstad, 470 N.W.2d 644, 648 (Iowa 1991). There is no formalized set of rules governing a courts ability to consider legislative or constitutional facts. See Iowa R. Evid. 5.201 (applying rule governing judicial notice only to adjudicative facts); Fed.R.Evid. 201 advisory committees note (No rule deals with judicial notice of legislative facts. ). See generally City of Council Bluffs v. Cain, 342 N.W.2d 810, 81617 (Iowa 1983) (McCormick, J., dissenting). Thus, constitutional facts are introduced into judicial decisions through independent research by judges and written briefs of the parties, as well as testimony of witnesses. See McCormick on Evidence at 38184. Importantly, constitutional facts are not subject to the rules of evidence when presented by a party in the form of witness testimony. Conceptually, testimony relating to constitutional facts is only presented as authority for the legal decision the court is required to make, and it would be inconsistent to apply formal rules of evidence to facts in the form of testimony that a court can independently obtain and consider in deciding the case.
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C. Determination of Constitutional Facts. The parties expended considerable effort developing a summary judgment record to assist the district court in deciding the legal issues presented in this case, including which level of scrutiny to apply. Before proceeding to determine these legal issues, we consider the role of the evidence offered by the parties to support their legal arguments. The district court excluded some of the offered testimony, *881 which the County has raised as an issue on appeal. Our law recognizes a distinction between adjudicative and legislative facts. Greenwood Manor v. Iowa Dept of Pub. Health, 641 N.W.2d 823, 836 (Iowa 2002). Most often, judicial decision-making is predicated solely on a
17
Nonetheless, courts consider the actual truth-content of constitutional facts. See id. at 38283. Such facts are generally disputable, and courts must rely on the most compelling data in order to give needed intellectual legitimacy to the law or rule crafted by the court. Id. at 383. Consequently, we review all of the material tendered by the parties in this case to assist us in our review of the constitutionality of the civil marriage statute. The error committed by the trial court in failing to do so is of no consequence under our de novo reviewing standard. *882 [23] D. Similarly Situated People. The County seeks to undercut the plaintiffs equal protection claim by asserting the plaintiffs are not similarly situated to heterosexuals. We consider this threshold argument before proceeding to the application of our equal protection test. We begin by recognizing the constitutional pledge of equal protection does not prohibit laws that impose classifications. Chicago & Nw. Ry. v. Fachman, 255 Iowa 989, 996, 125 N.W.2d 210, 214 (1963) (recognizing it is often necessary in accomplishing efficient and beneficial legislation to divide the subjects upon which it operates into classes). Many statutes impose classifications by granting special benefits or declaring special burdens, and the equal protection clause does not require all laws to apply uniformly to all people. Nordlinger v. Hahn, 505 U.S. 1, 10, 112 S.Ct. 2326, 2331, 120 L.Ed.2d 1, 12 (1992). Instead, equal protection demands that laws treat alike all people who are similarly situated with respect to the legitimate purposes of the law. RACI II, 675 N.W.2d at 7 (quoting Coll. Area Renters & Landlord Assn v. City of San Diego, 43 Cal.App.4th 677, 50 Cal.Rptr.2d 515, 520 (1996)) (emphasis omitted).
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opposite-sex couples. See In re Marriage Cases, 43 Cal.4th 757, 76 Cal.Rptr.3d 683, 183 P.3d 384, 435 n. 54 (2008) (analyzing and rejecting the governments threshold argument that same-sex couples are not similarly situated to opposite-sex couples); Kerrigan v. Commr of Pub. Health, 289 Conn. 135, 957 A.2d 407, 42324 & n. 19 (2008) (same). The County references this threshold test in this case and asserts the plaintiffs are not similarly situated to opposite-sex couples so as to necessitate further equal protection analysis because the plaintiffs cannot procreate naturally. In other words, the County argues the statute does not treat similarly situated persons differently, but merely treats dissimilar persons differently. In considering whether two classes are similarly situated, a court cannot simply look at the trait used by the legislature to define a classification under a statute and conclude a person without that trait is not similarly situated to persons with the trait. See Racing Assn of Cent. Iowa v. Fitzgerald, 648 N.W.2d 555, 559 (Iowa 2002) (RACI I); Joseph Tussman & Jacobus tenBroek, The Equal Protection of the Laws, 37 Cal. L.Rev. 341, 34447 (1949) [hereinafter Tussman & tenBroek]. The equal protection clause does not merely ensure the challenged statute applies equally to all people in the legislative classification. [S]imilarly situated cannot mean simply similar in the possession of the classifying trait. All members of any class are similarly situated in this respect and consequently, any classification whatsoever would be reasonable by this test. Tussman & tenBroek, 37 Cal. L.Rev. at 345. In the same way, the similarly situated *883 requirement cannot possibly be interpreted to require plaintiffs to be identical in every way to people treated more favorably by the law. No two people or groups of people are the same in every way, and nearly every equal protection claim could be run aground onto the shoals of a threshold analysis if the two groups needed to be a mirror image of one another. Such a threshold analysis would hollow out the constitutions promise of equal protection.
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This requirement of equal protectionthat the law must treat all similarly situated people the samehas generated a narrow threshold test. Under this threshold test, if plaintiffs cannot show as a preliminary matter that they are similarly situated, courts do not further consider whether their different treatment under a statute is permitted under the equal protection clause. See, e.g., Timberland Partners XXI, LLP v. Iowa Dept of Revenue, 757 N.W.2d 172, 17677 (Iowa 2008) (applying threshold analysis); In re Det. of Hennings, 744 N.W.2d 333, 33840 (Iowa 2008) (same); Grovijohn v. Virjon, Inc., 643 N.W.2d 200, 204 (Iowa 2002) (same). Not only have we utilized this test in the past, but courts from other jurisdictions have confronted it in cases involving equal protection challenges to statutes that restrict marriage to
Thus, equal protection before the law demands more than the equal application of the classifications made by the law. The law itself must be equal. See Fachman, 255 Iowa at 998, 125 N.W.2d at 215 ( The equal protection of the laws is a pledge of the protection of equal laws .... (quoting Yick Wo v. Hopkins, 118 U.S. 356, 369, 6 S.Ct. 1064, 1070, 30 L.Ed. 220, 226 (1886))). In other words, to truly ensure equality before the law, the equal protection guarantee requires that laws treat all those who are similarly situated with respect to the purposes of the 18
law alike. RACI II, 675 N.W.2d at 7. This requirement makes it impossible to pass judgment on the reasonableness of a [legislative] classification without taking into consideration, or identifying, the purpose of the law. Tussman & tenBroek, 37 Cal. L.Rev. at 347. The purposes of the law must be referenced in order to meaningfully evaluate whether the law equally protects all people similarly situated with respect to those purposes. For these reasons, the trait asserted by the County is insufficient to support its threshold argument. Nevertheless, we have said our marriage laws are rooted in the necessity of providing an institutional basis for defining the fundamental relational rights and responsibilities of persons in organized society. Laws v. Griep, 332 N.W.2d 339, 341 (Iowa 1983); see also Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44, 58 (1993) (stating civil marriage is a partnership to which both partners bring their financial resources as well as their individual energies and efforts (quoting Gussin v. Gussin, 73 Haw. 470, 836 P.2d 484, 491 (1992))). These laws also serve to recognize the status of the parties committed relationship. See Madison v. Colby, 348 N.W.2d 202, 206 (Iowa 1984) (stating the marriage state is not one entered into for the purpose of labor and support alone, but also includes the comfort and happiness of the parties to the marriage contract (quoting Price v. Price, 91 Iowa 693, 69798, 60 N.W. 202, 203 (Iowa 1894)) (emphasis added)); Hamilton v. McNeill, 150 Iowa 470, 478, 129 N.W. 480, 482 (1911) (The marriage to be dissolved is not a mere contract, but is a status.); Turner v. Hitchcock, 20 Iowa 310, 325 (1866) (Lowe, C.J., concurring) (observing that marriage changes the parties legal and social status). Therefore, with respect to the subject and purposes of Iowas marriage laws, we find that the plaintiffs are similarly situated compared to heterosexual persons. Plaintiffs are in committed and loving relationships, many raising families, just like heterosexual couples. Moreover, official recognition of their status provides an institutional basis for defining their fundamental relational rights and responsibilities, just as it does for heterosexual couples. Society benefits, for example, from providing same-sex couples a stable framework within which to raise their children and the power to make health care and end-of-life decisions for loved ones, just as it does when that framework is provided for opposite-sex couples. In short, for purposes of Iowas marriage laws, which are designed to bring a sense of order to the legal relationships of *884 committed couples and their families in myriad ways, plaintiffs are similarly situated in every important respect, but for their sexual orientation.
As indicated above, this distinction cannot defeat the application of equal protection analysis through the application of the similarly situated concept because, under this circular approach, all distinctions would evade equal protection review. Therefore, with respect to the governments purpose of providing an institutional basis for defining the fundamental relational rights and responsibilities of persons, same-sex couples are similarly situated to opposite-sex couples.9
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E. Classification Undertaken in Iowa Code Section 595.2. Plaintiffs believe Iowa Code section 595.2 classifies on the bases of gender and sexual orientation. The County argues the same-sex marriage ban does not discriminate on either basis. The district court held section 595.2 classifies according to gender. As we will explain, we believe the ban on civil marriages between two people of the same sex classifies on the basis of sexual orientation. The County initially points out that section 595.2 does not explicitly refer to sexual orientation and does not inquire into whether either member of a proposed civil marriage is sexually attracted to the other. Consequently, it seizes on these observations to support its claim that the statute does not establish a classification on the basis of sexual orientation because the same-sex civil marriage ban does not grant or withhold the benefits flowing from the statute based on sexual preference. Instead, the County argues, section 595.2 only incidentally impacts disparately upon gay and lesbian people. The Countys position reveals the importance of accurately and precisely defining the classification in analyzing all equal protection challenges. The manner in which a classification is defined impacts the utility of an equal protection analysis as a means of revealing discrimination. Therefore, it is critical that a court reviewing the statute *885 identify the true nature of the classification. It is true the marriage statute does not expressly prohibit gay and lesbian persons from marrying; it does, however, require that if they marry, it must be to someone of the opposite sex. Viewed in the complete context of marriage, including intimacy, civil marriage with a person of the opposite sex is as unappealing to a gay or lesbian person as civil marriage with a person of the same sex is to a heterosexual. Thus, the right of a gay or lesbian person under the marriage statute to enter into a civil marriage only with a person of the opposite sex is no right at all. Under such a law, gay or lesbian individuals cannot simultaneously fulfill their deeply felt need for a committed personal relationship, as influenced by their 19
sexual orientation, and gain the civil status and attendant benefits granted by the statute. Instead, a gay or lesbian person can only gain the same rights under the statute as a heterosexual person by negating the very trait that defines gay and lesbian people as a classtheir sexual orientation. In re Marriage Cases, 183 P.3d at 441. The benefit denied by the marriage statutethe status of civil marriage for same-sex couplesis so closely correlated with being homosexual as to make it apparent the law is targeted at gay and lesbian people as a class. See Lawrence, 539 U.S. at 583, 123 S.Ct. at 2486, 156 L.Ed.2d at 529 (OConnor, J., concurring) (reviewing criminalization of homosexual sodomy and concluding that [w]hile it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, [the] sodomy law is targeted at more than conduct. It is instead directed toward gay persons as a class.). The Courts decision in Romer v. Evans, 517 U.S. 620, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996), supports this conclusion. Romer can be read to imply that sexual orientation is a trait that defines an individual and is not merely a means to associate a group with a type of behavior. See Romer, 517 U.S. at 632, 116 S.Ct. at 1627, 134 L.Ed.2d at 86566 (holding an amendment to a state constitution pertaining to homosexual ... orientation expresses animus toward the class that it affects). By purposefully placing civil marriage outside the realistic reach of gay and lesbian individuals, the ban on same-sex civil marriages differentiates implicitly on the basis of sexual orientation. See Kerrigan, 957 A.2d at 431 n. 24; Conaway v. Deane, 401 Md. 219, 932 A.2d 571, 605 (2007). Thus, we proceed to analyze the constitutionality of the statute based on sexual orientation discrimination.
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Although neither we nor the United States Supreme Court has decided which level of scrutiny applies to legislative classifications *886 based on sexual orientation, numerous Supreme Court equal protection cases provide a general framework to guide our analysis under the Iowa Constitution.10 To say a general framework exists is not to say the Supreme Court has provided a precise formula for determining when legislative action is subject to a heightened form of scrutiny. See Cleburne Living Ctr., 473 U.S. at 472 n. 24, 105 S.Ct. at 3272 n. 24, 87 L.Ed.2d at 341 n. 24 (Marshall, J., concurring in part and dissenting in part) (No single talisman can define those groups likely to be the target of classifications offensive to the Fourteenth Amendment and therefore warranting heightened or strict scrutiny; experience, not abstract logic, must be the primary guide.); Conaway, 932 A.2d at 606 (There is no brightline diagnostic, annunciated by ... the U.S. Supreme Court, by which a suspect or quasi-suspect class may be readily recognized.). Instead, the Supreme Court has expressed a number of general principles to assist in identifying the appropriate level of scrutiny.
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Classifications based on factors like race, alienage, national origin, sex, or illegitimacy are so seldom relevant to achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy. Cleburne Living Ctr., 473 U.S. at 440, 105 S.Ct. at 3254, 87 L.Ed.2d at 320. Rather than bearing some relationship to the burdened classs ability to contribute to society, such classifications often reflect irrelevant stereotypes. Id. at 44041, 105 S.Ct. at 325455, 87 L.Ed.2d at 32021. For these reasons and because such discrimination is unlikely to be soon rectified by legislative means, laws based on these types of classifications must withstand more intense judicial scrutiny than other types of classifications. Id.
F. Framework for Determining Appropriate Level of Judicial Scrutiny. Our determination that the marriage statute employs a sexual-orientation-based classification does not, of course, control the outcome of our equal protection inquiry. Most statutes, one way or the other, create classifications. Clements v. Fashing, 457 U.S. 957, 967, 102 S.Ct. 2836, 2845, 73 L.Ed.2d 508, 518 (1982) (Classification is the essence of all legislation, and only those classifications which are invidious, arbitrary, or irrational offend the Equal Protection Clause of the Constitution.). To determine if this particular classification violates constitutional principles of equal protection, we must next ask what level of scrutiny applies to classifications of this type. The County argues the more deferential rational basis test should apply, while plaintiffs argue closer scrutiny is appropriate.
Instead of adopting a rigid formula to determine whether certain legislative classifications warrant more demanding constitutional analysis, the Supreme Court has looked to four factors.11 *887 Conaway, 932 A.2d at 606 (discussing factors examined by Supreme Court in considering use of heightened scrutiny). The Supreme Court has considered: (1) the history of invidious discrimination against the class burdened by the legislation;12 (2) whether the characteristics that distinguish the class indicate a typical class members ability to contribute to society;13 (3) whether the distinguishing characteristic is immutable or beyond the class members control;14 and (4) the political power of the *888 subject class.15 In considering whether sexual orientation is a suspect class, a number of our sister jurisdictions have referenced similar factors. See In re
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20
Marriage Cases, 183 P.3d at 44243; Kerrigan, 957 A.2d at 426; Conaway, 932 A.2d at 60607; Andersen v. King County, 158 Wash.2d 1, 138 P.3d 963, 974 (2006). Both parties recognize the relevance of these factors. They disagree, however, over how the factors should be applied to decide whether sexual orientation is a suspect or quasi-suspect class. The County essentially views the factors as elements, asserting each must be fulfilled before we may abandon our deferential level of scrutiny. To this end, the County argues the immutability and political powerlessness elements are not satisfied in this case. In its effort to treat the factors as essential elements, the County overlooks the flexible manner in which the Supreme Court has applied the four factors in the past.16 For purposes of state constitutional *889 analysis, we likewise refuse to view all the factors as elements or as individually demanding a certain weight in every case. Instead, we analyze each of the four factors and assess how each bears on the question of whether the Iowa Constitution requires a more searching scrutiny be applied to the specific classification at issue. We note the first two factorshistory of intentional discrimination and relationship of classifying characteristic to a persons ability to contributehave always been present when heightened scrutiny has been applied. They have been critical to the analysis and could be considered as prerequisites to concluding a group is a suspect or quasi-suspect class. However, we consider the last two factorsimmutability of the characteristic and political powerlessness of the groupto supplement the analysis as a means to discern whether a need for heightened scrutiny exists. G. Determination of Appropriate Level of Scrutiny. Guided by the established framework, we next consider each of the four traditional factors and assess how each bears on the question of whether the constitution demands a more searching scrutiny be applied to the sexual-orientation-based classification in Iowas marriage statute. 1. History of discrimination against gay and lesbian people. The first consideration is whether gay and lesbian people have suffered a history of purposeful unequal treatment because of their sexual orientation. The County does not, and could not in good faith, dispute the historical reality that gay and lesbian people as a group have long been the victim of purposeful and invidious discrimination because of their sexual orientation. The long and painful history of discrimination against gay and lesbian persons is epitomized by the criminalization of
homosexual conduct in many parts of this country until very recently. See Lawrence, 539 U.S. at 57879, 123 S.Ct. at 248384, 156 L.Ed.2d at 520 (invalidating criminalization of homosexual sodomy in 2003). Additionally, only a few years ago persons identified as homosexual were dismissed from military service regardless of past dedication and demonstrated valor. Public employees identified as gay or lesbian have been thought to pose security risks due to a perceived risk of extortion resulting from a threat of public exposure. School-yard bullies have psychologically ground children with apparently gay or lesbian sexual orientation in the cruel mortar and pestle of school-yard prejudice. At the same time, lesbian and gay people continue to be frequent victims of hate crimes. See Criminal Justice Information Servs. Div., FBI, Hate Crime Statistics 2007, http://www.fbi. gov/ucr/hc2007/victims.htm (according to FBI-collected data, the only hate crimes occurring more frequently than sexual-orientation-motivated hate crimes are crimes based on race or religious bias). The Iowa General Assembly has recognized the need to address sexual-orientation-based discrimination by including sexual orientation as a characteristic protected in the Iowa Civil Rights Act, by defining hate crimes to include certain offenses committed because of the victims sexual orientation, and by prohibiting harassing or bullying behavior in schools based on sexual orientation. See Iowa Code 216.2.18A (Iowa Civil Rights Act) (sexual-orientation-based discrimination); id. 280.28 (school harassment and *890 bullying); id. 729A.2 (hate crimes committed because of the victims sexual orientation). These statutory enactments demonstrate a legislative recognition of the need to remedy historical sexual-orientation-based discrimination.17 In sum, this history of discrimination suggests any legislative burdens placed on lesbian and gay people as a class are more likely than others to reflect deep-seated prejudice rather than legislative rationality in pursuit of some legitimate objective. Plyler, 457 U.S. at 216 n. 14, 102 S.Ct. at 2394 n. 14, 72 L.Ed.2d at 799 n. 14. This observation favors an elevated scrutiny to uncover any such prejudice.
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2. Sexual orientation and the ability to contribute to society. A second relevant consideration is whether the characteristic at issuesexual orientationis related to the persons ability to contribute to society. Heightened scrutiny is applied when the classification bears no relationship to a persons ability to contribute to society. The existence of this factor indicates the classification is likely based on irrelevant stereotypes and prejudice. 21
Kerrigan, 957 A.2d at 453. A classification unrelated to a persons ability to perform or contribute to society typically reflects prejudice and antipathya view that those in the burdened class are not as worthy or deserving as others or reflect[s] outmoded notions of the relative capabilities of persons with the characteristic. Cleburne Living Ctr., 473 U.S. at 44041, 105 S.Ct. at 325456, 87 L.Ed.2d at 32021. Not surprisingly, none of the same-sex marriage decisions from other state courts around the nation have found a persons sexual orientation to be indicative of the persons general ability to contribute to society.18 See, e.g., In re Marriage Cases, 183 P.3d at 442; Kerrigan, 957 A.2d at 43436; Dean v. District of Columbia, 653 A.2d 307, 345 (D.C.1995); Conaway, 932 A.2d at 609. More importantly, the Iowa legislature has recently declared as the public policy of this state that sexual orientation *891 is not relevant to a persons ability to contribute to a number of societal institutions other than civil marriage. See Iowa Code 216.6 (employment); id. 216.7 (public accommodations); id. 216.8 (housing); id. 216.9 (education); id. 216.10 (credit practices).19 Significantly, we do not construe Iowa Code chapter 216 to allow marriage between persons of the same sex, a construction expressly forbidden in the Iowa Code. See id. 216.18A ([Chapter 216] shall not be construed to allow marriage between persons of the same sex, in accordance with chapter 595.). Rather, we merely highlight the reality that chapter 216 and numerous other statutes and regulations demonstrate sexual orientation is broadly recognized in Iowa to be irrelevant to a persons ability to contribute to society.20 Those statutes and regulations reflect at least some measure of legislative and executive awareness that discrimination based on sexual orientation is often predicated on prejudice and stereotype and further express a desire to remove sexual orientation as an obstacle to the ability of gay and lesbian people to achieve their full potential. Therefore, we must scrutinize more *892 closely those classifications that suggest a law may be based on prejudice and stereotype because laws of that nature are incompatible with the constitutional understanding that each person is to be judged individually and is entitled to equal justice under the law. Plyler, 457 U.S. at 217 n. 14, 102 S.Ct. at 2394 n. 14, 72 L.Ed.2d at 799 n. 14. Thus, although we do not interpret chapter 216 to allow same-sex marriage, we rely on the legislative judgment underlying chapter 216 to determine the appropriate level of scrutiny when sexual orientation is the basis for a statutory classification. Based on Iowa statutes and regulations, it is clear sexual orientation is no longer viewed in Iowa as an impediment to the ability of a person to contribute to society.
3. Immutability of sexual orientation. The parties, consistent with the same-sex-marriage scholarship, opinions, and jurisprudence, contest whether sexual orientation is immutable or unresponsive to attempted change. The County seizes on this debate to argue the summary judgment granted by the district court in this case was improper because plaintiffs could not prove, as a matter of fact, that sexuality is immutable. This argument, however, essentially limits the constitutional relevance of mutability to those instances in which the trait defining the burdened class is absolutely impervious to change. To evaluate this argument, we must first consider the rationale for using immutability as a factor.
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A human trait that defines a group is immutable when the trait exists solely by the accident of birth, Frontiero v. Richardson, 411 U.S. 677, 686, 93 S.Ct. 1764, 1770, 36 L.Ed.2d 583, 591 (1973) (Brennan, J., plurality opinion), or when the person with the trait has no ability to change it, Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 360, 98 S.Ct. 2733, 2784, 57 L.Ed.2d 750, 815 (1978). Immutability is a factor in determining the appropriate level of scrutiny because the inability of a person to change a characteristic that is used to justify different treatment makes the discrimination violative of the rather basic concept of our system that legal burdens should bear some relationship to individual responsibility. Frontiero, 411 U.S. at 686, 93 S.Ct. at 1770, 36 L.Ed.2d at 591 (Brennan, J., plurality opinion) (quoting Weber v. Aetna Cas. & Sur. Co., 406 U.S. 164, 175, 92 S.Ct. 1400, 1407, 31 L.Ed.2d 768, 779 (1972)); accord Plyler, 457 U.S. at 217 n. 14, 102 S.Ct. at 2394 n. 14, 72 L.Ed.2d at 799 n. 14 (Legislation imposing special disabilities upon groups disfavored by virtue of circumstances beyond their control suggests the kind of class or caste treatment that the Fourteenth Amendment was designed to abolish.). Put another way, when a characteristic is immutable, different treatment based on this characteristic seems all the more invidious and unfair. Nan D. Hunter, The Sex Discrimination Argument in Gay Rights Cases, 9 J.L. & Poly 397, 403 (2001). Additionally, immutability can relate to the scope and permanency of the barrier imposed on the group. Temporary barriers tend to be less burdensome on a group and more likely to actually advance a legitimate governmental interest. Consequently, such barriers normally do not warrant heightened scrutiny. See Sosna v. Iowa, 419 U.S. 393, 406, 95 S.Ct. 553, 561, 42 L.Ed.2d 532, 54445 (1975) (one-year residency requirement for divorce permitted in part because the constraint was only temporary); Vlandis v. Kline, 412 U.S. 441, 453, 93 S.Ct. 2230, 2236, 37 L.Ed.2d 63, 72 (1973) (bona fide state resident requirement for college tuition permissible when students are provided an opportunity to prove they have
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22
become residents). The permanency of the barrier also depends on the ability of the individual *893 to change the characteristic responsible for the discrimination. This aspect of immutability may separate truly victimized individuals from those who have invited discrimination by changing themselves so as to be identified with the group. As implied by Justice Ferren, in dissent, in Dean: The degree to which an individual controls, or cannot avoid, the acquisition of the defining trait, and the relative ease or difficulty with which a trait can be changed, are relevant to whether a classification is suspect or quasi-suspect because this inquiry is one way of asking whether someone, rather than being victimized, has voluntarily joined a persecuted group and thereby invited the discrimination. 653 A.2d at 346 (Ferren, J., dissenting).
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revd on other grounds, 155 F.3d 628 (2d Cir.1998)). Sexual orientation influences the formation of personal relationships between all peopleheterosexual, gay, or lesbianto fulfill each persons fundamental needs for love and attachment. Accordingly, because sexual orientation is central to personal identity and may be altered [if at all] only at the expense of significant damage to the individuals sense of self, classifications based on sexual orientation are no less entitled to consideration as a suspect or quasi-suspect class than any other group that has been deemed to exhibit an immutable characteristic. Id. at 43839 (quoting Jantz v. Muci, 759 F.Supp. 1543, 1548 (D.Kan.1991), revd on other grounds, 976 F.2d 623 (10th Cir.1992)). Sexual orientation is not the type of human trait that allows courts to relax their standard of review because the barrier is temporary or susceptible to self-help. 4. Political powerlessness of lesbian and gay people. As observed, the political power of the burdened class has been referenced repeatedly in Supreme Court cases determining the level of scrutiny to be applied to a given piece of legislation. Unfortunately, the Court has never defined what it means to be politically powerless for purposes of this analysis, nor has it quantified a maximum amount of political power a group may enjoy while still *894 receiving the protection from unfair discrimination accompanying heightened scrutiny. The County points to the numerous legal protections gay and lesbian people have secured against discrimination, and the County argues those protections demonstrate gay and lesbian people are not a politically powerless class. The Countys argument implies gay and lesbian people must be characterized by a complete, or nearly complete, lack of political power before courts should subject sexual-orientation-based legislative burdens to a heightened scrutiny. Notwithstanding the lack of a mathematical equation to guide the analysis of this factor, a number of helpful general principles related to the political power of suspect classes can be culled from the Supreme Courts cases. First, these cases show absolute political powerlessness is not necessary to subject legislative burdens on a certain class to heightened scrutiny. For example, females enjoyed at least some measure of political power when the Supreme Court first heightened its scrutiny of gender classifications. See Frontiero, 411 U.S. at 68588 & n. 17, 93 S.Ct. at 176972 & n. 17, 36 L.Ed.2d at 59192 & n. 17 (Brennan, J., plurality opinion) (subjecting gender classifications to heightened scrutiny after observing Civil Rights Act of 1964 and Equal Pay Act of 1963 prohibited sex discrimination and noting the position of women in America [had] improved markedly by 1973 such that 23
Importantly, this background reveals courts need not definitively resolve the nature-versus-nurture debate currently raging over the origin of sexual orientation in order to decide plaintiffs equal protection claims. The constitutional relevance of the immutability factor is not reserved to those instances in which the trait defining the burdened class is absolutely impossible to change. Compare Sherman, 576 N.W.2d at 317 (suggesting heightened scrutiny is applicable to gender classifications), with Iowa Code 144.23 (providing legal procedure to obtain new birth certificate indicating change in gender). That is, we agree with those courts that have held the immutability prong of the suspectness inquiry surely is satisfied when ... the identifying trait is so central to a persons identity that it would be abhorrent for government to penalize a person for refusing to change [it]. Kerrigan, 957 A.2d at 438 (quoting Watkins v. U.S. Army, 875 F.2d 699, 726 (9th Cir.1989) (Norris, J., concurring in the judgment)); see also In re Marriage Cases, 183 P.3d at 442 (Because a persons sexual orientation is so integral an aspect of ones identity, it is not appropriate to require a person to repudiate or change his or her sexual orientation in order to avoid discriminatory treatment.). In this case, the County acknowledges sexual orientation is highly resistant to change. Additionally, sexual orientation forms a significant part of a persons identity. Kerrigan, 957 A.2d at 438 (quoting Able v. United States, 968 F.Supp. 850, 863 (E.D.N.Y.1997),
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women [did] not constitute a small and powerless minority). Second, Supreme Court jurisprudence establishes that a groups current political powerlessness is not a prerequisite to enhanced judicial protection. [I]f a groups current political powerlessness [was] a prerequisite to a characteristics being considered a constitutionally suspect basis for differential treatment, it would be impossible to justify the numerous decisions that continue to treat sex, race, and religion as suspect classifications. In re Marriage Cases, 183 P.3d at 443. Race continues to be a suspect classification, Grutter v. Bollinger, 539 U.S. 306, 326, 123 S.Ct. 2325, 2337, 156 L.Ed.2d 304, 331 (2003), even though racial minorities enjoy growing political power.21 Likewise, gender classifications receive various forms of heightened scrutiny, even though women continue to gain political power. See, e.g., Virginia, 518 U.S. at 53233, 116 S.Ct. at 2275, 135 L.Ed.2d at 75152 (applying intermediate scrutiny).
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8, 2007) [hereinafter Schuman]; Human Rights Campaign, Statewide Marriage Prohibitions (2008), available at htt p://www.hrc.org/documents/marriage_prohibitions.pdf (mapping states enactment of marriage prohibitions). Thus, although equal rights for gays and lesbians have been increasingly recognized in the political arena, the right to civil marriage is a notable exception to this trend. Consequently, the specific right sought in this case has largely lacked any extensive political support and has actually experienced an affirmative backlash. We are convinced gay and lesbian people are not so politically powerful as to overcome the unfair and severe prejudice that history suggests produces discrimination based on sexual orientation. Gays and lesbians certainly possess no more political power than women enjoyed four decades ago when the Supreme Court began subjecting gender-based legislation to closer scrutiny. Additionally, gay and lesbian people are, as a class, currently no more powerful than women or members of some racial minorities. These facts demonstrate, at the least, the political-power factor does not weigh against heightened judicial scrutiny of sexual-orientation-based legislation.
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While a more in-depth discussion of the history of the political-power factor is possible, see Kerrigan, 957 A.2d at 43944, we are satisfied, for the purpose of analyzing the Iowa Constitution, the political powerlessness factor of the level-of-scrutiny inquiry does not require a showing of absolute political powerlessness. Rather, the touchstone of the analysis should be whether the group lacks sufficient political strength to bring a prompt end to the prejudice and discrimination through traditional political means. Id. at 444. It is also important to observe that the political power of gays and lesbians, while responsible for greater acceptance and decreased discrimination, has done little to remove barriers to civil marriage. Although a small number of state legislatures have approved civil unions for gay and lesbian people without judicial intervention, no legislature has secured the right to civil marriage for gay and lesbian *895 people without court order.22 The myriad statutes and regulatory protections against discrimination based on sexual orientation in such areas as employment, housing, public accommodations, and education have not only been absent in the area of marriage, but legislative bodies have taken affirmative steps to shore up the concept of traditional marriage by specifically excluding gays and lesbians. Like Iowa, over forty other states have passed statutes or constitutional amendments to ban same-sex marriages. See Ben Schuman, Note, Gods & Gays: Analyzing the SameSex Marriage Debate From a Religious Perspective, 96 Geo. L.J. 2103, 210708 (2008) (recognizing forty-two states with laws prohibiting same-sex marriage as of November
5. Classifications based on sexual orientation demand closer scrutiny. In summarizing the rationale supporting heightened scrutiny of legislation classifying on the basis of sexual orientation, it would be difficult to improve upon the words of the Supreme Court of Connecticut: Gay persons have been subjected to and stigmatized by a long history of purposeful and invidious discrimination that continues to manifest itself in society. The characteristic that defines the members of this groupattraction to persons of the same sexbears no logical relationship to their ability to perform in society, either in familial relations or otherwise as productive citizens. Because sexual orientation is such an essential component of personhood, even if there is some possibility that a persons sexual preference can be altered, it would be wholly unacceptable for the state to require anyone to do so. Gay persons also represent a distinct minority of the population. It is true, of course, that gay persons recently have made significant *896 advances in 24
obtaining equal treatment under the law. Nonetheless, we conclude 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. Kerrigan, 957 A.2d at 432. But see Conaway, 932 A.2d at 60914 (holding sexual-orientation-based legislation is not entitled to heightened scrutiny because lesbian and gay people are not politically powerless); Andersen, 138 P.3d at 974 (determining plaintiffs failed to satisfy burden to prove homosexuality is not an immutable trait and consequently holding sexual-orientation-based distinctions do not demand closer judicial scrutiny). We agree with the observations of the Connecticut Supreme Court. The factors established to guide our determination of the level of scrutiny to utilize in our examination of the equal protection claim in this case all point to an elevated level of scrutiny. Accordingly, we hold that legislative classifications based on sexual orientation must be examined under a heightened level of scrutiny under the Iowa Constitution. H. Application of Heightened Scrutiny. Plaintiffs argue sexual-orientation-based statutes should be subject to the most searching scrutiny. The County asserts Iowas marriage statute, section 595.2, may be reviewed, at most, according to an intermediate level of scrutiny. Because we conclude Iowas same-sex marriage statute cannot withstand intermediate scrutiny, we need not decide whether classifications based on sexual orientation are subject to a higher level of scrutiny. Thus, we turn to a discussion of the intermediate scrutiny standard.23 1. Intermediate scrutiny standard. To withstand intermediate scrutiny, a statutory classification must be substantially related to an important governmental objective. *897 Clark v. Jeter, 486 U.S. 456, 461, 108 S.Ct. 1910, 1914, 100 L.Ed.2d 465, 472 (1988). In applying an intermediate standard to review gender-based classifications, the Supreme Court has stated: Focusing on the differential treatment or denial of opportunity for which relief is sought, the reviewing court must determine whether the proffered justification is exceedingly persuasive. Virginia, 518 U.S. at 53233, 116 S.Ct. at 2275, 135 L.Ed.2d at 751. To this end, courts evaluate whether the proffered governmental objectives are
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important and whether the statutory classification is substantially related to the achievement of those objectives. Id. at 533, 116 S.Ct. at 2275, 135 L.Ed.2d at 751 (quoting Miss. Univ. for Women v. Hogan, 458 U.S. 718, 724, 102 S.Ct. 3331, 3336, 73 L.Ed.2d 1090, 1098 (1982)). 2. Statutory classification: exclusion of gay and lesbian people from civil marriage. To identify the statutory classification, we focus on the differential treatment or denial of opportunity for which relief is sought. Id. at 53233, 116 S.Ct. at 2275, 135 L.Ed.2d at 751 (considering categorical exclusion of women from institution of higher education). Plaintiffs bring this lawsuit complaining of their exclusion from the institution of civil marriage. In response, the County offers support for the legislatures decision to statutorily establish heterosexual civil marriage. Because the relevant focal point is the opportunity sought by the plaintiffs, the issue presented by this lawsuit is whether the state has exceedingly persuasive reasons for denying civil marriage to same-sex couples, not whether state-sanctioned, heterosexual marriage is constitutional. See id. at 531, 116 S.Ct. at 2274, 135 L.Ed.2d at 751. Thus, the question we must answer is whether excluding gay and lesbian people from civil marriage is substantially related to any important governmental objective. 3. Governmental objectives. The County has proffered a number of objectives supporting the marriage statute. These objectives include support for the traditional institution of marriage, the optimal procreation and rearing of children, and financial considerations.24
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The first step in scrutinizing a statutory classification can be to determine whether the objectives purportedly advanced by the classification are important. The burden of justification is demanding and it rests entirely on the State. Id. at 533, 116 S.Ct. at 2275, 135 L.Ed.2d at 751. Where we find, or can assume, the proffered governmental interests are sufficiently weighty to be called important, the critical inquiry is whether these governmental objectives can fairly be said to be advanced by the legislative classification. See, e.g., Fed. Land Bank v. Arnold, 426 N.W.2d 153, 156 (Iowa 1988) (First we must examine the legitimacy of the end to be achieved; we then scrutinize the means used to achieve that end.). In this analysis, we drill down to analyze the link *898 between classification and objective. Romer, 517 U.S. at 632, 116 S.Ct. at 1627, 134 L.Ed.2d at 866.
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a. Maintaining traditional marriage. First, the County argues the same-sex marriage ban promotes the integrity of traditional marriage by maintaining the historical and
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25
traditional marriage norm ( [as] one between a man and a woman). This argument is straightforward and has superficial appeal. A specific tradition sought to be maintained cannot be an important governmental objective for equal protection purposes, however, when the tradition is nothing more than the historical classification currently expressed in the statute being challenged. When a certain tradition is used as both the governmental objective and the classification to further that objective, the equal protection analysis is transformed into the circular question of whether the classification accomplishes the governmental objective, which objective is to maintain the classification. In other words, the equal protection clause is converted into a barren form of words when discrimination ... is made an end in itself. Tussman & tenBroek, 37 Cal. L.Rev. at 357 (quoting Truax v. Raich, 239 U.S. 33, 41, 36 S.Ct. 7, 10, 60 L.Ed. 131, 135 (1915)). This precise situation is presented by the Countys claim that the statute in this case exists to preserve the traditional understanding of marriage. The governmental objective identified by the Countyto maintain the traditional understanding of marriageis simply another way of saying the governmental objective is to limit civil marriage to opposite-sex couples. Opposite-sex marriage, however, is the classification made under the statute, and this classification must comply with our principles of equal protection. Thus, the use of traditional marriage as both the governmental objective and the classification of the statute transforms the equal protection analysis into the question of whether restricting marriage to opposite-sex couples accomplishes the governmental objective of maintaining opposite-sex marriage. This approach is, of course, an empty analysis. It permits a classification to be maintained for its own sake. Kerrigan, 957 A.2d at 478 (quoting Romer, 517 U.S. at 635, 116 S.Ct. at 1629, 134 L.Ed.2d at 868). Moreover, it can allow discrimination to become acceptable as tradition and helps to explain how discrimination can exist for such a long time. If a simple showing that discrimination is traditional satisfies equal protection, previous successful equal protection challenges of invidious racial and gender classifications would have failed. Consequently, equal protection demands that the classification ([that is], the exclusion of gay [persons] from civil marriage) must advance a state interest that is separate from the classification itself. Id. (quoting Hernandez v. Robles, 7 N.Y.3d 338, 821 N.Y.S.2d 770, 855 N.E.2d 1, 33 (2006) (Kaye, C.J., dissenting)); see also Romer, 517 U.S. at 635, 116 S.Ct. at 1629, 134 L.Ed.2d at 868 (rejecting classification of persons undertaken for its own sake).
[W]hen tradition is offered to justify preserving a statutory scheme that has been challenged on equal protection grounds, we must determine whether the reasons underlying that tradition are sufficient to satisfy constitutional requirements. Kerrigan, 957 A.2d at 47879 (emphasis added). Thus, we must analyze the legislatures objective in maintaining the traditional classification being challenged. The reasons underlying traditional marriage may include the other objectives asserted by the County, objectives we will separately address in this decision. However, some underlying reason other than *899 the preservation of tradition must be identified.25 Because the County offers no particular governmental reason underlying the tradition of limiting civil marriage to heterosexual couples, we press forward to consider other plausible reasons for the legislative classification.
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b. Promotion of optimal environment to raise children. Another governmental objective proffered by the County is the promotion of child rearing by a father and a mother in a marital relationship which social scientists say with confidence is the optimal milieu for child rearing. This objective implicates the broader governmental interest to promote the best interests of children. The best interests of children is, undeniably, an important governmental objective. Yet, we first examine the underlying premise proffered by the County that the optimal environment for children is to be raised within a marriage of both a mother and a father. Plaintiffs presented an abundance of evidence and research, confirmed by our independent research, supporting the proposition that the interests of children are served equally by same-sex parents and opposite-sex parents. On the other hand, we acknowledge the existence of reasoned opinions that dual-gender parenting is the optimal environment for children. These opinions, while thoughtful and sincere, were largely unsupported by reliable scientific studies.26
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Even assuming there may be a rational basis at this time to believe the legislative classification advances a legitimate government interest, this assumed fact would not be sufficient to survive the equal protection analysis applicable in this case. In order to ensure this classification based on sexual orientation is not borne of prejudice and stereotype, intermediate scrutiny demands a closer relationship between the legislative classification and the purpose of the classification than mere rationality. Under intermediate scrutiny, the relationship between the governments goal and the classification employed to 26
further that goal must be substantial. Clark, 486 U.S. at 461, 108 S.Ct. at 1914, 100 L.Ed.2d at 472. In order to evaluate that relationship, it is helpful to consider whether the legislation is over-inclusive or under-inclusive. See RACI II, 675 N.W.2d at 10 (considering under-inclusion and over-inclusion even in the rational basis context). A statute is under-inclusive when the classification made in the statute does not include all who are similarly situated with respect to the purpose of the law. Tussman & tenBroek, 37 Cal. L.Rev. at 348. An under-inclusive statute means all people *900 included in the statutory classification have the trait that is relevant to the aim of the statute, but other people with the trait are not included in the classification. See id. A statute is over-inclusive when the classification made in the statute includes more persons than those who are similarly situated with respect to the purpose of the law. See id. at 351. An over-inclusive statute imposes a burden upon a wider range of individuals than are included in the class of those with the trait relevant to the aim of the law. Id. As the degree to which a statutory classification is shown to be over-inclusive or under-inclusive increases, so does the difficulty in demonstrating the classification substantially furthers the legislative goal. We begin with the Countys argument that the goal of the same-sex marriage ban is to ensure children will be raised only in the optimal milieu. In pursuit of this objective, the statutory exclusion of gay and lesbian people is both under-inclusive and over-inclusive. The civil marriage statute is under-inclusive because it does not exclude from marriage other groups of parentssuch as child abusers, sexual predators, parents neglecting to provide child support, and violent felonsthat are undeniably less than optimal parents. Such under-inclusion tends to demonstrate that the sexual-orientation-based classification is grounded in prejudice or overbroad generalizations about the different talents, capacities, or preferences of gay and lesbian people, rather than having a substantial relationship to some important objective. See Virginia, 518 U.S. at 533, 116 S.Ct. at 2275, 135 L.Ed.2d at 751 (rejecting use of overbroad generalizations to classify). If the marriage statute was truly focused on optimal parenting, many classifications of people would be excluded, not merely gay and lesbian people.
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remedy there, neglecting the others. Williamson, 348 U.S. at 489, 75 S.Ct. at 465, 99 L.Ed. at 573. While a statute does not automatically violate equal protection merely by being under-inclusive, the degree of under-inclusion nonetheless indicates the substantiality of the relationship between the legislative means and end. As applied to this case, it could be argued the same-sex marriage ban is just one legislative step toward ensuring the optimal environment for raising children. Under this argument, the governmental objective is slightly more modest. It seeks to reduce the number of same-sex parent households, nudging our state a step closer to providing the asserted optimal milieu for children. Even evaluated in light of this narrower objective, however, the ban on same-sex marriage is flawed. The ban on same-sex marriage is substantially over-inclusive because not all same-sex couples choose to raise children. Yet, the marriage statute denies civil marriage to all gay and lesbian people in order to discourage the limited number of same-sex couples who desire to raise children. In doing so, the legislature includes a consequential number of individuals within the statutes purview who are not afflicted with the evil the statute seeks to remedy. Conaway, 932 A.2d at 649 (Raker, J., concurring in part and dissenting). At the same time, the exclusion of gay and lesbian people from marriage is under-inclusive, even in relation to the narrower *901 goal of improving child rearing by limiting same-sex parenting. Quite obviously, the statute does not prohibit same-sex couples from raising children. Same-sex couples currently raise children in Iowa, even while being excluded from civil marriage, and such couples will undoubtedly continue to do so. Recognition of this under-inclusion puts in perspective just how minimally the same-sex marriage ban actually advances the purported legislative goal. A law so simultaneously over-inclusive and under-inclusive is not substantially related to the governments objective. In the end, a careful analysis of the over- and under-inclusiveness of the statute reveals it is less about using marriage to achieve an optimal environment for children and more about merely precluding gay and lesbian people from civil marriage. If the statute was truly about the best interest of children, some benefit to children derived from the ban on same-sex civil marriages would be observable. Yet, the germane analysis does not show how the best interests of children of gay and lesbian parents, who are denied an environment supported by the benefits of marriage under the statute, are served by the ban. Likewise, the exclusion of gays and lesbians from marriage does not benefit the 27
Of course, [r]eform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind. Knepper v. Monticello State Bank, 450 N.W.2d 833, 837 (Iowa 1990) (citing Williamson v. Lee Optical of Okla., 348 U.S. 483, 489, 75 S.Ct. 461, 465, 99 L.Ed. 563, 573 (1955)). Thus, [t]he legislature may select one phase of one field and apply a
interests of those children of heterosexual parents, who are able to enjoy the environment supported by marriage with or without the inclusion of same-sex couples. The ban on same-sex civil marriage can only logically be justified as a means to ensure the asserted optimal environment for raising children if fewer children will be raised within same-sex relationships27 or more children will be raised in dual-gender marriages. Yet, the same-sex-marriage ban will accomplish these outcomes only when people in same-sex relationships choose not to raise children without the benefit of marriage or when children are adopted by dual-gender couples who would have been adopted by same-sex couples but for the same-sex civil marriage ban. We discern no substantial support for this proposition. These outcomes, at best, are minimally advanced by the classification. Consequently, a classification that limits civil marriage to opposite-sex couples is simply not substantially related to the objective of promoting the optimal environment to raise children. This conclusion suggests stereotype and prejudice, or some other unarticulated reason, could be present to explain the real objectives of the statute. c. Promotion of procreation. The County also proposes that government endorsement of traditional civil marriage will result in more procreation. It points out that procreation is important to the continuation of the human race, and opposite-sex couples accomplish this objective because procreation occurs naturally within this group. In contrast, the County points out, same-sex couples can procreate only through assisted reproductive techniques, and some same-sex couples may choose not to procreate. While heterosexual marriage does lead to procreation, the argument by the County fails to address the real issue in our required analysis of the objective: whether exclusion of gay and lesbian individuals from the institution of civil marriage will result in more procreation? If procreation is the true objective, *902 then the proffered classification must work to achieve that objective.
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marriage and increased procreation is far too tenuous to withstand heightened scrutiny. Specifically, the statute is significantly under-inclusive with respect to the objective of increasing procreation because it does not include a variety of groups that do not procreate for reasons such as age, physical disability, or choice. In other words, the classification is not substantially related to the asserted legislative purpose.
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d. Promoting stability in opposite-sex relationships. A fourth suggested rationale supporting the marriage statute is promoting stability in opposite sex relationships. While the institution of civil marriage likely encourages stability in opposite-sex relationships, we must evaluate whether excluding gay and lesbian people from civil marriage encourages stability in opposite-sex relationships. The County offers no reasons that it does, and we can find none. The stability of opposite-sex relationships is an important governmental interest, but the exclusion of same-sex couples from marriage is not substantially related to that objective.
Conceptually, the promotion of procreation as an objective of marriage is compatible with the inclusion of gays and lesbians within the definition of marriage. Gay and lesbian persons are capable of procreation. Thus, the sole conceivable avenue by which exclusion of gay and lesbian people from civil marriage could promote more procreation is if the unavailability of civil marriage for same-sex partners caused homosexual individuals to become heterosexual in order to procreate within the present traditional institution of civil marriage. The briefs, the record, our research, and common sense do not suggest such an outcome. Even if possibly true, the link between exclusion of gay and lesbian people from
e. Conservation of resources. The conservation of state resources is another objective arguably furthered by excluding gay and lesbian persons from civil marriage. The argument is based on a simple premise: couples who are married enjoy numerous governmental benefits, so the states fiscal burden associated with civil marriage is reduced if less people are allowed to marry. In the common sense of the word, then, it is rational for the legislature to seek to conserve state resources by limiting the number of couples allowed to form civil marriages. By way of example, the County hypothesizes that, due to our laws granting tax benefits to married couples, the State of Iowa would reap less tax revenue if individual taxpaying gay and lesbian people were allowed to obtain a civil marriage. Certainly, Iowas marriage statute causes numerous government benefits, including tax benefits, to be withheld from plaintiffs.28 Thus, the ban *903 on same-sex marriages may conserve some state resources. Excluding any group from civil marriageAfrican-Americans, illegitimates, aliens, even red-haired individualswould conserve state resources in an equally rational way. Yet, such classifications so obviously offend our societys collective sense of equality that courts have not hesitated to provide added protections against such inequalities.
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One primary requirement of the equal protection clause is a more substantial relationship between the legislative goal and the means used to attain the goal. When heightened scrutiny is applicable, the means must substantially further the legislative end. Consequently, in this case, the sexual-orientation-based classification must 28
substantially objective.
further
the
conservation-of-resources
As observed in our analysis of the other reasons offered in support of the marriage statute, significant degrees of over-inclusion and under-inclusion shed light on the true relationship between exclusion of gay and lesbian people from civil marriage and the goal of conserving governmental resources. Exclusion of all same-sex couples is an extremely blunt instrument for conserving state resources through limiting access to civil marriage. In other words, the exclusion of same-sex couples is over-inclusive because many same-sex couples, if allowed to marry, would not use more state resources than they currently consume as unmarried couples. To reference the Countys example, while many heterosexual couples who have obtained a civil marriage do not file joint tax returnsor experience any other tax benefit from marital statusmany same-sex couples may not file a joint tax return either. The two classes created by the statuteopposite-sex couples and same-sex couplesmay use the same amount of state resources. Thus, the two classes are similarly situated for the purpose of conserving state resources, yet the classes are treated differently by the law. In this way, sexual orientation is a flawed indicator of resource usage. Just as exclusion of same-sex couples from marriage is a blunt instrument, however, it is also significantly undersized if the true goal is to conserve state resources. That is to say, the classification is under-inclusive. The goal of conservation of state resources would be equally served by excluding any similar-sized group from civil marriage. Indeed, under the Countys logic, more state resources would be conserved by excluding groups more numerous than Iowas estimated 5800 same-sex couples (for example, persons marrying for a second or subsequent time). Importantly, there is also no suggestion same-sex couples would use more state resources if allowed to obtain a civil marriage than heterosexual couples who obtain a civil marriage. Such over-inclusion and under-inclusion demonstrates the trait of sexual orientation is a poor proxy for regulating aspiring spouses usage of state resources. This tenuous relationship between the classification and its purpose demonstrates many people who are similarly situated with respect to the purpose of the law are *904 treated differently. As a result, the sexual-orientation-based classification does not substantially further the suggested governmental interest, as required by intermediate scrutiny. 4. Conclusion. Having examined each proffered
governmental objective through the appropriate lens of intermediate scrutiny, we conclude the sexual-orientation-based classification under the marriage statute does not substantially further any of the objectives. While the objectives asserted may be important (and many undoubtedly are important), none are furthered in a substantial way by the exclusion of same-sex couples from civil marriage. Our equal protection clause requires more than has been offered to justify the continued existence of the same-sex marriage ban under the statute. I. Religious Opposition to SameSex Marriage. Now that we have addressed and rejected each specific interest advanced by the County to justify the classification drawn under the statute, we consider the reason for the exclusion of gay and lesbian couples from civil marriage left unspoken by the County: religious opposition to same-sex marriage. The Countys silence reflects, we believe, its understanding this reason cannot, under our Iowa Constitution, be used to justify a ban on same-sex marriage. While unexpressed, religious sentiment most likely motivates many, if not most, opponents of same-sex civil marriage and perhaps even shapes the views of those people who may accept gay and lesbian unions but find the notion of same-sex marriage unsettling.29 Consequently, we address the religious undercurrent propelling the same-sex marriage debate as a means to fully explain our rationale for rejecting the dual-gender requirement of the marriage statute. It is quite understandable that religiously motivated opposition to same-sex civil marriage shapes the basis for legal opposition to same-sex marriage, even if only indirectly. Religious objections to same-sex marriage are supported by thousands of years of tradition and biblical interpretation.30 The belief that the sanctity of marriage would be undermined by the inclusion of gay and lesbian couples bears a striking conceptual resemblance to the expressed secular rationale for maintaining the tradition of marriage as a union between dual-gender couples, but better identifies the source of the opposition. Whether expressly or impliedly, much of society rejects same-sex marriage due to sincere, deeply ingrainedeven fundamentalreligious belief. Yet, such views are not the only religious views of marriage. As demonstrated *905 by amicus groups, other equally sincere groups and people in Iowa and around the nation have strong religious views that yield the opposite conclusion.31 This contrast of opinions in our society largely explains 29
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the absence of any religion-based rationale to test the constitutionality of Iowas same-sex marriage ban. Our constitution does not permit any branch of government to resolve these types of religious debates and entrusts to courts the task of ensuring government avoids them. See Iowa Const. art. I, 3 (The general assembly shall make no law respecting an establishment of religion....). The statute at issue in this case does not prescribe a definition of marriage for religious institutions. Instead, the statute declares, Marriage is a civil contract and then regulates that civil contract. Iowa Code 595A.1. Thus, in pursuing our task in this case, we proceed as civil judges, far removed from the theological debate of religious clerics, and focus only on the concept of civil marriage and the state licensing system that identifies a limited class of persons entitled to secular rights and benefits associated with civil marriage.
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Home Bldg. & Loan Assn v. Blaisdell, 290 U.S. 398, 483, 54 S.Ct. 231, 256, 78 L.Ed. 413, 452 (1934) (Sutherland, J., dissenting). In the final analysis, we give respect to the views of all Iowans on the issue of same-sex marriagereligious or otherwiseby giving respect to our constitutional principles. These principles require *906 that the state recognize both opposite-sex and same-sex civil marriage. Religious doctrine and views contrary to this principle of law are unaffected, and people can continue to associate with the religion that best reflects their views. A religious denomination can still define marriage as a union between a man and a woman, and a marriage ceremony performed by a minister, priest, rabbi, or other person ordained or designated as a leader of the persons religious faith does not lose its meaning as a sacrament or other religious institution. The sanctity of all religious marriages celebrated in the future will have the same meaning as those celebrated in the past. The only difference is civil marriage will now take on a new meaning that reflects a more complete understanding of equal protection of the law. This result is what our constitution requires. J. Constitutional Infirmity. We are firmly convinced the exclusion of gay and lesbian people from the institution of civil marriage does not substantially further any important governmental objective. The legislature has excluded a historically disfavored class of persons from a supremely important civil institution without a constitutionally sufficient justification. There is no material fact, genuinely in dispute, that can affect this determination. We have a constitutional duty to ensure equal protection of the law. Faithfulness to that duty requires us to hold Iowas marriage statute, Iowa Code section 595.2, violates the Iowa Constitution. To decide otherwise would be an abdication of our constitutional duty. If gay and lesbian people must submit to different treatment without an exceedingly persuasive justification, they are deprived of the benefits of the principle of equal protection upon which the rule of law is founded. Iowa Code section 595.2 denies gay and lesbian people the equal protection of the law promised by the Iowa Constitution.32
We, of course, have a constitutional mandate to protect the free exercise of religion in Iowa, which includes the freedom of a religious organization to define marriages it solemnizes as unions between a man and a woman. See Iowa Const. art. I, 3 (The general assembly shall make no law ... prohibiting the free exercise [of religion]....). This mission to protect religious freedom is consistent with our task to prevent government from endorsing any religious view. State government can have no religious views, either directly or indirectly, expressed through its legislation. Knowlton v. Baumhover, 182 Iowa 691, 710, 166 N.W. 202, 208 (1918). This proposition is the essence of the separation of church and state. As a result, civil marriage must be judged under our constitutional standards of equal protection and not under religious doctrines or the religious views of individuals. This approach does not disrespect or denigrate the religious views of many Iowans who may strongly believe in marriage as a dual-gender union, but considers, as we must, only the constitutional rights of all people, as expressed by the promise of equal protection for all. We are not permitted to do less and would damage our constitution immeasurably by trying to do more. The only legitimate inquiry we can make is whether [the statute] is constitutional. If it is not, its virtues ... cannot save it; if it is, its faults cannot be invoked to accomplish its destruction. If the provisions of the Constitution be not upheld when they pinch as well as when they comfort, they may as well be abandoned.
V. Remedy. [53] Because our civil marriage statute fails to provide equal protection of the law under the Iowa Constitution, we must decide how to best remedy the constitutional violation. The sole remedy requested by plaintiffs is admission into the institution of civil marriage. The County does not suggest an alternative remedy. The high courts of other jurisdictions have remedied 30
constitutionally invalid bans on same-sex marriage in two ways. Some courts have ordered gay and lesbian people to be allowed to access the institution of civil marriage. See In re Marriage Cases, 183 P.3d at 453; Kerrigan, 957 A.2d at 480 (definition of marriage necessarily must be expanded to include same-sex couples); Opinions of the Justices to the Senate, 440 Mass. 1201, 802 N.E.2d 565, 571 (2004). Other courts have allowed their state legislatures to create parallel civil institutions for same-sex couples. See Lewis v. Harris, 188 N.J. 415, 908 A.2d 196, 221 (2006); Baker v. State, 170 Vt. 194, 744 A.2d 864, 887 (1999). Iowa Code section 595.2 is unconstitutional because the County has been unable to identify a constitutionally adequate justification for excluding plaintiffs from the institution of civil marriage. A new distinction based on sexual orientation would be equally suspect and difficult to square with the fundamental principles of equal protection embodied in our constitution. This record, our independent research, and the appropriate equal protection analysis *907 do not suggest the existence of a justification for such a legislative classification that substantially furthers any governmental objective. Footnotes
1
Consequently, the language in Iowa Code section 595.2 limiting civil marriage to a man and a woman must be stricken from the statute, and the remaining statutory language must be interpreted and applied in a manner allowing gay and lesbian people full access to the institution of civil marriage.
VI. Conclusion. The district court properly granted summary judgment to plaintiffs. Iowa Code section 595.2 violates the equal protection provision of the Iowa Constitution. Our decision becomes effective upon issuance of procedendo.33 AFFIRMED.
All justices concur.
The state motto of Iowa is: Our liberties we prize and our rights we will maintain. It is inscribed on the Great Seal of Iowa and on our state flag. See Iowa Code 1A.1, 1B.1 (2009). Iowa Code section 595.2(1) provides [o]nly a marriage between a male and a female is valid. All statutory references are to the 2009 Code of Iowa. While some statutes referenced here have been amended since this lawsuit originated, none of the amendments dictate the outcome of this case. This statement is the official policy of the American Psychological Association regarding sexual orientation, parents, and children. See Am. Psychological Assn Council of Representatives, Am. Psychological Assn, Resolution on Sexual Orientation, Parents, and Children (2004), in Ruth Ullmann Paige, Proceedings of the American Psychological Association for the Legislative Year 2004: Minutes of the Annual Meeting of the Council of Representatives July 28 & 30, 2004, Honolulu, HI, 60 Am. Psychologist 436511 (JulyAugust 2005), available at http://www.apa. org/pi/lgbc/policy/parents.html (reporting adoption of resolution). The cases we have cited are not meant to imply this court has been at the forefront in recognizing civil rights in all areas and at all times. See, e.g., In re Carragher, 149 Iowa 225, 22930, 128 N.W. 352, 354 (1910) (upholding a law that effectively denied women pharmacists the right to sell alcohol, stating discrimination between the sexes is neither arbitrary nor capricious, and the fact that in many instances individuals of one sex are in general better fitted than those of the other sex for a given occupation or business is one of such common knowledge and observation that the Legislature may properly recognize it in enacting regulations therefor). These cases do, however, reflect this court has, for the most part, been at the forefront in recognizing individuals civil rights. The path we have taken as a state has not been by accident, but has been navigated with the compass of equality firmly in hand, constructed with a pointer balanced carefully on the pivot of equal protection. One commentator has found that, since the same-sex-marriage debate started, twenty-seven states have passed constitutional amendments prohibiting same-sex marriage, and seventeen of those state amendments also ban other official forms of same-sex relationships, such as civil unions. Ben Schuman, Note, Gods & Gays: Analyzing the SameSex Marriage Debate from a Religious Perspective, 96 Geo. L.J. 2103, 210608 (2008). Only one state has recognized same-sex marriage, while several other states recognize civil unions or another form of same-sex relationship. Id. Elizabeth F. Emens, Intimate Discrimination: The States Role in the Accidents of Sex and Love, 122 Harv. L. Rev. 1307, 1315 & n.18 (2009) (noting only Massachusetts and Connecticut allow same-sex marriage, while the legality of same-sex marriage in California is currently in flux).
31
Plaintiffs challenge to Iowa Code section 595.2 is based on the equal protection guarantee in the Iowa Constitution and does not implicate federal constitutional protections. Generally, we view the federal and state equal protection clauses as identical in scope, import, and purpose. Callender, 591 N.W.2d at 187. At the same time, we have jealously guarded our right to employ a different analytical framework under the state equal protection clause as well as to independently apply the federally formulated principles. Racing Assn of Cent. Iowa v. Fitzgerald, 675 N.W.2d 1, 47 (Iowa 2004). Here again, we find federal precedent instructive in interpreting the Iowa Constitution, but we refuse to follow it blindly. The United States Supreme Court has not resolved the broad question of whether an absolute ban of marriages between persons of the same sex violates the Federal Equal Protection Clause. See Lawrence, 539 U.S. at 578, 123 S.Ct. at 2484, 156 L.Ed.2d at 525 (noting that case does not decide whether the government must give formal recognition to any relationship that homosexual persons seek to enter). Nor has the Court resolved many of the narrower legal questions presented by this lawsuit. Nonetheless, the federal framework traditionally employed for resolution of equal protection cases provides a useful starting point for evaluation of Iowas constitutional equal protection provision. Under a traditional rational basis review, courts are required to accept generalized reasons to support the legislation, even if the fit between the means and end is far from perfect. See McGowan v. Maryland, 366 U.S. 420, 42526, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393, 399 (1961) ( [L]egislatures are presumed to have acted within their constitutional powers despite the fact that, in practice, their laws result in some inequality. (Citations omitted.)). Moreover, the challengers bear the burden of negating every conceivable rational basis that might support the classification drawn in the statute. FCC v. Beach Commcns, Inc., 508 U.S. 307, 315, 113 S.Ct. 2096, 2102, 124 L.Ed.2d 211, 221 (1993). Some legal commentators have suggested that the occasional practice of courts to examine the purpose of the law more closely under the rational basis test has actually created an additional category of equal protection analysis called rational basis with bite. See Gayle Lynn Pettinga, Rational Basis with Bite: Intermediate Scrutiny By Any Other Name, 62 Ind. L.J. 779, 780 (1987) ([R]ational basis with bite is simply intermediate scrutiny without an articulation of the factors that triggered it....); Jeremy B. Smith, Note, The Flaws of Rational Basis with Bite: Why the Supreme Court Should Acknowledge Its Application of Heightened Scrutiny to Classifications Based on Sexual Orientation, 73 Fordham L.Rev. 2769, 2774 (2005); Steven P. Wieland, Note, Gambling, Greyhounds, and Gay Marriage: How the Supreme Court Can Use the RationalBasis Test to Address Varnum v. Brien, 94 Iowa L.Rev. 413, 43842 (2008) (suggesting the Iowa Supreme Court apply rational basis with bite). References to heightened scrutiny in this opinion are meant to be general; heightened scrutiny includes any judicial inquiry more searching than the rational basis test. References to intermediate scrutiny discuss a specific level of scrutiny between the rational basis test and strict scrutiny. While we have applied the threshold analysis in previous cases, we have, at times, directly or indirectly infused that analysis with principles traditionally applied in the complete equal protection analysis. See, e.g., Hennings, 744 N.W.2d at 33839 (disposing of an equal protection claim with a threshold similarly situated analysis, but within that threshold analysis evaluating the relationship of the states interest and the classification made by the statute); see also Timberland Partners XXI, LLP, 757 N.W.2d at 17677 (implicitly considering relationship between classifications and taxing interests of the state by focusing on distinctions in the use of commercial and residential property); Grovijohn, 643 N.W.2d at 204 (using threshold test to find the notice provisions of the dramshop statute treat all dramshop plaintiffs the same, but determining plaintiff failed to articulate how the adoption of the comparative fault statute altered prior case law finding the notice requirement did not violate equal protection). This approach is almost inevitable for the test to have any real value as an analytical tool to resolve equal protection claims. Consequently, we question the usefulness of the threshold test and express caution in the future use of the threshold analysis. See, e.g., Angie Baker, Note, Leapfrogging Over Equal Protection Analysis: The Eighth Circuit Sanctions Separate and Unequal Prison Facilities for Males and Females in Klinger v. Department of Corrections, 76 Neb. L.Rev. 371, 385 (1999) (noting United States Supreme Court has not applied similarly situated analysis as a threshold test); Donna Laddy, Can Women Prisoners Be Carpenters? A Proposed Analysis for Equal Protection Claims of Gender Discrimination in Educational and Vocational Programming at Womens Prisons, 5 Temple Pol. & Civ. Rts. L.Rev. 1, 2223 (1995) (same). Because the plaintiffs here satisfy the threshold test we have followed in the past, the outcome in this case would not be affected by abandoning that test now. Therefore, we leave to future parties the task of arguing the applicability of the threshold similarly situated analysis in future cases. In the past, when a dispute has required this court to choose which level of scrutiny to apply to a given classification, the United States Supreme Court has already determined the appropriate level of scrutiny under the Federal Equal Protection Clause. See, e.g., In re Det. of Williams, 628 N.W.2d 447, 45253 (Iowa 2001) (relying on Supreme Courts decision that the mentally ill do not comprise a suspect class); Bennett v. City of Redfield, 446 N.W.2d 467, 473 (Iowa 1989) (deferring to Supreme Court precedent to determine employees of city governments do not comprise a suspect class). We have routinely followed the Supreme Courts lead, and as a result we have not previously developed an independent analysis under the Iowa Constitution. See, e.g., Williams, 628 N.W.2d at 45253 (noting Supreme Court holding and containing no independent analysis); Gilleland v. Armstrong Rubber Co., 524 N.W.2d 404, 407 (Iowa 1994) (stating strict scrutiny analysis only required in few cases involving suspect classes and fundamental rights as defined by Supreme Court); Bennett, 446 N.W.2d at 473 (noting Supreme Court holding and containing no independent analysis); Stracke v. City of Council Bluffs, 341 N.W.2d 731, 734 (Iowa 1983) (Because no fundamental right or suspect class, as defined by the United States Supreme Court, is involved in this case, our task is to determine whether a rational
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basis existed....). While we again note our authority to develop independent analyses under the Iowa Constitution, we nonetheless view the Supreme Courts general framework for determining the constitutional suspectness of a class as a useful analytical starting point.
11
Justice Brennans opinion for the Supreme Court in Plyler suggests the significance of each of the four factors. Although Plyler does not formulate a specific test, nor even discuss factors per se, the case touches upon each of the four traditional factors: Several formulations might explain our treatment of certain classifications as suspect. Some classifications are more likely than others to reflect deep-seated prejudice rather than legislative rationality in pursuit of some legitimate objective. Legislation predicated on such prejudice is easily recognized as incompatible with the constitutional understanding that each person is to be judged individually and is entitled to equal justice under the law. Classifications treated as suspect tend to be irrelevant to any proper legislative goal. Finally, certain groups, indeed largely the same groups, have historically been relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process. The experience of our Nation has shown that prejudice may manifest itself in the treatment of some groups. Our response to that experience is reflected in the Equal Protection Clause of the Fourteenth Amendment. Legislation imposing special disabilities upon groups disfavored by virtue of circumstances beyond their control suggests the kind of class or caste treatment that the Fourteenth Amendment was designed to abolish. Plyler, 457 U.S. at 217 n. 14, 102 S.Ct. at 2395 n. 14, 72 L.Ed.2d at 799 n. 14 (citations omitted); see also Kerrigan, 957 A.2d at 426 (identifying two required factors and two additional considerations); Dean v. District of Columbia, 653 A.2d 307, 33940 (D.C.1995) (Ferren, J., dissenting) (identifying four factors and explaining the Supreme Court has not applied all four factors in every case). See Virginia, 518 U.S. at 53132, 116 S.Ct. at 227475, 135 L.Ed.2d at 750 (observing long and unfortunate history of sex discrimination (quoting Frontiero v. Richardson, 411 U.S. 677, 684, 93 S.Ct. 1764, 1769, 36 L.Ed.2d 583, 590 (1973) (Brennan, J., plurality opinion))); Lyng v. Castillo, 477 U.S. 635, 638, 106 S.Ct. 2727, 2729, 91 L.Ed.2d 527, 533 (1986) (noting subject class had not been subjected to discrimination); Cleburne Living Ctr., 473 U.S. at 443, 105 S.Ct. at 3256, 87 L.Ed.2d at 332 (mentally retarded not victims of continuing antipathy or prejudice); Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 313, 96 S.Ct. 2562, 2567, 49 L.Ed.2d 520, 525 (1976) (considering history of purposeful unequal treatment (quoting San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 28, 93 S.Ct. 1278, 1294, 36 L.Ed.2d 16, 40 (1973))). See Cleburne Living Ctr., 473 U.S. at 440, 105 S.Ct. at 3254, 87 L.Ed.2d at 320 (certain classifications merely reflect prejudice and antipathy); Miss. Univ. for Women v. Hogan, 458 U.S. 718, 725, 102 S.Ct. 3331, 3336, 73 L.Ed.2d 1090, 1098 (1982) (Care must be taken in ascertaining whether the statutory objective itself reflects archaic and stereotypic notions.); Murgia, 427 U.S. at 313, 96 S.Ct. at 2566, 49 L.Ed.2d at 525 (considering whether aged have been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities); Frontiero, 411 U.S. at 686, 93 S.Ct. at 1770, 36 L.Ed.2d at 591 (Brennan, J., plurality opinion) ([T]he sex characteristic frequently bears no relation to ability to perform or contribute to society.). Lyng, 477 U.S. at 638, 106 S.Ct. at 2729, 91 L.Ed.2d at 533 (close relatives do not exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group); Cleburne Living Ctr., 473 U.S. at 442, 105 S.Ct. at 325556, 87 L.Ed.2d at 322 (mentally retarded people are different from other classes of people, immutably so, in relevant respects); Plyler, 457 U.S. at 220, 102 S.Ct. at 2396, 72 L.Ed.2d at 801 (children of illegal aliens, unlike their parents, have legal characteristic[s] over which children can have little control); Mathews v. Lucas, 427 U.S. 495, 505, 96 S.Ct. 2755, 2762, 49 L.Ed.2d 651, 660 (1976) (status of illegitimacy is, like race or national origin, a characteristic determined by causes not within the control of the illegitimate individual); Frontiero, 411 U.S. at 686, 93 S.Ct. at 1770, 36 L.Ed.2d at 591 (Brennan, J., plurality opinion) ([S]ex, like race and national origin, is an immutable characteristic determined solely by the accident of birth....). Lyng, 477 U.S. at 638, 106 S.Ct. at 2729, 91 L.Ed.2d at 533 (close relatives of primary household are not a minority or politically powerless); Cleburne Living Ctr., 473 U.S. at 445, 105 S.Ct. at 3257, 87 L.Ed.2d at 324 (refusing to find that the mentally retarded are politically powerless); San Antonio Indep. Sch. Dist., 411 U.S. at 28, 93 S.Ct. at 1294, 36 L.Ed.2d at 40 (considering whether minority and poor school children were relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process). The Supreme Court has not required, nor even discussed, every factor in every case. See, e.g., Palmore v. Sidoti, 466 U.S. 429, 43334, 104 S.Ct. 1879, 188283, 80 L.Ed.2d 421, 426 (1984) (foregoing analysis of political power); Nyquist v. Mauclet, 432 U.S. 1, 9 n. 11, 97 S.Ct. 2120, 2125 n. 11, 53 L.Ed.2d 63, 71 n. 11 (1977) (jettisoning immutability requirement and scrutinizing classification of resident aliens closely despite aliens voluntary status as residents); Mathews, 427 U.S. at 50506, 96 S.Ct. at 276263, 49 L.Ed.2d at 66061 (according heightened scrutiny to classifications based on illegitimacy despite mutability and political power of illegitimates); Murgia, 427 U.S. at 31314, 96 S.Ct. at 2567, 49 L.Ed.2d at 525 (omitting any reference to immutability); San Antonio Indep. Sch. Dist., 411 U.S. at 25, 93 S.Ct. at 1292, 36 L.Ed.2d at 38 (omitting any reference to immutability); Frontiero, 411 U.S. at 68588, 93 S.Ct. at 177071, 36 L.Ed.2d at 59192 (Brennan, J., plurality opinion) (scrutinizing classification based on gender closely despite political power of women); Graham v. Richardson, 403 U.S. 365,
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37172, 91 S.Ct. 1848, 1852, 29 L.Ed.2d 534, 54142 (1971) (foregoing analysis of immutability); see also Lyng, 477 U.S. at 638, 106 S.Ct. at 2729, 91 L.Ed.2d at 533 (referring to whether members of the class exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group (emphasis added)); Dean, 653 A.2d at 346 (Ferren, J., dissenting) (observing Supreme Court has never held that only classes with immutable traits can be deemed suspect (quoting Watkins v. U.S. Army, 875 F.2d 699, 725 (9th Cir.1989) (Norris, J., concurring))). Some courts view the Supreme Courts precedent as according greater weight to the first two factors, see, e.g., Kerrigan, 957 A.2d at 426 (It bears emphasis, however, that the United States Supreme Court has placed far greater weightindeed, it invariably has placed dispositive weighton the first two factors, that is, whether the group has been the subject of long-standing and invidious discrimination and whether the groups distinguishing characteristic bears no relation to the ability of the group members to perform or function in society.), or as suggesting the factors are alternative means to heightening scrutiny of a legislative classification, id. at 440 (noting a suspect class is one saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process (quoting Murgia, 427 U.S. at 313, 96 S.Ct. at 2567, 49 L.Ed.2d at 525) (emphasis added)). But see Conaway, 932 A.2d at 60914 (holding sexual-orientation-based legislation is not entitled to heightened scrutiny because gay and lesbian people are not politically powerless, even though other factors are satisfied); Andersen, 138 P.3d at 974 (determining plaintiffs failed to show homosexuality is an immutable trait and consequently holding sexual-orientation-based distinctions do not demand closer judicial scrutiny).
17
Additional legal authority abounds demonstrating the history of discrimination. See, e.g., In re Marriage Cases, 183 P.3d at 442 (finding sexual orientation is a characteristic ... that is associated with a stigma of inferiority and second-class citizenship, manifested by the groups history of legal and social disabilities); Kerrigan, 957 A.2d at 43233 (concluding gay and lesbian people have been subjected to and stigmatized by a long history of purposeful and invidious discrimination, and recounting numerous legal and scientific authorities); Dean, 653 A.2d at 34445 (Discrimination against homosexuals has been pervasive in both the public and the private sectors.); Conaway, 932 A.2d at 609 (Homosexual persons have been the object of societal prejudice by private actors as well as by the judicial and legislative branches of federal and state governments.). The County references plaintiffs inability to procreate naturally, presumably pointing out each couples inability to procreate without assistance. Plaintiffs inability to contribute children to society by procreation through sexual intercourse with each other does not dictate the outcome of our consideration under this factor. The inquiry into gay and lesbian peoples ability to contribute to society is a general one, designed to signal whether such classifications routinely risk elevating stereotype over ability. A persons ability to procreate is merely one of many ways in which the person can contribute to society. While the narrower consideration of plaintiffs procreative abilities may be relevant to whether section 595.2 ultimately passes judicial scrutiny, consideration of those abilities is less helpful in determining which level of scrutiny to apply. That is, the inability of gay and lesbian partners to contribute by procreation through sexual intercourse with each other does not indicate whether legislative classifications based on sexual preferencewhich can conceivably occur in any legislative subject matter areawill generally be based on stereotyped characteristics not truly indicative of their abilities. Murgia, 427 U.S. at 313, 96 S.Ct. at 2566, 49 L.Ed.2d at 525. The legislature has further indicated the irrelevancy of sexual orientation by mandating sex education in the states public schools be free of biases relating to sexual orientation, Iowa Code 279.50, and by securing personal freedom from violence and intimidation due to sexual orientation, id. 729A.1. Likewise, numerous state administrative regulations indicate sexual orientation is not relevant to a persons ability to contribute to society. See Iowa Admin. Code r. 19148.9 (prohibiting discrimination in making or solicitation of viatical settlement contracts on basis of sexual orientation); id. r. 28112 (preamble) (ensuring access to education meeting childs needs and abilities regardless of sexual orientation); id. r. 28112.1 (ordering equal opportunity in educational programs regardless of sexual orientation); id. r. 28112.3 (ordering school boards to consider the potential disparate impact of student responsibility and discipline policies on students because of students sexual orientation); id. r. 28168.4 (prohibiting discrimination in admission process to public charter schools based on sexual orientation); id. r. 28225.3 (labeling denial of participation in benefits of educational program based on sexual orientation an unethical practice); id. r. 28226.3 (prohibiting licensed educators from discriminating based on sexual orientation); id. r. 641131.7 (allowing public health department to take numerous adverse actions against emergency medical care personnel who practice, condone, or facilitate discrimination against a patient on the basis of sexual orientation); id. r. 641131.8 (allowing public health department to take numerous adverse actions against training program or continuing education providers who practice, condone, or facilitate discrimination against a patient on the basis of sexual orientation); id. r. 641132.10 (allowing denial, probation, revocation, and suspension of authorized emergency medical service programs that discriminate on the basis of sexual orientation); id. r. 645282.2 (prohibiting licensed social workers from discriminating on the basis of sexual orientation); id. r. 645363.2 (providing that sexual-orientation-based discrimination by sign language interpreters or transliterators is unethical); id. r. 6573.28 (providing that sexual-orientation-based discrimination by pharmacy technicians is unethical); id. r. 6578.11 (same for licensed pharmacies, licensed pharmacists, and registered pharmacist-interns); id. r. 66181.2 (prohibiting entrance of information regarding sexual orientation into Iowa law enforcement intelligence network information system in most circumstances).
18
19
34
20
Other federal and state authority supports such a conclusion. See Kerrigan, 957 A.2d at 435 (relying on Connecticut statutes banning discrimination based on sexual orientation in every important economic and social institution and activity that the government regulates); cf. Frontiero, 411 U.S. at 687, 93 S.Ct. at 1771, 36 L.Ed.2d at 592 (Brennan, J., plurality opinion) (interpreting congressional protections against gender discrimination as suggesting legislative determination such classifications are inherently invidious and implying significance of conclusion of coequal branch of Government in deciding whether to apply heightened scrutiny). By one measureoccupation of public officethe political power of racial minorities is unbounded in this country today. This fact was on display January 20, 2009, when Barack H. Obama, the AfricanAmerican son of a native Kenyan, was inaugurated as the forty-fourth President of the United States of America. See Misha Isaak, Comment, Whats in a Name?: Civil Unions & the Constitutional Significance of Marriage, 10 U. Pa. J. Const. L. 607, 608 & n. 7 (2008) [hereinafter Isaak] (noting limited success in obtaining legal status for same-sex marriage, including passage of same-sex civil unions in only two states and same-sex civil marriage in only one); Justin Reinheimer, What Lawrence Should Have Said: Reconstructing an Equality Approach, 96 Cal. L.Rev. 505, 51617 & n. 46 (2008) (reviewing status of state laws relating to legal recognition of same-sex relationships and noting only the California legislature has (twice) passed a law allowing same-sex civil marriage (which was twice vetoed by that states governor)). Plaintiffs and some amici urge us to abandon the traditional tiered analysis. This view is supported by commentators, at least one of which points out no new suspect or quasi-suspect class has been identified since the 1970s and argues the notion of suspect classes is a dead letter in federal constitutional law. See Evan Gerstman, Same Sex Marriage & the Constitution 6163 (2004). The rigidified tiered approach has long had its detractors, see, e.g., San Antonio Indep. Sch. Dist., 411 U.S. at 98, 93 S.Ct. at 1330, 36 L.Ed.2d at 81 (Marshall, J., dissenting), and other states have exercised corresponding sovereign authority to adopt balancing tests in equal protection cases, see, e.g., State v. Ostrosky, 667 P.2d 1184, 119293 (Alaska 1983); Greenberg v. Kimmelman, 99 N.J. 552, 494 A.2d 294, 302 (1985); Baker v. State, 170 Vt. 194, 744 A.2d 864, 878 (1999). Although a more flexible analysis is arguably more reflective of Iowas constitutional equality mandates and related jurisprudence, we recognize it is sometimes prudent to delay consideration of a new analysis to subsequent cases when the change can be more fully explored. See RACI II, 675 N.W.2d at 6 ([I]t is prudent to delay any consideration of whether a different analysis is appropriate to a case in which this issue was thoroughly briefed and explored. (citing In re Det. of Garren, 620 N.W.2d 275, 280 n. 1 (Iowa 2000))). And while plaintiffs have urged us to adopt a balancing standard, the parties application of equal protection principles to the facts of this case has focused on the tiered approach. We also conclude we are able to adequately fulfill our constitutional obligation as the highest court of this sovereign state to determine whether the challenged classification violates Iowas constitutional equality provision by using the traditional approach in this case. Id. at 4. While we once again reaffirm our sovereign authority to employ a different analytical framework under state constitutional provisions, RACI II, 675 N.W.2d at 5, we decline to adopt a new approach in this case. Other jurisdictions considering the validity of legislative exclusion of gay and lesbian people from civil marriage have considered alternative justifications. See, e.g., Kerrigan, 957 A.2d at 476 (uniformity with laws of other jurisdictions); id. at 518 (Zarella, J., dissenting) (regulation of heterosexual procreation); Hernandez v. Robles, 7 N.Y.3d 338, 821 N.Y.S.2d 770, 855 N.E.2d 1, 3234 (2006) (Kaye, C.J., dissenting) (moral disapproval, uniformity with other jurisdictions); Andersen, 138 P.3d at 982 (avoid the need to resolve the sometimes conflicting rights and obligations of the same-sex couple and the necessary third party in relation to a child). We need not independently analyze these alternative justifications as they are not offered to support the Iowa statute. See Virginia, 518 U.S. at 533, 116 S.Ct. at 2275, 135 L.Ed.2d at 751 (The justification must be genuine, not hypothesized or invented post hoc in response to litigation.). The preservation of traditional marriage could only be a legitimate reason for the classification if expanding marriage to include others in its definition would undermine the traditional institution. The County has simply failed to explain how the traditional institution of civil marriage would suffer if same-sex civil marriage were allowed. There is no legitimate notion that a more inclusive definition of marriage will transform civil marriage into something less than it presently is for heterosexuals. Benjamin G. Ledsham, Note, Means to Legitimate Ends: SameSex Marriage through the Lens of IllegitimacyBased Discrimination, 28 Cardozo L.Rev. 2373, 2388 (2007). The research appears to strongly support the conclusion that same-sex couples foster the same wholesome environment as opposite-sex couples and suggests that the traditional notion that children need a mother and a father to be raised into healthy, well-adjusted adults is based more on stereotype than anything else. In any event, we do not address whether there is a rational basis for the marriage statute, as the sexual-orientation classification made by the statute is subject to a heightened standard of scrutiny. The County does not specifically contend the goal of Iowas marriage statute is to deter gay and lesbian couples from having children. Such a claim would raise serious due process concerns. See Eisenstadt v. Baird, 405 U.S. 438, 453, 92 S.Ct. 1029, 1038, 31 L.Ed.2d 349, 362 (1972) (noting due process concern with governmental interference with decision to conceive children).
21
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23
24
25
26
27
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28
Plaintiffs identify over two hundred Iowa statutes affected by civil-marriage status. See, e.g., Iowa Code 85.31 (dependent surviving spouse receives benefits when spouse death caused by work injury); id. 135J.1(4) (hospice patients family includes spouse); id. 142C.4 (spouse has power to make decision concerning anatomical gifts); id. 144A.7 (patients spouse determines application of life-sustaining procedures in absence of declaration); id. 144C.5 (surviving spouse controls disposition of decedents remains in absence of declaration); id. 252A.3(1) (spouse liable for support of other spouse); id. 252A.3(4) (children of married parents legitimate); id. 422.7 (spouses may file joint tax return); id. 422.9(1) (optional standard deduction for married taxpayers); id. 422.12(1)(b) (spouses eligible for personal exemption credit); id. 450.3 (inheritance rights of surviving spouses); id. 450.9 (surviving spouse exempt from inheritance tax on property passed from decedent spouse); id. 450.10(6) (spousal allowance for surviving spouse); id. 523I.309 (surviving spouse must consent to decedent spouses interment); id. 613.15 (spouse may recover value of services and support of decedent spouse for wrongful death or negligent injury); id. 622.9 (restriction of testimony of communication between husband and wife); id. 633.211(1) (surviving spouse receives decedent spouses entire estate in intestacy); id. 633.236 (surviving spouse has right to elective share); id. 633.272 (surviving spouse takes under partial intestacy if elective share not exercised); id. 633.336 (damages for wrongful death). The Government Accounting Office, as of 2005, had identified more than 1000 federal legal rights and responsibilities derived from marriage. Isaak, 10 U. Pa. J. Const. L. at 607 n. 6. A survey in the Des Moines Register in 2008 found 28.1% of individuals surveyed supported same-sex marriage, 30.2% opposed same-sex marriage but supported civil unions, and 32% of respondents opposed both same-sex marriage and civil unions. Erin Jordan, About 6 in 10 Iowans back same-sex unions, poll finds, Des Moines Register, Nov. 26, 2008, at 4B. The Des Moines Register survey is consistent with a national survey by the PEW Research Center in 2003. This PEW survey found that 59% of Americans oppose same-sex marriage, and 32% favor same-sex marriage. Schuman, 96 Geo. L.J. at 2108. However, opposition to same-sex marriage jumped to 80% for people with a high level of religious commitment, with only 12% of such people in favor of same-sex marriage. Id. Schuman, 96 Geo. L.J. at 210912 (discussing the religious arguments against same-sex marriage found in both the Old and New Testaments of the Bible, supporting a conclusion that homosexuality is considered to be a sin and same-sex marriage to be an extension of that sin). Many religions recognize same-sex marriage, such as Buddhists, Quakers, Unitarians, and Reform and Reconstructionist Jews. Schuman, 96 Geo. L.J. at 2108. Amicus curiae Iowa and National Faith Leaders, Communities, and Scholars point out the United Church of Christ encourages, but does not require, its local congregations to adopt wedding policies that do not discriminate between heterosexual, gay, and lesbian couples, while the Episcopal Church permits priests to perform liturgies and blessings at same-sex weddings as a matter of pastoral care. Additionally, many groups and clergy within various religions are working to achieve inclusion of same-sex marriage. Id. at 210809. Our decision that the statute violates the equal protection clause of the Iowa Constitution makes it unnecessary to address the other bases for plaintiffs challenge to Iowas marriage statute. See Iowa R.App. P. 6.1208 (stating procedendo shall issue twenty-one days after the opinion is filed unless a petition for rehearing is filed).
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End of Document
36
Dean v. District of Columbia, 653 A.2d 307 (1995) 63 USLW 2449
653 A.2d 307 District of Columbia Court of Appeals. Craig Robert DEAN and Patrick Gerard Gill, Appellants, v. DISTRICT OF COLUMBIA, et al., Appellees. No. 92-CV-737. | Argued Nov. 2, 1993. | Decided Jan. 19, 1995. Two homosexual men appealed from an order of the Superior Court of the District of Columbia, Shellie F. Bowers, J., rejecting their complaint for an injunction to require that clerk of the Superior Court issue them a marriage license. The Court of Appeals held that: (1) District of Columbia marriage statute prohibited clerk from issuing marriage licenses to same-sex couples; (2) clerk did not unlawfully discriminate against plaintiffs under District of Columbia Human Rights Act by refusing to issue them marriage license; and (3) same-sex marriage was not fundamental right protected by due process clause. Affirmed. Ferren, J., filed opinion concurring in part and dissenting in part in which Terry and Steadman, JJ., joined in part. Terry and Steadman, JJ., filed separate concurring opinions.
[4]
Persons Who May Marry Marriage Consanguinity or affinity Consanguinity provision of marriage statute was not limited to prohibitions against biological inbreeding; provision reflected taboos and moral judgments about improper marriage relationships that transcended genetic concerns, and use of gender-based terminology to prohibit certain marriages reflected legislative understanding that marriage at time of original enactment of provision was inherently male-female relationship. D.C.Code 1981, 30-101.
[3]
Marriage Same-Sex and Other Non-Traditional Unions Adoption of gender rule of construction did not require interpretation of marriage statute to authorize same-sex marriages. D.C.Code 1981, 30-101 to 30-121, 49-203. 2 Cases that cite this headnote
West Headnotes (5)

[1]
Civil Rights Sexual orientation or identity Civil Rights Permits, licenses, and certifications Refusal by marriage license bureau to issue marriage licenses to same-sex couples did not violate the District of Columbia Human Rights Act. D.C.Code 1981, 1-2501 to 1-2557. 13 Cases that cite this headnote
Marriage Same-Sex and Other Non-Traditional Unions Under District of Columbia marriage statute, definition of marriage does not include same-sex unions. D.C.Code 1981, 30-101 to 30-121. 3 Cases that cite this headnote
[5]
[2]
Marriage
Constitutional Law Same-sex marriage Marriage Same-Sex and Other Non-Traditional Unions
Same-sex marriage is not a fundamental right protected by due process clause, as that kind of relationship is not deeply rooted in this nations history and tradition. U.S.C.A. Const.Amend. 5. 23 Cases that cite this headnote
Arthur B. Spitzer, W. Stephen Smith, and Micki M. Chen, Washington, DC, filed an amicus curiae brief for the American Civil Liberties Union of the Nat. Capital Area, on behalf of appellants. Evan Wolfson and A. Christopher Wieber, New York City, filed an amicus curiae brief for Lambda Legal Defense and Educ. Fund, Inc., on behalf of appellants. *308 Before FERREN, TERRY, and STEADMAN, Associate Judges.
Attorneys and Law Firms Opinion *307 William N. Eskridge, Jr., Georgetown University Law Center, with whom Craig Robert Dean, Washington, DC, was on the brief, for appellants. James C. McKay, Jr., Asst. Corp. Counsel, with whom John Payton, Corp. Counsel at the time the brief was filed, and Charles L. Reischel, Deputy Corp. Counsel, Washington, DC, were on the brief, for appellee. Laura A. Foggan, with whom Richard A. Gross, Washington, DC, was on the brief, for amicae curiae Elizabeth A. Leader and Barbara R. Lewis. PER CURIAM: The judgment of the trial court is affirmed pursuant to Parts I., II., III., and V. of Judge FERRENS opinion and the concurring opinions of Judges TERRY and STEADMAN.
TABLE OF CONTENTS FOR OPINION OF JUDGE FERREN
Page
INTRODUCTION
309
I. PROCEEDINGS TO DATE
309
II. THE MARRIAGE STATUTE CLAIM
310
A.
Legislative History of the Marriage Statute
310
B.
Statutory Definition of Marriage
312
C.
The Marriage Statute as Part of a Larger Legislative Scheme, Including the Divorce Statute
314
D.
The Traditional Understanding of Marriage
315
E.
Case Law from Other Jurisdictions
315
F.
The Anti-Sex Discriminatory Language Act of 1976
316
G.
The 1982 Gender Rule of Construction
317
THE HUMAN RIGHTS ACT CLAIM III. 318
IV. THE CONSTITUTIOnal Issues: PROCEDURAL AND ANALYTICAL PREREQUISITES
320
A.
Whether Constitutional Issues Have Been Properly Raised
320
B.
Standard of Review
321
C.
Relevance of the Distinction Between Adjudicative Facts and Legislative Facts

322
1.
In General
322
2.
Adjudicative and Legislative Facts Distinguished
323
3.
Judicial Process of Legislative Fact-Finding
326
V. CONSTITUTIONAL DUE PROCESS: IS SAME-SEX MARRIAGE A FUNDAMENTAL RIGHT?
331
A.
Definition of Fundamental Right
331
B.
Appellants Due Process Claim
332
EQUAL PROTECTION: ARE HOMOSEXUALS A SUSPECT OR VI. QUASI-SUSPECT CLASS?
333
A.
The Trial Courts Ruling
333
B.
Introduction: Discrimination and Equal Protection of the Laws
334
C.
The Attributes of Marriage Justifying an Equal Protection Inquiry
335
D.
Summary Judgment for Appellants Inappropriate Assuming, for the Sake of Argument, That the Rational Basis Test Applies
336
E.
Summary Judgment for the District Inappropriate Assuming, for the Sake of Argument, that Strict Scrutiny Applies
337
F.
Constitutionally Protected Classes: United States v. Carolene Products Co.
337
G.
Equal Protection After Carolene Products Co.: Suspect and Quasi-Suspect Classes
338
H.
The Implications, If Any, of Bowers v. Hardwick for Equal Protection Analysis
340
I.
The Factors Applicable to Determining Suspect and Quasi-Suspect Class Status
344
1.
History of Purposeful Discrimination
344
2.
Deep-Seated Prejudice Causing Inaccurate Stereotypes That Do Not Reflect Class Members Abilities
345
3.
Immutability
346
4.
Political Powerlessness
349
J.
Whether Homosexuals Comprise a Suspect or Quasi-Suspect Class
351
1.
Three Easily Applied Factors
351
2.
Immutability
351
3.
The Prevention/Immutability Distinction
352
K.
Whether the District Has a Substantial or Compelling State Interest in Barring Same-Sex Marriage
355
L.
Proposed Disposition: Reversal and Remand for Trial
356
POSTSCRIPT: RESPONSE TO MAJORITY ON EQUAL PROTECTION VII . 359
to marry. *309 FERREN, Associate Judge, concurring in part and dissenting in part: Plaintiff-appellants, two homosexual men, want to marry each other. They appeal from the trial courts order granting summary judgment for the District of Columbia, rejecting their complaint for an injunction to require the Clerk of the Superior Court to issue them a marriage license. Appellants contend the trial court erred in three respects: (1) ruling that the District of Columbia marriage statute, D.C.Code 30-101 to -121 (1993), prohibits the Clerk from issuing marriage licenses to same-sex couples; (2) ruling that the Clerk did not unlawfully discriminate against appellants under the District of Columbia Human Rights Act, D.C.Code 1-2501 to -2557 (1992), by refusing to issue them a marriage license; and (3) interpreting the marriage statute in a way that unconstitutionally deprives same-sex couples of the right We find no statutory violation or denial of due process, but, unlike the majority, I believe there are genuine issues of material fact precluding summary judgment on appellants constitutional claim that they have been denied equal protection of the laws. Specifically, I conclude that a trial is required to determine whether same-sex couples comprise a suspect or a quasi-suspect class entitled either to strict or to intermediate scrutiny of governmental discrimination against them-in this case denial of the right to marry. Furthermore, if, as a result of the trial, the court decides that same-sex couples do comprise such a protected class, the trial will also be needed to determine whether the District, despite such constitutionally protected status for same-sex couples, has a compelling, or at least a substantial, governmental interest in keeping the marriage limitation to heterosexual couples as is. If it does, the District would prevail, otherwise not. 6
Recognition that homosexuals-like racial minorities and women-are entitled to special constitutional protection, therefore, would not necessarily mean that homosexuals are constitutionally entitled to marry one another; not all governmental discrimination against constitutionally protected groups is forbidden. But I do not believe that this court can properly conclude at this point-as a matter of law without benefit of a trial-that appellants have failed to proffer an equal protection claim. Accordingly, unlike my colleagues, who dispose of the matter summarily, I would reverse and remand this case for trial on the equal protection issue.
other states; references to marriage in the Bible; and dictionary definitions of marriage-show that marriage inherently requires one male and one female participant. Furthermore, according to Judge Bowers, the City Council consciously chose not to make the language of the Human Rights Act applicable to the regulation of the marital relationship. He drew that conclusion from the fact that, only a few months before the Council enacted the Human Rights Act, it had rejected a proposal expressly to permit same-sex marriages. Judge Bowers concluded: [P]laintiffs were denied a marriage license because of the nature of marriage itself, requiring, as it does, that the parties thereto be a male and a female. What the plaintiffs herein sought a license to enter into, by definition, simply was not a marriage. Any change in that definition must come from the legislature-not this Court. Appellants moved for reconsideration. They asserted that, in ruling that same-sex couples did not have the right to marry, the trial court interpreted the marriage statute and the Human Rights Act in ways that violated appellants constitutional rights to due process and equal protection of the laws under the Fifth Amendment, and violated the establishment of religion clause of the First Amendment as well. In an opinion issued on June 2, 1992, Judge Bowers granted the motion for reconsideration but rejected appellants constitutional claims. Appellants filed a timely appeal on both statutory and constitutional grounds.1
I. PROCEEDINGS TO DATE On November 13, 1990, appellants Craig Robert Dean and Robert Gerard Gill applied for a marriage license from the Clerk of the Superior Court, as required by D.C.Code 30-110. The Clerk, acting as head of the Marriage License Bureau, denied their application, explaining his action in a memorandum to the Director of the courts Family Division: Title 30-110 of the District of Columbia Code authorizes the Clerk of the Court to grant or deny applications for marriage licenses. The sections of the District of Columbia Code governing marriages do not authorize marriage between persons of the same sex. Therefore the application for a marriage license in this case is respectfully denied. Appellants filed an action in Superior Court seeking declaratory and injunctive relief requiring the Clerk to issue them a marriage license. In their amended complaint, appellants alleged that they qualified for the license because the marriage statute, D.C.Code 30-101 to -121, is gender-neutral and, further, because the Clerk, by refusing to issue the license, had discriminated against them on grounds of sex or sexual orientation, in violation of the District of Columbia Human Rights Act, D.C.Code 1-2501 to -2557. The District moved to dismiss for failure to state a claim for relief. Judge Bowers granted summary judgment for the District. He explained that all definitional sources for marriage-the legislative history of the Marriage and Divorce Act, D.C.Law 1-107, 1977 D.C.Stat. 114; the various references to *310 gender in relevant provisions of the District of Columbia Code; the common law of the District of Columbia; decisions of appellate courts in
II. THE MARRIAGE STATUTE CLAIM Appellants contend that the Clerk should be required to issue them a marriage license because the marriage statute is gender-neutral and does not expressly prohibit same-sex marriages. We cannot agree. The language and legislative history of the marriage statute demonstrate that neither Congress nor the Council of the District of Columbia has ever intended to define marriage to include same-sex unions.
[1]
A. Legislative History of the Marriage Statute On March 3, 1901, Congress enacted the first District of 7
Columbia Code. See An Act to Establish a Code of Law for the District of Columbia, 31 Stat. 1189, ch. 854 (1901). That Act read: [A]ll acts of Congress by their terms applicable to the District of Columbia ... in force at the date of the passage of this act shall remain in force except in so far as the same are inconsistent with, or are replaced by, some provision of this code. Id., ch. 1, 1, at 1189. Chapter 43 of the Code addressed marriage;2 Chapter 22 dealt with *311 divorce.3 The current marriage provisions, D.C.Code 30-101 to -121 and, for the most part, the present divorce provisions, D.C.Code 16-901 to -924 (1989 & Supp.1993), are essentially the same as those enacted in 1901.4 The only significant changes in the marriage and divorce provisions since 1901 occurred in the Marriage and Divorce Act of 1977, D.C.Law 1-107, 1977 D.C.Stat. 114. See generally Samuel Green & John V. Long, The Real and Illusory Changes of the 1977 Marriage and Divorce Act, 27 CATH.U.L.REV. 469 (1978).5 Before that Act was adopted, however, Councilmember Arrington Dixon had introduced substantially different legislation, Bill No. 1-89, the District of Columbia Marriage and Divorce bill, which would have completely repealed and redrafted D.C.Code 30-101 to -121 (1973) (marriage) and 16-901 to -924 (1973) (divorce). See The District of Columbia Marriage and Divorce Act, Bill 1-89 (May 6, 1975, with amendments proposed July 7, 1975) (hereafter Original Bill 1-89). In particular, Bill No. 1-89 would have changed 30-101 to read: A marriage between two persons which is licensed, solemnized and registered as provided in this Act is valid in the District of Columbia. (Emphasis added.) Id. During a public hearing on Bill 1-89, Councilmember Dixon explained that the bill would permit marriages between persons of the same sex. See Councilmember Arrington Dixon, Opening Statement at Public Hearings on Bill No. 1-89 2 (June 7-8, 1975). Although the language of the bill did not directly authorize same-sex marriages, proposed 30-112 expressly referred to such unions and thus indirectly acknowledged their validity: (a) The court shall enter its decree declaring the invalidity of a marriage entered into under the following circumstances: ****** (2) a party lacks the physical capacity to consummate the marriage by sexual intercourse, and at the time the marriage was solemnized the other party did not know of the incapacity; provided that *312 this clause shall not apply to married persons of the same sex.
Original Bill 1-89, 30-112 (Emphasis added). If Bill 1-89 had become law, same-sex marriages clearly would have been authorized in the District. Because of the fervent debate generated by Bill 1-89,6 however, Councilmember Dixon moved to substitute for original Bill 1-89 another bill proposed by the bar associations. This substitute bill was the one Council enacted as the Marriage and Divorce Act of 1977. See 1977 D.C.Stat. 119. Rather than entirely repealing and redrafting D.C.Code 30-101 to -121 (1973) (marriage) and 16-901 to -924 (1973) (divorce), the 1977 Act merely amended existing code provisions. See COMM. ON THE JUDICIARY AND CRIM.LAW, REPORT ON BILL NO. 1-89, THE DISTRICT OF COLUMBIA MARRIAGE AND DIVORCE ACT, at 1-5 (June 24, 1976). The 1977 Act contained no reference to same-sex marriages. In fact, it made only the following two changes in the long-standing marriage chapter: Sec. 113. (a) Section 1291 of the Act of March 3, 1901 (D.C.Code, sec. 30-110) is amended by striking names, ages and color and inserting in lieu thereof names and ages. [7] (b) Section 1296 of the Act of March 3, 1901 (D.C.Code, sec. 30-116) is repealed.[8] [O. 7] 1977 D.C.Stat. 119. In sum, the 1977 Act made no change germane to the issue before us; we are left to interpret marriage as understood by the Congress that enacted and codified the marriage statute in 1901 and, later, as understood by the Council that implicitly reconfirmed existing provisions of that statute while amending others through the 1977 Act.
B. Statutory Definition of Marriage Because the present marriage statute is essentially the same as the 1901 statute, which was derived from even earlier legislation, see supra note 2, the initial question is: what did Congress intend by the word marriage when it enacted the marriage statute in 1901?9 Citing our well-known interpretive criteria, appellants stress that we should focus, first, on the plain words of the statute. See Peoples Drug Stores v. District of Columbia, 470 A.2d 751, 753 (D.C.1983) (en banc). They contend that since its inception the marriage statute, standing alone, has been essentially gender-neutral and, for that reason, has always authorized same-sex marriages. *313 One provision of the present marriage statute-and 8
only one-has always used gender-specific language.10 The so-called consanguinity provision, D.C.Code 30-101, refers to marriages of a man with a wife, and of a woman with a husband.11 Appellants maintain that the policy underlying this provision is the prevention of genetic birth defects and mental retardation, a policy that necessarily would not apply to same-sex couples because they cannot produce children together. From this policy premise, appellants argue that this one statutory exception to gender neutrality in the marriage statute actually substantiates their argument that the right to marry extends to same-sex couples. According to appellants, because the only gender references are contained in a public health provision, relevant only to opposite-sex couples, it follows, perforce, that the omission of gender references in all other provisions of the marriage statute necessarily implies that same-sex marriages are permitted. See McCray v. McGee, 504 A.2d 1128, 1130 (D.C.1986) (basic rule of statutory construction is that when a legislature makes express mention of one thing, the exclusion of others is implied, because there is an inference that all omissions should be understood as exclusions). Appellants argument, by its own terms, only has force if the consanguinity provision is limited to prohibitions against biological inbreeding. It is not. While that concern is obvious in the prohibition of a mans marrying his sister or a womans marrying her father, there is no genetic danger in other prohibited situations; for example, the prohibitions against a mans marrying his sons wife or a womans marrying her stepfather. See D.C.Code 30-101(1) and (2), supra note 11. The consanguinity provision, therefore, reflects taboos-indeed moral judgments about improper marriage relationships-that transcend genetic concerns. The use of gender-based terminology in 30-101 to prohibit certain marriages, therefore, reflects a legislative understanding that marriage, as understood by Congress at the time of original enactment and thereafter, is inherently a male-female relationship. If that were not so, some of the statutory prohibitions not based on genetic reproductive concerns either would not be there or, to be consistent, would have been extended, for example, to prohibit a mans marrying his stepfather (just as a man cannot lawfully marry his stepmother) or to prevent a womans marrying her wifes father (just as a woman cannot lawfully marry her husbands father). See D.C.Code 30-101, supra note 11. If appellants were to prevail in their statutory interpretation, the law would permit same-sex couples to enter into some kinds of marriage relationships that the
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statute forbids for opposite-sex couples, even though *314 such relationships would not be genetically dangerous for any kind of marriage. Indeed, if men could marry men, 30-101 would not preclude a bi-sexual man who may have had a biological son from marrying that son, or from marrying his own father or brother. We do not believe that Congress, almost a century ago, envisioned such possibilities, given the consanguinity prohibitions imposed on opposite sex couples. See supra note 11. Nor is there any indication that more recent Congresses, or the Council in amending the marriage statute, ever modified the fundamental legislative understanding that marriage is limited to opposite-sex couples. Appellants argument that 30-101 reflects merely public health limitations, leaving room for all genetically safe marriages regardless of gender, accordingly fails. In sum, to conclude that Congress intended to permit same-sex marriages would mean that Congress in 1901 intended to permit various categories of genetically safe, same-sex marriages that were denied, though genetically safe, to opposite-sex couples. There is no evidence this was the case; the consanguinity provisions, far from supporting appellants argument, actually reinforce the governments position that the legislature never had same-sex marriages in mind when adopting, codifying, or amending the marriage statute.
C. The Marriage Statute as Part of a Larger Legislative Scheme, Including the Divorce Statute Our conclusion that the marriage statute does not authorize same-sex marriages is buttressed by looking at the larger statutory scheme of which it is a part. See Citizens Assn of Georgetown v. Zoning Commn, 392 A.2d 1027, 1033 (D.C.1978) (en banc) (It is a canon of statutory interpretation that one looks at the particular statutory language within the context of the whole legislative scheme when legislative intent is to be determined.); see also 2A NORMAN J. SINGER, SUTHERLAND ON STATUTORY CONSTRUCTION 46.05 (5th ed. 1992). As indicated earlier, see supra notes 2 and 3, the marriage and divorce statutes originally were enacted at different times, but the modern statutes were both enacted in 1901. See supra notes 2 and 9. Nonetheless, these statutes from the beginning have been placed in different chapters of the D.C.Code, perhaps suggesting that they are not part of the same legislative scheme. On the other hand, there is, necessarily, a logical relationship between the marriage and divorce statutes; if same-sex couples can marry then, presumably, they must be able to divorce. Thus, as elaborated below, we can look at the divorce statute for clues as to how Congress, 9
as well as the Council, has understood marriage. The divorce statute, traceable to congressional legislation before codification in 1901, see supra note 3, is replete with gender-distinctive references. See D.C.Code 16-901 to -924 (1989). More specifically, the following provisions contain the terms husband and wife: D.C.Codes 16-904(d)(1) (annulment granted if either party has a husband or wife living), -911 (husband or wife must pay alimony to other spouse pending divorce), -912 (husband or wife may retain right of dower in others estate), -913 (husband or wife may be required to pay alimony when divorce is granted), -916 (court may decree permanent alimony if husband or wife fails to maintain needy spouse).12 Accordingly, when the marriage statute is read in context with the broader legislative scheme that includes divorce, one cannot say that marriage is gender-neutral. Although we attribute corroborative, not determinative, significance to the divorce statutes pervasive use of gender terminology, it is significant that Congress enacted and codified the divorce chapter at the same *315 time it enacted and codified the marriage chapter, in 1901, using gender-specific terminology in each. See District of Columbia v. Thompson, 593 A.2d 621, 630 (D.C.1991) (when legislature enacts two statutes at same time and the statutes have similar subject matter and purpose, principle of in pari materia dictates that the statutes should be read with reference to each other). That basic language has been carried forward ever since, both by Congress and by the Council of the District of Columbia. See supra note 3. This statutory evolution, therefore, strongly suggests a consistent legislative understanding and intent that marriage means-and thus is limited to-unions between persons of opposite sexes.
Law Dictionary printed in 1910-presumably reflecting the common understanding at the time the marriage statute was enacted in 1901-defined marriage as the civil status of one man and one woman united in law for life, for the discharge to each other and the community of the duties legally incumbent on those whose association is founded on the distinction of sex. BLACKS LAW DICTIONARY 762 (2d ed. 1910) (emphasis added). Similarly, Websters Dictionary from 1902 defined marry as follows: [t]o unite in wedlock or matrimony; to join, as a man and woman, for life; to make man and wife. WEBSTERS MODERN DICTIONARY 281 (1902) (emphasis added). The same dictionary today defines marriage as the state of being united to a person of the opposite sex as husband or wife. WEBSTERS THIRD NEW INTERNATIONAL DICTIONARY 1384 (1986) (emphasis added). Although this edition of Websters, as a third definition, defines marriage as an intimate or close union, see id., and commitment and union are undoubtedly fundamental elements of a marriage, we are satisfied that the ordinary understanding of the word marriage-both at the turn of the century when the marriage statute was enacted and in modern times when that statute was amended-means the union of two members of the opposite sex. Of course, the meanings of words are continually evolving, and we do not overlook the fact that the terms marriage and gay marriage are used colloquially today to refer to long-term same-sex relationships between gays and between lesbians. See Cory & LeRoy, Homosexual Marriage, 29 SEXOLOGY 660 (1963). Our task, however, is to determine what the legislature intended marriage to mean when the marriage statute was enacted, codified, or amended. Given the statutory language used, buttressed by the usual definition of marriage, we cannot conclude that any legislature for the District of Columbia that has addressed the marriage statute has ever intended to authorize same-sex unions.
D. The Traditional Understanding of Marriage Our statutory understanding is further confirmed by the ordinary sense and meaning traditionally attributed to the word marriage when used to indicate an intimate relationship. See Barbour v. District of Columbia Dept of Employment Servs., 499 A.2d 122, 125 (D.C.1985) (Words of a statute must be construed by their common meaning and their ordinary sense.); In re Estate of Shutack, 469 A.2d 427, 429 (D.C.1983) (The words of the statute should be construed according to their ordinary sense and with the meaning commonly attributed to them.). Blacks Law Dictionary defines marriage as the [l]egal union of one man and one woman as husband and wife. BLACKS LAW DICTIONARY 972 (6th ed. 1990) (emphasis added). The second edition of Blacks
E. Case Law from Other Jurisdictions Although not at all dispositive here, we note that the cases from other jurisdictions with marriage statutes similar to the Districts-neither expressly prohibiting nor expressly authorizing same-sex marriages-have uniformly interpreted marriage, by definition, as requiring two members of opposite sexes. The Supreme Court of Minnesota, for example, explained: Minn.St. c. 517, which governs marriage, employs that term as one of common usage, meaning the 10
state of union between persons of the opposite sex. It is unrealistic to think that the original draftsmen of our marriage statutes, which date from territorial days, would have used the term in any different sense. *316 Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185, 185-86 (1971), appeal dismissed, 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972). See also Jones v. Hallahan, 501 S.W.2d 588, 589 (Ky.1973) (same-sex couple incapable of entering into marriage as the term is defined); M.T. v. J.T., 140 N.J.Super. 77, 355 A.2d 204, 208 (App.Div.1976) (requirement that marriage must be between a man and a woman ... is so strongly and firmly implied from a full reading of the statutes that a different legislative intent, one which would sanction a marriage between persons of the same sex, cannot be fathomed); Singer v. Hara, 11 Wash.App. 247, 522 P.2d 1187, 1191 (1974) (marriage statute clearly founded upon the presumption that marriage, as a legal relationship, may exist only between one man and one woman); Peter G. Guthrie, Annotation, Marriage Between Persons of the Same Sex, 63 A.L.R.3d 1199, 1199 (1975) (In all cases so far discovered which have considered the question whether persons of the same sex may marry each other, the view has been taken that since the marriage relationship has always been the union of a man and a woman as husband and wife, there may be no valid contract entered into between persons of the same sex).13 While these cases do not deal with our local statute, they at least reflect the interpretive approach we apply here and thus provide precedent in the sense of analytical support for the result we reach.
ON THE JUDICIARY AND CRIM.LAW, REPORT ON BILL No. 1-36, THE ANTI-SEX DISCRIMINATORY LANGUAGE ACT, at 2-3 (May 20, 1976) (hereafter COMM. REPORT ON BILL 1-36). The Anti-Sex Discriminatory Language Act made only one change in the marriage statute: Sec. 32. Section 1292 of the Act of March 3, 1901 (D.C.Code, sec. 30-111), is amended by striking out unless the father of such persons, or if there be no father, the mother, and inserting in lieu thereof unless a parent. [[15] 1976 D.C.Stat. 201. Because Councilmember Dixons Bill 1-89 recognizing same-sex marriages was pending at the time the Council was discussing Bill 1-36 to establish the Anti-Sex Discriminatory Language Act, the Committee on the Judiciary and Criminal Law clarified the relationship between the two bills: It is true that Bill 1-36 makes substantive changes in the domestic relations law. However, every such change is designed to achieve only one result, i.e., to make the law equal in effect for males and females.... Comprehensive revision of the divorce and marriage laws is contemplated in another Council bill, Bill No. 1-89, the District of Columbia Uniform Marriage and Divorce act. That bill would make major revisions to local domestic relations law and would do so in a non-sex-discriminatory *317 manner.... [T]he Council should promptly enact Bill 1-36 which would do only one thing-enact the principle of sex equality into the D.C.Code including the domestic relations law. Thereafter, the Council may proceed to consider a more comprehensive revision of the domestic relations law.... COMM. REPORT ON BILL 1-36, at 5-6. This comment clarifies that the Anti-Sex Discriminatory Language Act served a limited purpose: to make the law equal in effect for men and women vis-a-vis each other; for example, it gave mothers a right equal to that of fathers to consent to marriage by a child under 18. See supra note 15. There was not a hint that the legislation was intended to give one class of males, e.g., gay men, an equality with another class of males, e.g., heterosexual men. Thus, the 1976 Act did not revise the substance of the marriage statute to redefine the term marriage.
F. The Anti-Sex Discriminatory Language Act of 1976 Appellants do not rest on their own interpretation of the marriage statute. They argue that the Council itself, through two separate pieces of legislation, has indirectly confirmed (or reinterpreted) the statutory definition of marriage in ways that guarantee the right to same-sex marriages. The first interpretive legislation was the Anti-Sex Discriminatory Language Act of 1976. See 1976 D.C.Stat. 194.14 This Act, which among other things amended the 1901 marriage statute, sought to achieve equality under the law for men and women by eliminating sex-based distinctions in the District of Columbia Code, so that the rights and responsibilities of persons under D.C. law will not be different solely on the basis of their sex. COMM.
G. The 1982 Gender Rule of Construction

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Finally, in 1982, the Council adopted a new Gender 11
Rule of Construction, D.C.Law 4-111, 2(a), 29 D.C.Reg. 1684 (1982), now contained in D.C.Code 49-203 (1990). Appellants say this Rule conclusively requires interpretation of the marriage statute to authorize same-sex marriages. This 1982 legislation amended the language of former D.C.Code 49-203, traceable to the 1901 Code, 31 Stat. 1189, ch. 854, Preamble, 2 (Second), which had provided: Words importing the masculine gender shall include all genders, except where such construction would be absurd or unreasonable. The new Rule also amended the language of D.C.Code 1-230, adopted in 1975, which had read: For the purposes of any act or resolution of the Council of the District of Columbia, unless specifically provided otherwise- ... (3) words importing one gender include and apply to the other gender as well. 22 D.C.Reg. 1990 (1975). In adopting the new Gender Rule of Construction in 1982, therefore, the Council amended two provisions of the D.C.Code (among others not relevant here). It amended 49-203 to say: Unless the Council of the District of Columbia specifically provides that this section shall be inapplicable to a particular act or section, all the words thereof importing 1 gender include and apply to the other gender as well. D.C.Code 49-203 (1990). And it amended 1-230(3) to read: With regard to resolutions, words importing 1 gender include and apply to the other gender as well. D.C.Code 1-230(3) (1992). Appellants argue that, when the Council removed the words except where such construction would be absurd or unreasonable from the 1901 rule of construction in former 49-203, without adding a disclaimer with respect to the marriage statute, the Council implicitly authorized same-sex marriages. We cannot agree. The legislative history of the Gender Rule of Construction makes clear that the Council enacted the Rule in 1982 for one purpose: to create a consistent gender rule of legislative construction throughout the D.C.Code. COMM. ON PUBLIC SERVICES & CONSUMER AFFAIRS, COMMENTS ON BILL 4-374, THE ANTI-SEX DISCRIMINATORY LANGUAGE ACT AMENDMENT ACT OF 1981, at 1 (Feb. 16, 1982). Wilhelmina J. Rolark, then Chair of the Committee on Public Services & Consumer Affairs, elaborated: Presently, there are two separate, somewhat inconsistent rules for interpreting statutory words having a gender meaning. Section 49-203 of the Code (31 Stat. 1189, enacted March 3, 1901) provides that words importing the masculine gender shall be held to include all genders, except where such construction would be absurd or unreasonable. By contrast, Code
section 1-230 (D.C.Law 1-17, 22 DCR 1990, effective September 23, 1975) provides that for the purposes of any act or resolution of the Council of the District of Columbia, unless specifically provided otherwise words importing one gender include and apply to the other gender as well. Id. Not only was the original (1901) 49-203 deficient because it did not apply to feminine gender words-e.g., the word steward in a statute would be construed to include a stewardess, whereas the word stewardess in a statute would not be construed to apply to a steward-but also that former *318 49-203 had different criteria from those in former 1-230 for determining when the gender rule of construction [would] not apply. COMM. ON THE JUDICIARY, REPORT ON BILL NO. 4-374, THE ANTI-SEX DISCRIMINATORY LANGUAGE ACT OF 1981, at 3 (Feb. 10, 1982). The Report to the Members of the Committee on the Judiciary explained: The absurd or unreasonable criteria is found in sec. 49-203. In sec. 1-230, the gender rule of that section applies unless specifically provided otherwise by the legislature. Section 2(a) of Bill 4-374 [to adopt the Gender Rule of Construction] would make the latter criteria the rule for all statutes in the Code. Id. Thus, the Council merely intended to make D.C.Code 49-203 (traceable to 1901) consistent with 1-230 (adopted in 1975) when, in 1982, it adopted the Gender Rule of Construction to remove the words except where such construction would be absurd or unreasonable from former 49-203. Had the Council intended to enlarge the statutory definition of marriage to include same-sex unions, it surely would have mentioned such a significant intention in the legislative history of the statute implementing the new Gender Rule of Construction. See National Org. for Women v. Mutual of Omaha Ins. Co., 531 A.2d 274, 276 (D.C.1987) (if Council intended such a dramatic change in law, it is reasonable to assume that there would have been at least some specific reference to it in the language of the Act or, at least, within its legislative history) (hereafter NOW ). The Council did not do so. The Council merely intended to resolve a conflict between two inconsistent rules of construction on the books. We 12
conclude, accordingly, that the Gender Rule of Construction, D.C.Code 49-203, 1-230, does not require recognition of same-sex marriages in the District. See NOW, 531 A.2d at 276. *** The Marriage and Divorce Act of 1977 and the Anti-Sex Discriminatory Language Act of 1976, as well as the Gender Rule of Construction enacted in 1982, did not substantively change the central provisions of the marriage statute enacted and codified in 1901. The commonly understood meaning of marriage in those years was limited to a union between a man and a woman. Congress, in enacting and then codifying the marriage statute, used gender-specific language which no later Congress or the Council of the District of Columbia has ever changed. The logically related divorce statute, loaded with even more gender-specific language and codified at the same time as the marriage statute-without subsequent material change affecting the definition of marriage-reflects the contemporary, common legislative understanding that marriage requires a man and woman. Indeed, the common societal understanding of marriage, reflected in legal and ordinary dictionary definitions from the last century until today, presupposes a heterosexual union. The courts of other jurisdictions take this view as well. All this convinces us that no legislature for the District of Columbia-Congress or Council-has ever intended to sanction same-sex marriages. The trial court, therefore, did not err in granting summary judgment for the District on appellants claim under the marriage statute.
goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodations, if the denial is wholly or partially for a discriminatory reason based *319 on the ... sex ... [or] sexual orientation ... of any individual. A place of public accommodation is defined in D.C.Code 1-2502(24) to include wholesale and retail stores, and establishments dealing with goods or services of any kind, as well as public halls and public elevators of buildings and structures. Appellants contend that the Marriage License Bureau is a place of public accommodation because it is an establishment dealing with goods or services of any kind and is located in the Superior Court building-a public hall. On appeal, the government assumes for the sake of argument that the Marriage License Bureau is a place of public accommodation. Furthermore, Elizabeth A. Leader and Barbara R. Lewis, District Human Rights Commissioners who, in their individual capacities, filed an amicae curiae brief on behalf of appellants, argue that all District of Columbia agencies are places of public accommodation, within the meaning of the Human Rights Act, because they provide goods and services to District residents. See also In the Matter of Kevin S. Dickerson v. District of Columbia Department of Human Services, District of Columbia Commission on Human Rights, No. 89-465-PA(N), Final Decision and Order (May 23, 1991) (District of Columbia Department of Human Services is place of public accommodation under Human Rights Act because it provides services to District residents). We, too, assume, without formally deciding, that the Marriage License Bureau is a place of public accommodation for purposes of our analysis. The Council of the District of Columbia enacted the Human Rights Act of 1977 to underscore the Councils intent that the elimination of discrimination within the District of Columbia should have the highest priority and that the Human Rights Act should therefore be read in harmony with and as supplementing other laws of the District. COMM. ON PUBLIC SERVICES AND CONSUMER AFFAIRS, REPORT ON BILL No. 2-179, THE HUMAN RIGHTS ACT OF 1977, at 3 (July 5, 1977) (citations and internal quotation marks omitted) (hereafter COMM. REPORT ON BILL 2-179). The Council undoubtedly intended the Human Rights Act to be a powerful, flexible, and far-reaching prohibition against discrimination of many kinds, including sex and sexual orientation. The Council, however, did not intend the Act to prohibit every discriminatory practice. For example, in NOW, 531 A.2d at 277-78, we concluded that the Council did not 13
III. THE HUMAN RIGHTS ACT CLAIM Appellants next contend that, by refusing to issue them a marriage license, the Clerk discriminated against them because of their sex or sexual orientation, in violation of the Human Rights Act, D.C.Code 1-2501 to -2557 (1992). Specifically, appellants argue that when the Marriage License Bureau, a place of public accommodation under the Clerk of the Superior Court, refuses to issue marriage licenses to same-sex couples, gays and lesbians are unlawfully denied an equal opportunity to participate in marriage, an important aspect of life. See D.C.Code 1-2511, -2519, -2532. Human Rights Act 1-2519(a)(1) makes it an unlawful discriminatory practice for one to deny, directly or indirectly, any person the full and equal enjoyment of the
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intend the Human Rights Act to apply to the gender-discriminatory actuarial pricing practices of insurance companies. We explained: It is true that it can be argued with some persuasion that the plain language of the Act prohibits discrimination based on gender in the services offered by insurance companies. See D.C.Code 1-2502(24), -2519 (1987). Significantly, however, the statute contains no language purporting explicitly to regulate insurance premium practices. If the Council had intended to effect such a dramatic change in insurance rate-setting practices, it is reasonable to assume that there would have been at least some specific reference to it in the language of the Act or, at least, within its legislative history. Id. at 276. Our analysis in NOW, determining whether the Council intended the Human Rights Act to preclude gender-based rate differentials in the insurance statute, dealt with a much clearer case than the one currently before us. In NOW, although the Committee Report and other legislative history never specifically referred to actuarial rating practices, the Council clearly had heard testimony regarding legislation in other states prohibiting discrimination by insurance companies, when the Council considered the 1973 regulation Governing Human Rights, see 34 DCRR (1973) (Title 34. Human Rights Law), which is virtually identical to the present Human Rights Act. See NOW, 531 A.2d at 277. Furthermore, we noted that, throughout the effective period of the Regulation and at the time the Human Rights Act was adopted, the insurance statute expressly allowed a three-year set-back16 for calculating *320 life insurance premiums for women, but not for men. See id. Finally, we considered the fact that, soon after adopting the Human Rights Act, the Council requested an opinion from the Corporation Counsel as to whether the life insurance set-backs violated the Act. See id. at 278. The Corporation Counsel issued an opinion saying such action would be lawful, and the Council accordingly increased the permissible set-back for women to six years. See id. Under these circumstances, we concluded that the Act did not preclude such differentials. We emphasized: If the Council had intended to effect such a dramatic change ..., it is
reasonable to assume that there would have been at least some specific reference to it in the language of the Act or, at least, within its legislative history. Id. at 276. Although the Council undoubtedly intended the Human Rights Act to be read broadly to eliminate the many proscribed forms of discrimination in the District, we cannot conclude that the Council ever intended to change the ordinary meaning of the word marriage simply by enacting the Human Rights Act. Had the Council intended to effect such a major definitional change, counter to common understanding, we would expect some mention of it in the Human Rights Act or at least in its legislative history. See NOW, 531 A.2d at 276. There is none. See COMM. REPORT ON BILL 2-179. This is not surprising, however, for by legislative definition-as we have seen-marriage requires persons of opposite sexes; there cannot be discrimination against a same-sex marriage if, by independent statutory definition extended to the Human Rights Act, there can be no such thing. See Singer, 522 P.2d at 1190-95 (Washingtons Equal Rights Amendment does not require the state to authorize same-sex marriage because such relationships are outside definition of marriage). Furthermore, in 1977, the same Council was considering both the Human Rights Act and the Marriage and Divorce Act legislation. Councilmembers were keenly aware of the gay marriage debate and presumably would have stated their intentions expressly if they had wanted the Human Rights Act, instead of the Marriage and Divorce Act, to expand the marriage statute to authorize same-sex unions. See NOW, 531 A.2d at 277 (References to other statutes is particularly appropriate when the statutes were enacted by the same legislative body, at the same session.). We therefore cannot conclude that the Council intended the Human Rights Act to change the fundamental definition of marriage. The trial judge properly granted summary judgment for the District on appellants Human Rights Act claim.
IV. THE CONSTITUTIOnal Issues: PROCEDURAL AND ANALYTICAL PREREQUISITES A. Whether Constitutional Issues Have Been Properly Raised Because of the way appellants presented their constitutional claims, there is a threshold question whether these claims are properly before this court. The amended complaint refers exclusively to statutory claims under the marriage law and under the Human Rights Act. 14
In appellants memorandum in support of their motion for summary judgment, however, they argued that the marriage statute should be read, if it can be, so as to avoid difficult and sensitive constitutional questions. Gay Rights Coalition of Georgetown University Law Center v. Georgetown University, 536 A.2d 1, 16 (D.C.1987) (en banc) (lead opinion). In other words, appellants argued as a fallback that, even if the trial court rejected their plain language and legislative history arguments, the statute could not survive a limitation to opposite-sex marriages unless that interpretation satisfied the Constitution. Specifically, appellants urged the court to use the approach we employed in Gay Rights Coalition: construe the statute in a way that saves its constitutionality-an analysis that inherently requires deciding whether a statute that bars same-sex marriages could withstand due process and equal protection challenges. See id., 536 A.2d at 49 (Ferren, J., concurring in the result in part and dissenting in part) (desire to save statute from constitutional infirmity means constitutional *321 analysis determines statutory analysis, in contrast with quite different ... doctrine favoring statutory over constitutional ground for decision when both are independently available). In its first opinion granting summary judgment for the District, the trial court ignored the constitutional issues plaintiff-appellants had presented. Appellants moved for reconsideration on constitutional grounds, presenting comprehensive arguments, supported by case law and other authorities, explaining why the marriage statute, if upheld, would violate appellants right to due process and equal protection of the laws. In response, the District contended that, until the filing of their motion for reconsideration the plaintiffs consistently maintained that their case did not focus upon constitutional issues. The District accused appellants of an eleventh hour attempt to recast themselves as victims of unconstitutional action. The trial court, however, granted appellants motion for reconsideration and expressly ruled upon-and rejected-the constitutional claims. The District has not questioned on appeal the propriety of our reaching these issues; and, in any event, given appellants and the trial courts presentation and resolution, respectively, of the constitutional claims, we conclude they are appropriately before us. At this point in the constitutional analysis, I write only for myself until Part V., which Judge STEADMAN expressly joins. Neither Judge TERRY nor Judge STEADMAN, however, joins in Part VI.
I turn to our standard of review. This case concerns cross-motions: the District moved to dismiss for failure to state a claim; plaintiff-appellants, presenting affidavits of compliance with all marriage statute application requirements and of rejection by the Clerk of the Superior Court, filed a motion for summary judgment. The trial court granted summary judgment for the District. See Bell v. Jones, 566 A.2d 1059, 1060 (D.C.1989) (motion for judgment on pleadings requires treatment as motion for summary judgment when it relies on matters outside the pleadings); Clay v. Hanson, 536 A.2d 1097, 1100 n. 3 (D.C.1988) (when judge considers materials beyond pleadings, motion to dismiss for failure to state claim is converted into motion for summary judgment). A motion for summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits ... show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Kurth v. Dobricky, 487 A.2d 220, 224 (D.C.1985) (quoting Super.Ct.Civ.R. 56(c)). Courts frequently have emphasized the importance of an adequate record in cases presenting complex constitutional issues, and accordingly they have stressed that, in such cases, summary judgment should be granted sparingly. See, e.g., Felix v. Young, 536 F.2d 1126, 1135 (6th Cir.1976) ( The adequacy of the record is particularly important where the court is called on to decide questions of constitutional law without benefit of a trial.); Waldie v. Schlesinger, 166 U.S.App.D.C. 175, 177, 509 F.2d 508, 510 (1974) ( a full development of the facts of these [equal protection] cases is essential to any meaningful assessment of appellants claim); see generally 6 Part II JAMES WILLIAM MOORE, MOORES FEDERAL PRACTICE 56.17 10 (1988); 10A CHARLES ALLEN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE 2732.2 (1983). The parties here do not dispute the basic, historical facts giving rise to the claim: appellants applied for a marriage license; if they had been an opposite-sex couple they would have qualified under the marriage statute; the clerk denied their application because they both are men.17 No party, *322 moreover, has asked for a trial. Thus, the only question the parties present is whether, on the undisputed facts of record, the District or the appellants should be entitled to a judgment as a matter of law, Super.Ct.Civ.R. 56(c) (1993)-i.e., of constitutional law. If, as it turns out, neither side is entitled to summary judgment, we must reverse the judgment for the District and remand the case for trial, even though no party has
B. Standard of Review 2013 Thomson Reuters. No claim to original U.S. Government Works. 15
asked for one; each sides request for a summary remedy in its favor does not nullify the right to a trial if summary judgment is denied. See Super.Ct.Civ.R. 56(d) (elaborating procedure when summary judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary); Estate of Wells v. Estate of Smith, 576 A.2d 707, 709 & 709 n. 1 (D.C.1990) (ordinarily upon reversal of summary judgment, appellate court remands for trial unless remand would be futile, e.g., if the only persons with knowledge of the [relevant] historical facts ... are deceased) (citations omitted).
ascertain the accuracy of a particular test for drugs, as it bears on guilt or innocence of a charged drug offense, see Jones v. United States, 548 A.2d 35 (D.C.1988). Such instances require the court to find social or scientific facts that transcend the individual case but determine, sometimes conclusively, how the case shall be decided. While deciding cases day-to-day, therefore, courts cannot help finding, and relying on, legislative facts; that process is inherent in the courts answering questions of law and thus is not left exclusively to legislatures. See Erickson, 574 P.2d at 5-6; FED.R.EVID. 201 advisory committees note (a).18 *323 As explained later, the question whether the state invidiously discriminates against homosexuals by withholding from same-sex couples the right to marry inevitably presents sub-questions about the nature and causes of homosexuality and, as a result, confronts this court with issues of legislative fact-finding. It is therefore necessary to explore in greater detail the judicial process of finding legislative facts. As discussed more fully below, courts traditionally answer questions of legislative fact, and thus questions of law, not only by referring to evidence of record but also by considering non-record sources such as scientific and social science studies found in law reviews and other journals. See generally Lewis, 408 A.2d at 311 n. 11; Erickson, 574 P.2d at 5; 2 MCCORMICK ON EVIDENCE 331 (4th ed. 1992), at 398-402; HOROWITZ, supra, at 45, 275. The extent to which courts can properly use non-record sources in this way is a difficult and sometimes controversial subject, as we shall see. In any event, as a prelude to discussion of the constitutional issues in this case, I believe I not only must elaborate the distinctions between adjudicative and legislative facts, but also must evaluate and apply the respective processes required for each kind of fact-finding-all in aid of deciding whether this case, factually, is ripe for summary judgment or requires a remand for trial.
C. Relevance of the Distinction Between Adjudicative Facts and Legislative Facts The fact that this case is presented on appeal purely as a question of law, based on undisputed facts, is troublesome, if not deceptive, because there are two kinds of fact at issue: adjudicative facts and legislative facts.
1. In General Courts use the term adjudicative fact to describe the events which have happened between the parties. See State v. Erickson, 574 P.2d 1, 4 (Alaska 1978) (Adjudicative facts ... are those facts which explain who did what, when, where, how, and with what motive and intent.) (citation omitted); FED.R.EVID. 201 advisory committees note (a) (1994) (Adjudicative facts are simply the facts of the particular case); see also Lewis v. United States, 408 A.2d 303, 311 n. 11 (D.C.1979) (calling adjudicative facts legal facts); DONALD L. HOROWITZ, THE COURTS AND SOCIAL POLICY 45 & n. 58, 275 (1977) (calling adjudicative facts historical facts). Legislative facts, in contrast, are patterns of social, economic, political, or scientific behavior or other data that a court inevitably uses to inform and shape the policy judgments it often has to make in deciding newly-presented questions of law. See Lewis, 408 A.2d at 311 n. 11; Erickson, 574 P.2d at 5; HOROWITZ, supra, at 45, 275; see generally JOHN MONAHAN & LAURENS WALKER, Social Authority: Obtaining, Evaluating, and Establishing Social Science in Law, 134 U.PA.L.REV. 477, 482-84 (1986). Courts, for example, may have to evaluate the impact of a proposed cross-racial adoption on a childs sense of identity, in order to decide the childs best interest, see In re R.M.G., 454 A.2d 776 (D.C.1982), or the court may have to
2. Adjudicative and Legislative Facts Distinguished In this case, all the undisputed facts plaintiff-appellants have supported by affidavits, see supra note 17, and presented for summary judgment as a matter of law are adjudicative facts: appellants are both men; they are residents of the District; they are not disqualified by any of the enumerated prohibitions under the marriage statute; they applied for a marriage license from the Districts Marriage License Bureau, presenting valid blood tests and 16
the name of an authorized person willing to perform the marriage ceremony; the Clerk of the Superior Court denied them a marriage license solely on the ground that the District of Columbia Code does not authorize marriage between persons of the same sex; they would have been issued a marriage license if they were a heterosexual couple; and the denial of a marriage license potentially denies them an extraordinary number of tangible benefits, based upon marital status, enumerated in the District of Columbia Code.19 *324 The first question, then, is whether these adjudicative facts are enough to resolve, through summary judgment, a same-sex couples constitutional challenge to the marriage statute. The most useful way to answer this question is to focus, for purposes of illustration, on equal protection of the laws, for which the ultimate legal question in this case is whether the marriage statute discriminates, without sufficient justification, against members of a constitutionally protected class (allegedly, unrelated adult homosexual couples). Compare Plyler v. Doe, 457 U.S. 202, 223-24, 102 S.Ct. 2382, 2397-98, 72 L.Ed.2d 786 (1982) (children of illegal aliens comprise protected class) with Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 312, 96 S.Ct. 2562, 2566, 49 L.Ed.2d 520 (1976) (police officers over age 50 do not comprise protected class). This statement of the ultimate issue requires the court to frame questions of adjudicative fact in a particular way: Are the plaintiffs actually members of the allegedly protected class? (Yes; they are both homosexual men.) Have they been treated in a discriminatory manner? (Yes; they have been denied a marriage license that would have been issued to an adult heterosexual couple.)20 The questions continue: Are members of the allegedly protected class (homosexual couples) entitled to greater constitutional protection against discriminatory treatment than members of other groups? Depending on the level of protection required, has the law unfairly discriminated against members of the allegedly protected class (homosexual couples)? These formulations are, fundamentally, questions of law, not questions of fact, since they focus on legal determinations: entitlement to greater protection, and on fairness or unfairness of discriminatory treatment. As I have indicated, however, the answers to these questions are determined, ultimately, not only by reference to the relevant adjudicative facts outlined above, but also by consideration of so-called legislative facts. More specifically, the legal question whether the state, in withholding the marriage statute from same-sex couples, violates their constitutional right to equal protection of the laws may turn to an appreciable
extent on whether homosexuality is, to take the extremes, a genetically determined *325 or a learned orientation. It is therefore critical to understand how such questions are, if at all, to be answered. This requires in-depth understanding of the courts legislative fact-finding process. Legislative facts-for example, the sub-category social facts-often are the critical facts used for answering major questions of constitutional law. See, e.g., Brown v. Board of Education, 347 U.S. 483, 494, 74 S.Ct. 686, 691-92, 98 L.Ed. 873 (1954) (demonstrable social fact that racial segregation of public schools generates a feeling of inferiority as to [Negro childrens] status in the community that may affect their hearts and minds in a way unlikely ever to be undone); In re R.M.G., 454 A.2d at 787-88 (in significant number of instances persons responsible for adoption decisions will not be able to focus adequately on an adoptive childs sense of identity, and thus on the childs best interest, without considering race) (opinion of Ferren, J.); id., 454 A.2d at 802 (Newman, J., dissenting) (A degree of race-consciousness is permissible to the achievement of [childs best] interest, because certain potential future hardships to the child arise when the parents are of a different race.). Similarly, legislative facts can be outcome-determinative political or economic facts. See, e.g., Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962) (recognition, based on political facts, of political disincentives to legislative cure for malapportionment of legislative representation); SEC v. Capital Gains Research Bureau, Inc., 300 F.2d 745, 750-51 (2d Cir.1961) (judicial notice of economic facts tending to prove advice tendered by small advisory service could not influence stock market), revd, 375 U.S. 180, 84 S.Ct. 275, 11 L.Ed.2d 237 (1963) (judicial notice of economic facts tending to prove the contrary). Legislative facts also include scientific facts, providing answers, for example, to the question whether DNA profiling evidence is admissible to corroborate the identification of a defendant in a criminal case, United States v. Porter, 618 A.2d 629, 630 (D.C.1992), or to the question whether drug-testing with the so-called EMIT system has general acceptance in the scientific community, see Jones, 548 A.2d at 39-47, or to the question whether cocaine could properly be characterized as a narcotic under a criminal statute, requiring inquiry into both pharmacological properties and psychological impact, see Erickson, 574 P.2d at 4-10. The Supreme Court of Alaska has nicely summarized the 17
uses courts make of legislative facts: Legislative facts come into play when the court is faced with the task of deciding the constitutionality of a statute, statutory interpretation or the extension or restriction of a common law rule upon grounds of policy. These policy decisions, as in the case at hand, often hinge on social, political, economic, or scientific facts, most of which no longer fall within the classification of irrefutable. Cases involving such decisions cannot be decided adequately without some view by the court of the policy considerations and background upon which the validity of a particular statute or rule is grounded. MCCORMICK ON EVIDENCE, 334 (2d ed. 1972), alludes to the proposition that the topic of judicial notice, particularly as to legislative facts, does not conveniently fit within the structured confines of the law of evidence, but rather is more appropriately categorized in the more general area of judicial reasoning. A distinction must be made between evidence of the particular facts of a case, which can be accepted only through prescribed methods calculated to assure credibility, and those [legislative] facts which are of greater policy significance in that they describe aspects of our larger environment and form the basis upon which adjudicative facts are evaluated. It is a slippery distinction at best; but it is one that has been drawn by [Professor Kenneth Culp] Davis, incorporated into the federal rules, and at least implicitly recognized in nearly every situation where a court has been called upon to address a question of policy in evaluating the rationality or reason behind a statute or rule. Erickson, 574 P.2d at 5-6 (footnotes omitted) (emphasis added). The Federal Rules of Evidence also stress the distinction between adjudicative and legislative *326 facts. The Advisory Committee Note points out that FED.R.EVID. 201 is limited to judicial notice of adjudicative facts, and that no federal rule of evidence deals with judicial notice of legislative facts. FED.R.EVID. 201 advisory committees note (a). Far from disparaging court involvement in legislative fact-finding, however, the Advisory Committee simply notes that only adjudicative facts can meet the high degree of indisputability [that] is the essential prerequisite to formally taking judicial notice. The Committee then quotes from Professor Davis, see supra note 18, and others, who encourage judges to make their own findings of legislative fact, not only from the trial record but also from sources outside the record as needed, to inform their judicial
reasoning-even though admittedly such facts, when found, will not be indisputable. Under this view, legislative fact-finding is akin to legal research, except that the judge is free to consult non-legal sources as well (sometimes found in law reviews featuring interdisciplinary articles). Seen in this way, a judge who studies journals of social science, for example, in aid of constitutional rulings is, perhaps, better characterized as engaging in the process of answering questions of law than of taking judicial notice of legislative facts. See 2 MCCORMICK, supra, 331. It may appear that, through legislative fact-finding, the trial or appellate judge is on a personal frolic, divorced too much from the parties presentations, but that is an incorrect perception, and it would be wrong to say the traditional approach to legislative fact-finding is inappropriate or altogether unsatisfactory. The real concern is not whether judges should engage in legislative fact-finding; they inevitably do. No one can persuasively argue that the courts have no business deciding, for example, whether a particular drug fits the statutory definition of a narcotic, see Erickson, 574 P.2d at 18-23, or whether race affects a childs sense of identity, for purposes of determining whether a cross-racial adoption will be in the childs best interest, see In re R.M.G., 454 A.2d at 791-94. Courts rarely can avoid such issues. The concern, rather, is that certain kinds of legislative facts may be too difficult to ascertain, or simply may be too controversial, for a court-rather than the legislature itself-to decide. I will return to this difficulty or controversy theme later; the point here is to make clear that there is quite a difference between saying a court should not engage in any legislative fact-finding and saying a court should stay away from particular legislative fact-finding. The former would be ill-advised and often impossible; the latter, on occasion, may be prudent.
3. Judicial Process of Legislative Fact-Finding Overt legislative fact-finding is traceable to Muller v. Oregon, 208 U.S. 412, 419-20, 28 S.Ct. 324, 325-26, 52 L.Ed. 551 (1908), where the Supreme Court upheld the constitutionality of an Oregon law limiting womens factory work to ten hours a day after relying on amicus attorney Louis D. Brandeiss brief, which had presented 90 reports of committees, bureaus of statistics, commissioners of hygiene, and inspectors of factories detailing how long working hours, under the circumstances, were dangerous to women. Justice Holmes later summarized the principle: A judge sitting with a jury is not competent to decide issues of fact; but matters of fact that are merely premises to a rule of law he may 18
decide. Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 227, 29 S.Ct. 67, 70, 53 L.Ed. 150 (1908).21 *327 Accordingly, whereas adjudicative facts are found exclusively on the basis of trial testimony by so-called fact witnesses and of properly verified documentary evidence, legislative facts are often found differently. The process set up to establish the one is not necessarily adequate to ascertain the other. HOROWITZ, supra, at 45. Legislative facts commonly are found after hearing testimony by qualified experts, but that testimony is usually buttressed by judicial attention not only to other court decisions but also to scientific or social science literature, including books, treatises, law reviews, and other journals containing useful information not of record.22 Legislative facts also sometimes are found exclusively in non-record sources,23 such as a partys Brandeis brief and the judges own research, without help from expert testimony. See e.g., Brown, 347 U.S. at 489-94, 74 S.Ct. at 688-91; McLean v. Arkansas, 211 U.S. 539, 549-50, 29 S.Ct. 206, 208-09, 53 L.Ed. 315 (1909); Muller, 208 U.S. at 419-20, 28 S.Ct. at 325-26; Ribnik v. McBride, 277 U.S. 350, 363-72, 48 S.Ct. 545, 548-52, 72 L.Ed. 913 (1928) (Stone, J., dissenting). The idea of gathering non-record information appears antithetical to the traditional understanding of sound judicial fact-finding; but, as we have seen with respect to legislative (though not adjudicative) facts, it is done every day as judges-especially appellate judges-search for authority to resolve difficult legal issues requiring policy resolution. Cross-examination of such non-record material, of course, is missing, except insofar as author contests author and the judge applies his or her own critical faculties to the debate. All the data is then tested against legal norms. In short, the appellate judge tests the parties proffers of legislative fact against reasoned, published authorities who have attempted to seek the truth through documented research, often critical of earlier efforts. This is the process that Justice Holmes called merely identifying premises for adopting a rule of law, see Prentis, 211 U.S. at 227, 29 S.Ct. at 69-70, and that Professors Morgan, Davis, and others have characterized as part of judicial reasoning and law-making rather than of traditional fact-finding. See, e.g., E.M. Morgan, Judicial Notice, 57 HARV.L.REV. 269, 270-71 (1944); K.C. Davis, An Approach to Problems of Evidence in the Administrative Process, 55 HARV.L.REV. 364, 403 (1942); J.B. THAYER, PRELIMINARY TREATISE ON EVIDENCE 279-80 (1898); Erickson, 574 P.2d at 5-6. How can legislative fact-finding best be conducted?
Ideally, several qualified experts on all sides of a social or scientific issue would appear in the trial court, subject to cross-examination not only about their own views but also about the views of other testifying experts, as well as the views of non-testifying authors of seminal articles on the subject. Indeed, ideally the very authors of the most probative studies would be among the experts who testify. In this way, highly qualified expert testimony would serve at least three important functions: focus the courts attention on the most relevant concerns, present the range of informed opinion on the subject, and both identify and critique the most probative literature. The court, *328 therefore, would achieve a sharpened, presumably reliable insight into complicated matters that, without such help, would be much more difficult for the judge to understand. The dollar costs and time required for the ideal approach may be prohibitive, however, with the result that a typical hearing will involve only a few experts, often extreme proponents for the parties respective views, who are likely not to be particularly well qualified and may not provide sufficient, let alone trustworthy, data permitting the court to rule with confidence. This court accordingly has stressed-for example, in connection with expert testimony on the question whether there is a consensus in the scientific community on the accuracy of EMIT drug testing-that non-record sources of information may be crucial to sound legislative fact-finding; reference to such outside sources may be useful in exposing a proffered experts bias or incompetence. Jones, 548 A.2d at 42. Professor Donald L. Horowitz, who has substantial reservations about the capacity of courts to make social policy, is skeptical in part because he worries that the experts selected to testify as to legislative facts too often will lack sufficient qualifications, and that evidentiary rules-in particular FED.R.EVID. 803-will keep out of the trial record seminal studies the courts should know about. He therefore advocates rules changes to admit books and articles on matters of social fact directly into evidence as exhibits, not require as a precondition that an expert refer to them in his [or her] testimony,[24] abolish the favored position of government reports,[25] and permit counsel to attack the reliability of the studies directly. This is no panacea, but it would bring the judge one step closer to the original materials, permit him [or her] more easily to check the statements of 19
advocates and interpreters, and-since the studies will be more readily accessible to the judge-perhaps encourage expert witnesses to gear their presentations more closely to what the studies do and do not in fact show. So far, expert witnesses have had too much latitude to parade their own preferences as science. HOROWITZ, supra, at 281. In short, Professor Horowitz has greater confidence in legislative fact-finding directly by judges than he does in building a trial record with expert testimony-unless, presumably, the judge can supplement the record by any means necessary to reach critical sources that will help the judge test the experts when counsel have not effectively completed the job. If, as others have said, trial and appellate judges, as fact-finders, are presently allowed unlimited access to non-record sources of legislative fact, then of course Professor Horowitzs concerns about the rules of evidence have become substantially moot. Based on the foregoing considerations, it is questionable whether a hearing with expert testimony about issues of legislative fact would reveal more reliable or higher quality information than is available by referring to authorities submitted in briefs by both sides, and, in appropriate cases, by additional research at the appellate level. Erickson, 574 P.2d at 6. The advantage of such a costly exercise is likely, on too many occasions, to be marginal at best, and the further away the hearing is from the ideal model I have posited (using the most highly qualified experts), the more the judge will confront distorted, perhaps even biased, presentations and thus have to rely primarily on many non-record sources for critical scientific or social science information. See generally Erickson, 574 P.2d at 4-7. It is clear, of course, that a trial judge, or an appellate court reviewing a dismissal or summary judgment order, has discretion to order a hearing to help establish legislative facts. For example, in *329 Chastelton Corp. v. Sinclair, 264 U.S. 543, 44 S.Ct. 405, 68 L.Ed. 841 (1924), when a landlord claimed that an emergency justifying rent control was at an end and that continuing such regulation was unconstitutionally confiscatory, Justice Holmes opined: It is conceivable that, as is shown in an affidavit attached to the bill, extensive activity in building has added to the ease of finding an abode. If about all that remains of war conditions is the increased cost of
living, that is not in itself a justification of the act. Without going beyond the limits of judicial knowledge, we can say at least that the plaintiffs allegations cannot be declared offhand to be unmaintainable, and that it is not impossible that a full development of the facts will show them to be true. In that case the operation of the statute would be at an end. We need not enquire how far this Court might go in deciding the question for itself, on the principles explained in Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 227 [29 S.Ct. 67, 69-70, 53 L.Ed. 150]. See Gardner v. Collector, 6 Wall. 499 [18 L.Ed. 890]. South Ottawa v. Perkins, 94 U.S. 260 [24 L.Ed. 154]. Jones v. United States, 137 U.S. 202 [11 S.Ct. 80, 34 L.Ed. 691]. Travis v. Yale & Towne Manufacturing Co., 252 U.S. 60, 80 [40 S.Ct. 228, 232, 64 L.Ed. 460]. These cases show that the Court may ascertain as it sees fit any fact that is merely a ground for laying down a rule of law, and if the question were only whether the statute is in force today, upon the facts that we judicially know we should be compelled to say that the law has ceased to operate. Here however it is material to know the condition of Washington at different dates in the past. Obviously the facts should be accurately ascertained and carefully weighed, and this can be done more conveniently in the Supreme Court of the District [a trial court] than here. The evidence should be preserved so that if necessary it can be considered by this Court. Id. at 548-49, 44 S.Ct. at 406 (emphasis added). Justice Holmes, though mindful of the appellate courts authority to find its own legislative facts, concluded that, for the particular kind of facts at issue-conditions of the District of Columbia housing market over time-it would be more convenient for the trial court to do the work. In every case, therefore, an appellate court has discretion, based on the nature of the inquiry and the trial court record, to determine how to decide questions of law when the record itself does not supply testimony or other documentation adequate for finding essential legislative facts. Certainly, the appellate court can remand for further proceedings as needed, see Chastelton Corp., 264 U.S. at 548-49, 44 S.Ct. at 406-07, but the court also can say, without fear of jurisprudential heresy, that the data proffered by the parties, as well as by the trial court, from non-record, uncross-examined sources, when supplemented by the appellate courts own like research, will suffice in a particular case for constitutional decision-making. This prescribed free rein for judges to consult non-record sources for legislative facts to inform their policy 20
judgments is not without limit, however. While not necessarily undisputably true, it would appear that these legislative facts must at least appear to be more likely than not true if the opinion is going to have the requisite intellectual legitimacy upon which the authority of judge-made rules is ultimately founded. 2 MCCORMICK, supra, 331, at 400 (emphasis added). Accordingly, despite the appropriateness, indeed the desirability if not necessity, of judges conducting their own research in non-record, even non-proffered, sources, that exercise must reflect intellectual integrity such that the result, if not irrefutable, at least is unquestionably principled. The point not to be forgotten, however, as Professor Horowitz has emphasized, is that the likelihood of expert testimony of record being superior to the courts own resourcefulness in finding legislative facts is often highly questionable. See HOROWITZ, supra, at 281. The quality of the paid experts too often will be limited to persons who have not done the most careful studies themselves and, in any event, may have an ax to grind that, absent very skillful cross-examination, can create a record that hides the real truth. See id. It *330 may be more convenient for an appellate court to remand for relatively easy legislative fact-finding, as in Chastelton Corp., where collection and presentation of historical economic data (housing market conditions) is likely to be straightforward, akin to adjudicative fact-finding. Arguably, the more complex the issue-for example, the nature and causes of homosexuality-the greater the risk that a hearing will yield no better, and perhaps less satisfactory, results than non-record sources, including a judges own research into primary data, helped along, of course, by counsels advocacy. See HOROWITZ, supra, at 281. Whether the process I have been discussing is called legislative fact-finding or answering questions of law, the exercise is all the more difficult because legislative facts not only are rarely indisputable or irrefutable but also commonly change from time to time, whether they are social, political, economic, or scientific facts. In contrast with adjudicative facts, which typically are static, see Lewis, 408 A.2d at 311 n. 11, legislative facts are not necessarily immutable because they typically involve patterns of behavior-or understandings of patterns of behavior-that can change over time. See HOROWITZ,
supra, at 275. Patterns can and sometimes do change, especially at the lower levels of analysis at which verifiable propositions are likely to be found. If law is to follow behavior, it must constantly monitor such changes-a most difficult undertaking. Id. (quoted in Lewis, 408 A.2d at 311 n. 11). The difficulties of legislative fact-finding-especially its differences from traditional, record-based adjudicative fact-finding-cause some lawyers and judges to say that, at least in difficult, controversial cases, legislative fact-finding should be left to the legislature. Perhaps they say this out of a belief that legislatures are better equipped to find such facts, since everyone even marginally interested in a matter has standing to be heard and, presumably, helps round out the record. But saying that proves too much, for the legislative process, virtually by definition, usually plays to majorities, and legislators can use any variety of protest or inconclusiveness of fact to ignore or defer attention to serious, often worthy claims of constitutional rights advanced by victimized minorities. The truth is, a legislative hearing is not necessarily better suited than a court hearing is to making supportable findings, for example, about the nature and causes of homosexuality, including its degree of immutability. In fact, there is no guarantee that a legislature would ever find reason-or political courage-to schedule such a hearing. In contrast with legislatures, however, the courts are commissioned, among other things, to assure constitutional due process and equal protection of the laws for minorities, without fear of electoral consequences-especially in jurisdictions, such as ours, where judicial selection is immune from popular vote. Difficult as it may be to determine legislative facts for making social and legal judgments about the constitutional rights of homosexuals, the courts have been asked to do so, they are obligated to do so, and they are as equipped as any institution to do so. ****** In sum, the question whether appellants constitutional rights to due process and equal protection of the laws, while not presenting any genuine issue of material adjudicative fact in this case, requires a most difficult undertaking, id.: ascertainment and application of legislative facts that include, as we shall see, some findings about the origins of homosexuality and the extent 21
to which sexual orientation is immutable. For that fact-finding (or call it answering questions of law), both parties have relied exclusively on case law and on non-record sources: law reviews, scientific articles, social science compilations. No expert testimony has been proffered. Whether this particular invitation for judicial findings of legislative fact provides enough material, along with our own research, for this court to rule definitively here is a critical, very difficult question. I defer the answer until I explore the parties presentations. In doing so, I will rely not only on case law but also on scientific and social science sources proffered by the parties-and found on my own-of the sort *331 judges traditionally rely on to decide constitutional questions of the magnitude presented.
argument that the Fourteenth Amendment incorporates and forbids whatever the Fifth Amendment forbids, Palko announced the so-called selective incorporation approach. The Court characterized the fundamental rights that are so incorporated, and thus binding on the states, as those having their source in the belief that neither liberty nor justice would exist if they were sacrificed. Id. at 326, 58 S.Ct. at 152.26 Over thirty years later, the Court held that the Fourteenth Amendment guarantees a right of jury trial in all criminal cases which-were they to be tried in a federal court-would come within the Sixth Amendments guarantee. Duncan v. Louisiana, 391 U.S. 145, 149, 88 S.Ct. 1444, 1447, 20 L.Ed.2d 491 (1968). The Court premised its ruling on a belief that trial by jury in criminal cases is fundamental to the American scheme of justice, id. (emphasis added)-a fundamental-right formulation the Court expressly recognized as somewhat different from Palko s. See Duncan, 391 U.S. at 149 n. 14, 88 S.Ct. at 1447-48 n. 14.27 Finally, in Moore v. City of East Cleveland (plurality opinion), the Court overturned a conviction under a housing ordinance that denied certain family members the right to live together. The Court premised its decision on the due process clause, which protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nations history and tradition. 431 U.S. at 503, 97 S.Ct. at 1938 (footnote omitted) (emphasis added).28 *332 This brings us to Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986), which presented the question whether the Federal Constitution confers a fundamental right upon homosexuals to engage in [consensual] sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time. Id. at 190, 106 S.Ct. at 2843. The Court answered No, expressly reserving the question whether the Georgia statute criminalizing sodomy is constitutional as applied to consensual heterosexual sodomy. See id. at 188 n. 2, 106 S.Ct. at 2842 n. 2 (We express no opinion on the constitutionality of the Georgia statute as applied to other acts of sodomy.). Writing for the majority, Justice White quoted both Palko and Moore (reflecting the range of fundamental right formulations under the due process clause) and concluded that neither of these formulations would extend a fundamental right to homosexuals to engage in acts of consensual sodomy. Id. at 192, 106 S.Ct. at 2845. As in Hardwick, we need not resolve where, along the 22
V. CONSTITUTIONAL DUE PROCESS: IS SAME-SEX MARRIAGE A FUNDAMENTAL RIGHT? Appellants contend that interpreting the marriage statute in a manner that denies same-sex couples the opportunity to marry violates their constitutional rights. Specifically, they argue, first, that even if marriage is traditionally understood and statutorily defined to include only opposite-sex couples, this limitation of the right to marry unconstitutionally burdens gays and lesbians fundamental right to marry as they choose-a right protected by the due process clause of the Fifth Amendment. I speak now for the division majority; we conclude that same-sex marriage is not a fundamental right protected by the due process clause, because that kind of relationship is not deeply rooted in this Nations history and tradition. Moore v. City of East Cleveland, 431 U.S. 494, 503, 97 S.Ct. 1932, 1938, 52 L.Ed.2d 531 (1977).
[5]
A. Definition of Fundamental Right The Supreme Court initially characterized as fundamental rights, entitled to heightened judicial protection under the due process clause, those privileges and immunities that belong to someone as a citizen of the United States-and thus cannot be denied by the states-because they are implicit in the concept of ordered liberty. Palco v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288 (1937) (Fifth Amendment double jeopardy clause did not bar states appealing second degree murder conviction for alleged evidentiary and instructional errors and, upon obtaining reversal, retrying defendant for first degree murder) (emphasis added). In rejecting the
continuum between Palko and Moore, the correct formulation falls. As elaborated below, we conclude that even under Moore s most inclusive definition of fundamental right, appellants due process claim fails.
B. Appellants Due Process Claim The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men [and women]. Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 1824, 18 L.Ed.2d 1010 (1967). More specifically, the Supreme Court has emphasized that the right to marry is part of the fundamental right of privacy implicit in the Fourteenth Amendments Due Process Clause. Zablocki v. Redhail, 434 U.S. 374, 384, 98 S.Ct. 673, 680, 54 L.Ed.2d 618 (1978). In addressing a Wisconsin law that prohibited a couple from marrying if one of them had an outstanding child support obligation, the Court in Zablocki explained: When a statutory classification significantly interferes with the exercise of a fundamental right, it cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate only those interests. Id. at 388, 98 S.Ct. at 682. The Court then concluded that an unpaid child support obligation did not give the state a sufficiently compelling reason to deny the couple the fundamental right to marry, and thus the Court declared the law invalid as an unconstitutional denial of equal protection of the laws. See id. at 388-91, 98 S.Ct. at 682-84. An historical survey of Supreme Court cases concerning the fundamental right to marry, however, demonstrates that the Court has called this right fundamental because of its link to procreation. See Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44, 55 (1993). The Court first discussed marriage as a fundamental right in Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942), a case striking an Oklahoma statute that allowed the state to sterilize habitual criminals without their consent. In explicating *333 the rationale for decision, the Court stressed that [m]arriage and procreation are fundamental to the very existence and survival of the race. Skinner, 316 U.S. at 541, 62 S.Ct. at 1113. In Zablocki, moreover, the Court explained: It is not surprising that the decision to marry has been placed on the same level of importance as decisions relating to procreation, childbirth, child rearing, and family relationships. As the facts of this case illustrate, it would make little
sense to recognize a right of privacy with respect to other matters of family life and not with respect to the decision to enter the relationship that is the foundation of the family in our society.... [I]f appellees right to procreate means anything at all, it must imply some right to enter the only relationship in which the State of Wisconsin allows sexual relations legally to take place. 434 U.S. at 386, 98 S.Ct. at 681 (footnote omitted). See also Loving, 388 U.S. at 12, 87 S.Ct. at 1824 (Marriage is one of the basic civil rights of man, fundamental to our very existence and survival.) (quoting Skinner, 316 U.S. at 541, 62 S.Ct. at 1113). Although we recognize that gay and lesbian couples can and do have children through adoption, surrogacy, and artificial insemination, see Developments in the Law-Sexual Orientation and the Law, 102 HARV.L.REV. 1508, 1642-60 (1989) (hereafter Sexual Orientation and the Law ), and that not all heterosexual married couples are able, or choose, to procreate, we cannot overlook the fact that the Supreme Court has deemed marriage a fundamental right substantially because of its relationship to procreation. Thus, in recognizing a fundamental right to marry, the Court has only contemplated marriages between persons of opposite sexes-persons who had the possibility of having children with each other. See Baehr, 852 P.2d at 56; see generally Note, Homosexuals Right to Marry: A Constitutional Test and a Legislative Solution, 128 U.PA.L.REV. 193, 200-02 (1979) (hereafter Homosexuals Right to Marry ). The question, then, is whether there is a constitutional basis under the due process clause for saying that this recognized, fundamental right of heterosexual couples to marry also extends to gay and lesbian couples. The answer, very simply, is No. Even without reference to Hardwick s constitutional approval of statutes criminalizing consensual sodomy, we cannot say that same-sex marriage is deeply rooted in this Nations history and tradition. Moore, 431 U.S. at 503, 97 S.Ct. at 1938. Indeed, the District of Columbia marriage statute reflects an altogether different tradition. Accordingly, same-sex marriage cannot be called a fundamental right protected by the due process clause.
VI. EQUAL PROTECTION: ARE HOMOSEXUALS A SUSPECT OR QUASI-SUSPECT CLASS? 23
A. The Trial Courts Ruling I write, once again, only for myself, and thus, in the balance of this opinion, respectfully dissent from the judgment to affirm. Appellants also maintain that the statute limiting marriage to opposite-sex couples unconstitutionally discriminates against them as a gay couple, in violation of their Fifth Amendment right to equal protection of the laws.29 The trial court rejected this contention in a Supplemental Memorandum Opinion and Order of June 2, 1992. The court concluded that homosexuals comprise neither a suspect class mandating strict scrutiny of the statutory bar against same-sex marriage, nor a quasi-suspect class requiring intermediate scrutiny of the marriage barrier. See Plyler v. Doe, 457 U.S. at 216 & n. 14, 217-18, 102 S.Ct. at 2394-95 & n. 14, 2395. The court accordingly held that the rational basis test applied and that the statute limiting marriage to heterosexuals is rationally related to three legitimate state interest[s]: *334 [1] fostering at a socially-approved point in time (i.e., during marriage), that which is essential to the very survival of the human race, namely, procreation.... [2] [prohibiting] ... the sexual conduct, to wit, sodomy, commonly associated with homosexual status-conduct deemed by society to be so morally reprehensible as to be a criminal offense in the District of Columbia and many other jurisdictions.[30] [3] Finally, the legislature could also rationally conclude that such authorization would constitute unprecedented and unwarranted social tinkering with one of the most sacred institutions known to mankind, namely, marriage.... [Footnotes omitted.] The court then asserted in a footnote: Indeed, the result would not be different even if plaintiffs were members of a suspect or quasi-suspect class. As previously noted, the states interests and concerns are not only legitimate but compelling. And realistically there is no less restrictive means of adequately addressing them than by simply prohibiting the proposed union.
The fact that same-sex marriage is not a fundamental right, entitled to due process protection, see supra Part V., does not end the constitutional inquiry; equal protection analysis is available to determine whether the classification at issue, unrelated adult homosexual couples,31 can serve as a legitimate basis for excluding persons from a state benefit-in this case the right to marry-which is available virtually without limitation to unrelated adult heterosexual couples. The Supreme Court has explained that certain state-imposed limitations or exclusions can violate the equal protection guarantee either (1) by restricting the exercise of a fundamental right, see Skinner, 316 U.S. at 541, 62 S.Ct. at 1113-not the case here32 -or (2) by discriminating, without sufficient justification, against members of a constitutionally protected class. See Plyler, 457 U.S. at 216-18, 102 S.Ct. at 2394-95; Massachusetts Bd. of Retirement v. Murgia, 427 U.S. at 312, 96 S.Ct. at 2566. This case concerns the latter, discrimination category. It is important to say at the outset of this discussion what will become clearer as I proceed: the question I am addressing-whether homosexuals, see supra note 31, comprise a constitutionally protected class-must be answered for equal protection purposes generally, not just for a marriage case. That is to say, the answer to this classification question will be the same whether the issue in a particular case is alleged discrimination against homosexuals in employment, or in housing, or under the marriage statute; homosexuals either will, or will not, comprise a class entitled to special constitutional scrutiny of alleged discrimination against them. What will not be the same from case to case, however, is the ultimate outcome resulting *335 from that classification. Suppose, for example, this court were to conclude here, or in another case, that homosexuals comprise a constitutionally protected class. This would do no more than shift to the government in a particular case the burden of proving that the alleged discrimination against homosexuals served a compelling, or at least an important, governmental interest. See Plyler, 457 U.S. at 216-18, 102 S.Ct. at 2394-95. Thus, classification of homosexuals as a constitutionally protected class would not grant them the right to marry one another. It is theoretically possible that the government would fail to carry its burden in a housing or employment discrimination case but might succeed, nonetheless, in demonstrating why, in the public interest, only heterosexuals should be allowed to marry. The point is: in the ensuing discussion of whether homosexuals comprise a constitutionally protected class-just as racial minorities and women are specially 24
B. Introduction: Discrimination and Equal Protection of the Laws
protected classes-I shall be dealing with a threshold inquiry that does not necessarily dictate the result of the case. Basically, I shall be dealing with the question (1) whether the plaintiffs-appellants should have the burden of showing why there is no rational basis for disallowing homosexuals to marry one another, or (2) whether instead the District should have the burden of showing a compelling, or at least substantial, governmental interest in preventing homosexuals from marrying one another. It also is important to be clear from the beginning that, even though the state does not withhold a right deemed fundamental for constitutional purposes, a legislative classification that withholds other significant rights and benefits from a protected class of persons, while making those benefits available to others, can just as surely violate the equal protection clause. See, e.g., Plyler, 457 U.S. at 216-18, 102 S.Ct. at 2394-95 (Texas statute withholding from local school districts state funds for educating children who were not legally admitted violates equal protection clause). Thus, even though only heterosexual couples have a fundamental right to marry, the aspect of marriage that elevates it to a fundamental right under the due process clause-the capacity to have children together-does not gainsay the fact that marriage has other important attributes which, as the Supreme Court itself has recognized, can be significant enough on occasion to outweigh various interests the state may have in withholding the right to marry from one group or another.
an important and significant aspect of the marital relationship. [2] In addition, many religions recognize marriage as having spiritual significance; for some inmates and their spouses, therefore, the commitment of marriage may be an exercise of religious faith as well as an expression of personal dedication. [3] Third, most inmates eventually will be released by parole or commutation, and therefore most inmate marriages are formed in the expectation that they ultimately will be fully consummated. [4] Finally, marital status often is a precondition to the receipt of government benefits (e.g., Social Security benefits), property rights (e.g., tenancy by the entirety, inheritance rights), and other, less tangible benefits (e.g., legitimation of children born out of wedlock). These incidents of marriage, like the religious and personal aspects of the marriage commitment, are unaffected *336 by the fact of confinement or the pursuit of legitimate corrections goals. Id. at 95-96, 107 S.Ct. at 2265.
C. The Attributes of Marriage Justifying an Equal Protection Inquiry In Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), the Court held that a state law withholding from prisoners the right to marry violated due process because four important attributes of marriage, id. at 95, 107 S.Ct. at 2265, outweighed any penological concern the state could articulate to support the marriage ban. In particular, the Court said: The right to marry, like many other rights, is subject to substantial restrictions as a result of incarceration. Many important attributes of marriage remain, however, after taking into account the limitations imposed by prison life. [1] First, inmate marriages, like others, are expressions of emotional support and public commitment. These elements are
If these attributes of marriage are relevant to the needs and aspirations of gays and lesbians-as public education (not a fundamental right) was relevant to alien children (a quasi-suspect class) in Plyler, 457 U.S. at 217-18 & n. 16, 223-24, 230, 102 S.Ct. at 2395 & n. 16, 2397-98, 2401-02-we have the basis for inquiring whether a marriage statute that excludes homosexuals from the right to marry one another meets equal protection requirements. Appellants proffer that, given the nature of homosexuality, Turner s attributes of marriage-emotional support, religious or spiritual significance, physical consummation, and government and other benefits-are as relevant and important to same-sex couples as to heterosexual couples. I perceive no basis for doubting that appellants can make such a showing.33 Moreover, appellants buttress their argument by noting that many heterosexual couples are not able to have children, or may choose not to do so, whereas homosexual couples, absent state law or policy impediments,34 can and do elect parenthood through adoption, surrogacy, or artificial 25
insemination-the result being that parenthood, and even the benefits of procreation, are not necessarily limited to formally united heterosexual couples. After considering pertinent legislative facts and applying relevant case law, I must conclude-as elaborated later-that the trial court erred in deciding, as a matter of law, that homosexuals do not comprise a suspect or quasi-suspect class, and thus the court erred in concluding as a matter of law that the rational basis test applies to this case under the equal protection clause. On the other hand, I am unable to ascertain to the required degree of certainty from the record, supplemented by my own study, the legislative facts necessary for deciding as a matter of law whether homosexuals are entitled under the equal protection clause to special scrutiny of their claimed right to marry. Thus, as explained below, I believe a trial will be required to decide the classification issue: whether the rational basis test, or a higher form of scrutiny, applies.
States, 516 A.2d 923, 927 (D.C.1986). Although this case raises serious questions about the legitimacy, under the equal protection clause, of limiting marriage to opposite-sex couples, it appears that the Supreme Court has seen marriage as having a traditional principal purpose: to regulate and legitimize the procreation of children. See Zablocki, 434 U.S. at 385-86, 98 S.Ct. at 680-81; Skinner, 316 U.S. at 541, 62 S.Ct. at 1113. Although the Court has also made clear that marriage embraces much more, see Turner, 482 U.S. at 95-96, 107 S.Ct. at 2265, I believe that this central purpose of the marriage statute-this emphasis on child-bearing-provides the kind of rational basis defined in Heller, 509 U.S. at ---- - ----, 113 S.Ct. at 2642-43, permitting limitation of marriage to heterosexual couples. I therefore cannot conclude that appellants are entitled to prevail even if the rational basis standard applies.
E. Summary Judgment for the District Inappropriate Assuming, for the Sake of Argument, that Strict Scrutiny Applies D. Summary Judgment for Appellants Inappropriate Assuming, for the Sake of Argument, That the Rational Basis Test Applies I do not believe this court can resolve the matter in appellants favor by assuming, for the sake of argument, that the rational basis test applies. Although I do not subscribe to the trial courts reasoning, see supra Part VI.A., I also cannot say as a matter of law that the limitation of marriage to heterosexual couples would not survive the traditional rational basis test under the equal protection clause. Under that test, the governments action-in this case, the marriage statute limitation to heterosexual couplesmust be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification. A State, moreover, has no obligation to produce evidence to sustain the rationality of a statutory classification. [A] legislative choice is not subject to courtroom factfinding *337 and may be based on rational speculation unsupported by evidence or empirical data. Heller v. Doe, 509 U.S. 312, ---- - ----, 113 S.Ct. 2637, 2642-43, 125 L.Ed.2d 257 (1993) (citations omitted); see Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 442, 105 S.Ct. 3249, 3255-56, 87 L.Ed.2d 313 (1985); Graham v. Richardson, 403 U.S. 365, 371, 91 S.Ct. 1848, 1851-52, 29 L.Ed.2d 534 (1971); Backman v. United I also conclude that this court cannot resolve the matter in the Districts favor by assuming, for the sake of argument, that discrimination against homosexuals is subject to strict scrutiny; for I cannot conclude, as a matter of law, that the District has a compelling or even a substantial interest in reserving marriage for heterosexual couples. The trial court did not explicate the reasons why it so concluded, other than referring to previously noted reasons. See supra Part VI.A. As I read the courts opinion, those reasons are the same as those cited under the courts rational basis analysis. They are simply too conclusory for equal protection analysis; summary judgment is inappropriate on this issue. The question then remains: whether (1) the rational basis test under equal protection analysis applies, or whether instead (2) a more rigorous scrutiny of the Districts policy excluding same-sex marriage is required because homosexuals comprise a specially protected class. In either event, absent any basis for summary judgment, I conclude the judgment for the District should be reversed and the case remanded for trial.
F. Constitutionally Protected Classes: United States v. Carolene Products Co. An historical approach will be useful to the classification analysis. The idea that the legislative treatment of particular classes of persons requires greater scrutiny 26
under the equal protection clause than other persons receive is traceable to dictum in a footnote to the Supreme Courts opinion in United States v. Carolene Products Co., 304 U.S. 144, 152 n. 4, 58 S.Ct. 778, 783-84 n. 4, 82 L.Ed. 1234 (1938) (upholding federal statute prohibiting interstate shipment of filled milk under rational basis test). In that footnote, Justice Stone indicated that prejudice against discrete and insular minorities may be a special condition ... curtail[ing] the operation of those political processes ordinarily to be relied upon to protect minorities, and [so] may call for a correspondingly more searching judicial inquiry. Id. (emphasis added). Racial discrimination presents the paradigm case under Carolene Products. A particular racial minority, such as African-Americans, is discrete in the sense intended; they are visible in a way that makes them relatively easy for others to identify. Bruce A. Ackerman, Beyond Carolene Products, 98 HARV.L.REV. 713, 729 (1985). African-Americans also are insular, meaning they tend to interact with each other with great frequency in a variety of social contexts, such as neighborhoods, churches, clubs. See id. at 726. African-Americans, moreover, are nationally, if not always locally, in the minority. Finally, the history of civil rights litigation and legislation reflects prejudice which has resulted in invidious *338 discrimination against African-Americans, requiring various court-ordered remedies. The premise underlying Carolene Products call for more searching judicial inquiry into allegedly prejudicial treatment of discrete and insular minorities is that such minorities lack sufficient political power to fend for themselves in a democratic process that should, but fails, to generate [ ] outcomes systematically more favorable to minority interests. Ackerman, supra, 98 HARV.L.REV. at 716. There are problems with the Carolene Products formulation, however. It is underinclusive, as later Supreme Court decisions have made clear. Women, for example, are subject to prejudicial discrimination while comprising a diffuse, not insular group. And, of course, women are not a minority. Furthermore, discrete and insular minorities are not necessarily less able to effectuate their interests through the legislative process than other groups or even disorganized majorities. Racial minorities, in any event, appear to have greater political muscle in most instances than other disadvantaged groups, such as illegitimate children or homosexuals or the poor, all of which tend on the whole to be less identifiable and more diffuse than African-Americans, for example. See id. at 728-31. Finally, the kind of prejudice reflected in the Carolene Products footnote is also underinclusive. There are at
least two kinds of prejudice the Supreme Court has recognized: (1) lack of effective participation in the political process, as emphasized in Carolene Products, and (2) stigma, i.e., a mark of shame that invites demeaning treatment regardless of ones strength at the polls. See, e.g., Plyler, 457 U.S. at 223, 102 S.Ct. at 2398 (stigma of illiteracy affecting undocumented school-age children); Frontiero v. Richardson, 411 U.S. 677, 685, 93 S.Ct. 1764, 1769, 36 L.Ed.2d 583 (1973) (plurality opinion) (gross, stereotypical distinctions between the sexes). As explained below, equal protection analysis has evolved beyond Carolene Products to the point where courts intervene to remedy both kinds of prejudice. This discussion of Carolene Products is intended as background for discussion of how the Supreme Court has developed and applied the idea of intensified scrutiny to a variety of groups not limited to discrete and insular minorities, and how the Court has expanded protectable prejudice from lack of effective participation in the political process to prejudice from stigmatizing and stereotyping-from devaluing-particular groups of human beings.
G. Equal Protection After Carolene Products Co.: Suspect and Quasi-Suspect Classes In the years since Carolene Products, the Supreme Court has identified two kinds of legislative classifications that require intensive equal protection analysis. These commonly have been called, respectively, suspect and quasi-suspect classes (meaning the legislative classifications, not the people in them, are suspect). The first, suspect classification-which the Supreme Court has used to resolve complaints alleging discrimination based on race,35 alienage,36 and national origin37-must receive strict scrutiny from the courts; i.e., for legislative use of the classification to survive, the state must demonstrate that its classification has been precisely tailored to serve a compelling governmental interest. Plyler, 457 U.S. at 217 & n. 15, 102 S.Ct. at 2395 & n. 15; see Cleburne, 473 U.S. at 440, 105 S.Ct. at 3254 (classifications based on race, alienage, or natural origin ... will be sustained only if they are suitably tailored to serve a compelling state interest). The second, quasi-suspect classification-which the Court has used to decide cases alleging discrimination based on gender *339 38 and illegitimacy39 -requires intermediate or heightened scrutiny; i.e., the state must show that legislative use of the classification reflects a reasoned judgment consistent with the ideal of equal protection that further[s] a substantial interest of 27
the State. Plyler, 457 U.S. at 217-18 & n. 16, 102 S.Ct. at 2395 & n. 16; see Cleburne, 473 U.S. at 441, 105 S.Ct. at 3255 (gender classification fails unless it is substantially related to a sufficiently important governmental interest; classification based on illegitimacy will survive if substantially related to a legitimate state interest). The Supreme Court has not yet addressed whether homosexuals, let alone homosexual couples, constitute a suspect or quasi-suspect class. See Rowland v. Mad River Local School Dist., 470 U.S. 1009, 1014, 105 S.Ct. 1373, 1376-77, 84 L.Ed.2d 392 (1985) (Brennan, J. dissenting from denial of certiorari ). Nor has the Court clearly defined the differences between these two classifications requiring, respectively, strict and intermediate (or heightened) scrutiny.40 The Court, however, has focused from case to case on several factors to guide the analysis applied to either classification, although the Court has not addressed every factor in every case. As we shall see, these factors have one thing in common: they reflect various ways of evaluating whether intensive court scrutiny and, perhaps, intervention will be necessary, under the equal protection clause, to help substantially powerless classes of people maintain their dignity and receive important rights in the face of harmful, indeed invidious, discrimination by the state (meaning the popular majority).41 Specifically, the Court will ask: (1) Has the group suffered a history of purposeful discrimination?42 (2) Is the class the object of such deep-seated prejudice that it is often subjected to disabilities based on inaccurate stereotypes that do not truly reflect the *340 members abilities?43 (3) Is the class defined by the presence of an immutable trait that is beyond a class members control and yet bears no relation to the individuals ability to contribute to society?44 (4) Is the group a politically powerless minority?45 Interestingly, the first two of these factors reflect a concern for stigma-for unfair stereotyping. The latter two focus on the ability of the group to avoid the claimed disadvantage through self-help-the classic Carolene Products concern.
ruled-primarily by reference to the Supreme Courts due process decision in Bowers v. Hardwick, supra-that homosexuals do not comprise a suspect or quasi-suspect class. See High Tech Gays v. Defense Industrial Security Clearance Office, 895 F.2d 563, 570-73 (9th Cir.1990); Ben-Shalom v. Marsh, 881 F.2d 454, 564-66 (7th Cir.1989); Woodward v. United States, 871 F.2d 1068, 1076 (Fed.Cir.1989); Padula v. Webster, 261 U.S.App.D.C. 365, 370-72, 822 F.2d 97, 102-04 (1987). In Padula, the United States Court of Appeals for the District of Columbia Circuit affirmed summary judgment for the government in appellants suit claiming the FBI had violated the equal protection clause by refusing to hire appellant because she was a homosexual. The court concluded that homosexuals did not comprise a class deserving intensive scrutiny because the Supreme Court, in Hardwick, had approved state laws criminalizing homosexual conduct, and thereby implicitly had precluded any special protection of homosexuals. If the Court [in Hardwick ] was unwilling to object to state laws that criminalize the behavior that defines the class, it is hardly open to a lower court to conclude that state sponsored discrimination against the class is invidious. Id. at 371, 822 F.2d at 103 (emphasis added); see Dronenburg v. Zech, 239 U.S.App.D.C. 229, 238-39, 741 F.2d 1388, 1397-98 (1984) (private, consensual, homosexual conduct is not constitutionally protected). Padula s premise-that homosexual behavior ... defines the class, id.-appears facially overbroad; homosexuals as a class are defined by reference to sexual orientation, which does not necessarily imply particular *341 conduct, even in marriage. See supra note 33; see generally Cass R. Sunstein, Sexual Orientation and the Constitution: A Note on the Relationship Between Due Process and Equal Protection, 55 U.CHI.L.REV. 1161, 1178 n. 85 (1988). As the D.C. Circuit itself had noted earlier, [Hardwick ] did not reach the difficult issue of whether an agency of the federal government can discriminate against individuals merely because of sexual orientation. Doe v. Casey, 254 U.S.App.D.C. 282, 296, 796 F.2d 1508, 1522 (1986) (CIA employee alleged he was dismissed because of homosexual orientation, and court concluded that if, indeed, CIA action reflected policy of terminating employment of all homosexuals, CIA would have to justify why this policy was necessary in interests of United States).46
H. The Implications, If Any, of Bowers v. Hardwick for Equal Protection Analysis Before considering whether any combination of factors, if satisfied, would require intensive judicial scrutiny of the prohibition against homosexual marriage, it is necessary to note that four federal courts of appeals have
28
It is important to note, however, that in Padula itself, plaintiff-appellant herself rejected the conduct/orientation distinction, premising her constitutional argument on a definition of homosexuals as persons who engage in homosexual conduct. 261 U.S.App.D.C. at 370, 822 F.2d at 102. The court accordingly balked at finding invidious discrimination against a class of persons who, by definition, engaged in conduct that, consistent with the Constitution, could be criminalized. Three other federal circuits followed suit. In Woodward v. United States, the court sustained dismissal of a naval reserve officer from active duty on the ground that he was an admitted homosexual. In rejecting the claims that the Navys action violated Woodwards constitutional right to privacy, as well as his right to equal protection of the laws, the court relied on Hardwick. In holding that homosexuals were not members of a suspect or quasi-suspect class, the court merely asserted the legislative fact-without citing any authority-that [m]embers of recognized suspect or quasi-suspect classes, e.g., blacks or women, exhibit immutable characteristics whereas homosexuality is primarily behavioral in nature. Woodward, 871 F.2d at 1076. Similarly, in Ben-Shalom v. Marsh, the court of appeals, reversing the district court, upheld the Armys refusal to reenlist an admitted lesbian. Relying on Hardwick, the court concluded that, [i]f homosexual conduct may constitutionally be criminalized, then homosexuals do not constitute a suspect or quasi-suspect class entitled to greater than rational basis scrutiny for equal protection purposes. Ben-Shalom, 881 F.2d at 464 (footnote omitted). The court also appeared to be influenced by the fact that it had been asked to overturn an Army regulation, which the court believed would be an unjustified intrusion into military affairs. See id. at 465. The court added that homosexuals are proving that they are not without growing political power. Id. at 466. Finally, in High Tech Gays v. Defense Industrial Security Clearance Office, a class action brought by homosexual applicants for employment by the Defense Department, the court of appeals, reversing the district court, rejected plaintiffs arguments that the Departments refusal to grant security clearances to known or suspected gay or lesbian *342 applicants violated the equal protection clause. The court relied on Hardwick, Ben-Shalom, and Padula and, in particular, asserted as legislative fact-without citing any authority-that [h]omosexuality is not an immutable characteristic; it is behavioral and hence is fundamentally different from traits such as race, gender, or alienage, which define already existing suspect and
quasi-suspect classes. High Tech Gays, 895 F.2d at 573. The court also noted that homosexuals are not without political power. Id. at 574. It is critical to understanding the equal protection issue for us to recognize, very frankly, that even if homosexuals as a class could be defined, at least in part, by reference to homosexual conduct, the federal courts in Padula, Woodward, Ben-Shalom, and High Tech Gays-as elaborated below-all misapplied Hardwick, a due process case in which the Supreme Court expressly noted it was not addressing equal protection issues. See Hardwick, 478 U.S. at 196 n. 8, 106 S.Ct. at 2847 n. 8 (Respondent does not defend the judgment below based on the Ninth Amendment, the Equal Protection Clauses or the Eighth Amendment.). Furthermore, two of these courts, in Woodward and High Tech Gays-apparently recognizing that Hardwick was not dispositive-applied equal protection analysis by merely asserting that homosexuality is not immutable, entirely ignoring a substantial body of scientific research to the contrary. See infra note 49. I have considerable respect for the federal courts that issued these decisions, but this court owes them no deference, and we would abandon our judicial review responsibility if we accepted what, in my view, is critically flawed reasoning. The discussion above in Part V., concluding that same-sex marriage is not a fundamental right under the due process clause, made clear that, to the extent the due process clause protects substantive rights, it characteristically upholds tradition. As Professor Cass R. Sunstein has noted: From its inception, the Due Process Clause has been interpreted largely (though not exclusively) to protect traditional practices against short-run departures. The clause has therefore been associated with a particular conception of judicial review, one that sees the courts as safeguards against novel developments brought about by temporary majorities who are insufficiently sensitive to the claims of history. Sunstein, supra, 55 U.CHI.L.REV. at 1163. Professor Sunstein then stressed that, whereas the due process clause reinforces tradition, the equal protection clause is forward-looking; it is intended to invalidate traditions, however longstanding, that become invidiously discriminatory as times change and disadvantaged groups 29
call attention to their treatment. The Equal Protection Clause ... has been understood as an attempt to protect disadvantaged groups from discriminatory practices, however deeply engrained and longstanding. The Due Process Clause often looks backward; it is highly relevant to the Due Process issue whether an existing or time-honored convention, described at the appropriate level of generality, is violated by the practice under attack. By contrast, the Equal Protection Clause looks forward, serving to invalidate practices that were widespread at the time of its ratification and that were expected to endure. The two clauses therefore operate along different tracks. Id. Professor Sunstein accordingly concluded that, although Hardwick sustained, against due process clause attack, a statute criminalizing consensual sodomy as applied to homosexuals, that ruling does not necessarily foreclose a discrimination claim by homosexuals who contend that the equal protection clause entitles them to the same treatment that heterosexuals receive. See id. at 1163-64; Watkins v. United States Army, 875 F.2d 699, 711, 716-20 (9th Cir.1989) (en banc) (Norris, J., concurring). As applied in this case, Sunsteins analysis suggests that, even though Hardwick says the state can outlaw consensual sodomy between homosexuals without violating the due process clause, this does not necessarily mean the state can deny homosexual couples the right to marry, while *343 allowing heterosexual couples to do so, without violating the equal protection clause.47 In concluding that homosexuals did not have a privacy right to engage in sodomy protected by the due process clause, Hardwick did not decide whether the state constitutionally could deny consenting heterosexuals the same right, see id., 478 U.S. at 188 n. 2, 106 S.Ct. at 2842 n. 2, although it is hard to imagine that the Court would find heterosexual sodomy deeply rooted in this Nations history and tradition, Moore, 431 U.S. at 503, 97 S.Ct. at 1938, and thus constitutionally protected by the due process clause. See Watkins, 875 F.2d at 717-718 (Norris, J., concurring). If the state can deny that right to heterosexuals and homosexuals alike by criminalizing
consensual sodomy by everyone, consistent with due process, based on a tradition of criminal sodomy statutes that have drawn no distinction between homosexual and heterosexual sodomy, see Watkins, 875 F.2d at 718 (Norris, J., concurring), then such conduct provides no basis by itself for denying marriage to homosexual couples without also denying, if not revoking, that right for all heterosexual couples who intend, or are found, to practice consensual sodomy. If, on the other hand, the state cannot ban sodomy for consenting heterosexual couples, consistent with their constitutional right to privacy, then it is not readily apparent why the state could lawfully discriminate against homosexual couples, presumed to be engaging in unlawful consensual sodomy, by denying them a formal status, marriage, that heterosexual couples use to legitimize their own consensual sodomy (among other needs). See id.; C.R. Sunstein, supra, 55 U.CHI.L.REV. at 1169-70. Lurking in this analysis is a subissue: the assumption that the state, despite Hardwick, cannot constitutionally prohibit consensual heterosexual sodomy by a married couple, consistent with the constitutional right to privacy, does not necessarily mean the state cannot constitutionally prohibit sodomy by a consenting unmarried heterosexual couple, just as the state criminalizes fornication. See, e.g., D.C.Code 22-1002 (1989 Repl.) (fornication). On that assumption, the question then becomes: whether same-sex couples (presumed for this purpose to be a constitutionally protected class) can use the equal protection clause to claim a constitutional right to marry-absent a compelling or substantial state interest to the contrary-when they admittedly engage in conduct, consensual sodomy, which the state can lawfully proscribe for a large measure of the heterosexual population, namely all unmarried opposite-sex couples. The answer, I believe, is yes; equal protection is available. In the first place, Hardwick, in dealing only with consensual homosexual sodomy, 478 U.S. at 188 n. 2, 106 S.Ct. at 2842 n. 2, arguably drew the line between homosexual and heterosexual sodomy, not between unmarried and married conduct. But, even if Hardwick left room for constitutionally protecting consensual sodomy in marriage while permitting criminal penalties for consensual sodomy outside *344 marriage, that would only reenforce appellants equal protection argument here. Heterosexual couples could validate their conduct and escape criminal prosecution, while attending to their other physical, emotional, and spiritual needs, by entering a marriage; homosexual couples engaging in the same conduct, and having the same other needs, could not. This difference arguably amounts to invidious discrimination 30
because the state would be withholding from homosexual couples a status that heterosexual couples could elect to legitimize for themselves the very same conduct-to the point of curing otherwise criminal conduct-that homosexual couples would be helpless to legitimize. If marriage can make behavior acceptable-and constitutionally protectable-that would otherwise be unacceptable and unprotectable, this means that marriage can legitimize behavior that may be contextually, but not inherently, unacceptable. If, therefore, marriage (under the assumptions considered here) is the only variable that distinguishes between acceptable and unacceptable consensual sodomy, then a law permitting marriage only between opposite-sex couples would appear to discriminate invidiously against members of the only class of unmarried, unrelated, adult couples-homosexual couples-who are disqualified from legitimizing behavior, and from attending to other important needs, that similarly situated heterosexual couples can lawfully arrange to undertake and satisfy. *** In light of the foregoing analysis, Hardwick s due process-approved ban on consensual homosexual sodomy begs the question presented by the equal protection clause: can the state discriminate against homosexual couples by denying them a status, marriage, solely because of conduct, consensual sodomy, which heterosexual couples either (1) have the constitutional right to engage in, at least when formalized by marriage, or (2) do not have the constitutional right to engage in-and are even vulnerable to criminal prosecution for doing so-but yet, despite doing so, retain the right to marry? Unencumbered by Hardwick, therefore, I proceed with the equal protection inquiry by returning to the classification issue.
suffered a history of purposeful discrimination. See supra note 41. In dissenting from the denial of certiorari in Rowland, 470 U.S. at 1014, 105 S.Ct. at 1377, Justice Brennan remarked that homosexuals have historically been the object of pernicious and sustained hostility, and it is fair to say that discrimination against homosexuals is likely ... to reflect deep-seated prejudice rather than ... rationality. See High Tech Gays, 895 F.2d at 573 (homosexuals have suffered a history of discrimination); Ben-Shalom, 881 F.2d at 465 (Homosexuals have suffered a history of discrimination and still do, though possibly now in less degree.); Equality Foundation of Greater Cincinnati v. Cincinnati, 860 F.Supp. 417, 435 (S.D. Ohio 1994) (gays and lesbians have suffered a history of invidious discrimination based on their sexual orientation). Indeed, [b]eing identified with homosexuality has been the basis of refusals to hire, the ruin of careers, undesirable military discharges, denials of occupational licenses, denials of the right to adopt, to the custody of children and visitation rights, denials of national security clearances and denials of the right to enter the country. Elvia R. Arriola, Sexual Identity and the Constitution: Homosexual Persons as a Discrete and Insular Minority, 10 WOMENS RTS.L.REP. 143, 157 (1988) (footnotes omitted). Judge Norris has summarized: Discrimination against homosexuals has been pervasive in both the public and the *345 private sectors. Legislative bodies have excluded homosexuals from certain jobs and schools, and have prevented homosexual[ ] marriage. In the private sphere, homosexuals continue to face discrimination in jobs, housing and churches. See generally Note, An Argument for the Application of Equal Protection Heightened Scrutiny to Classifications Based on Homosexuality, 57 S.Cal.L.Rev. 797, 824-25 (1984) (documenting the history of discrimination). Moreover, reports of violence against homosexuals have become commonplace in our society. In sum, the discrimination faced by homosexuals is plainly no less pernicious or intense than the discrimination faced by other groups already treated as suspect classes, such as aliens or people of a particular national origin. See, 31
I. The Factors Applicable to Determining Suspect and Quasi-Suspect Class Status Unlike Padula, the three other federal circuit court cases that withheld special recognition for homosexuals under the equal protection clause did not rely exclusively on Hardwick; they also applied the factors the Supreme Court has used to ascertain suspect and quasi-suspect classes. I address these factors separately.
1. History of Purposeful Discrimination The first issue is whether homosexuals as a group have
e.g. Cleburne, 473 U.S. at 440, 105 S.Ct. at 3254.... Watkins, 875 F.2d at 724 (en banc) (Norris, J. concurring). I am satisfied on the basis of these judicial observations that no judge could reasonably conclude as a matter of law, for purposes of summary judgment, that homosexuals have not been the objects of purposeful discrimination.
13 Fam.L.Rep. (BNA) 1512, 1513 (Aug. 25, 1987)). This promiscuity stereotype obviously contributes to undermining serious consideration of legitimating same-sex marriages. Viewing the record in the light most favorable to appellants, as we must, I cannot say as a *346 matter of law that gays and lesbians are not the victims of inaccurate stereotyping.
3. Immutability 2. Deep-Seated Prejudice Causing Inaccurate Stereotypes That Do Not Reflect Class Members Abilities Second, we must consider whether gays and lesbians have been targets for so much prejudice that they are often presented as inaccurate stereotypes that do not truly reflect their abilities.48 See supra note 42. The danger from such stereotyping is not only its unfair assault on feelings but, more significantly, its prejudicial impact on rights and opportunities: inaccurate stereotyping typically withholds recognition of ones capacity to be a productive member of society. See Frontiero, 411 U.S. at 686, 93 S.Ct. at 1770; Equality Foundation of Greater Cincinnati, 860 F.Supp. at 437; see also LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 1616 (2d ed. 1988) (in contrast with a characteristic like mental retardation, homosexuality bears no relation at all to the individuals ability to contribute fully to society); Harris M. Miller, II, Note, An Argument for the Application of Equal Protection Heightened Scrutiny to Classifications Based on Homosexuality, 57 S.CAL.L.REV. 797, 814 (1984). A commonly advanced stereotype of gays and lesbians, for example, suggests that they are sexually promiscuous and do not want to settle down in long-term, committed relationships to raise families. See JUDITH A. BAER, EQUALITY UNDER THE CONSTITUTION: RECLAIMING THE FOURTEENTH AMENDMENT 226-28 (1983); ALLEN P. BELL & MARTIN S. WEINBERG, HOMOSEXUALITIES: A STUDY OF DIVERSITY AMONG MEN AND WOMAN 81 (1978); ALBERT D. KLASSEN, ET AL., SEX AND MORALITY IN THE U.S. 171-73, 179-83 (1989) (many believe that homosexuals are dangerous, wanting to seduce children and colleagues). And yet there is powerful evidence to the contrary: Approximately three million gay men and lesbians in the United States are parents, and between eight and ten million children are raised in gay or lesbian households. Sexual Orientation and the Law, 102 HARV.L.REV., at 1629 (citing ABA Annual Meeting Provides Forum for Family Law Experts, There is a third question: whether homosexuals can be defined, as a class, by an immutable trait that is beyond a class members control. This inquiry is important because a characterization that is not within [a persons] control, such as race, gender, and illegitimacy, and that bears no relation to the individuals ability to participate in and contribute to society, Lucas, 427 U.S. at 505, 96 S.Ct. at 2762, should not readily serve to justify discrimination by the state. See Frontiero, 411 U.S. at 686-87, 93 S.Ct. at 1770-71. The degree to which an individual controls, or cannot avoid, the acquisition of the defining trait, and the relative ease or difficulty with which a trait can be changed, are relevant to whether a classification is suspect or quasi-suspect because this inquiry is one way of asking whether someone, rather than being victimized, has voluntarily joined a persecuted group and thereby invited the discrimination. See Plyler, 457 U.S. at 216-17 n. 14, 102 S.Ct. 2394 n. 14 (legislation imposing special disabilities upon groups disfavored by virtue of circumstances beyond their control suggests the kind of class or caste treatment that the Fourteenth Amendment was designed to abolish (emphasis added)). Although the Supreme Court has focused on immutability in a number of cases, see supra note 44, it has never held that only classes with immutable traits can be deemed suspect. Watkins, 875 F.2d at 725 (Norris, J., concurring); see also Miller, supra, at 813. Indeed, on occasion the Court has referred more broadly, to whether members of the class exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group, Lyng v. Castillo, 477 U.S. 635, 638, 106 S.Ct. 2727, 2729, 91 L.Ed.2d 527 (1986). On the other hand, I am aware of no Supreme Court decision in which a suspect class has not had an immutable characteristic: race, alienage, national origin. See supra notes 35, 36, and 37. Furthermore, the classes specifically deemed quasi-suspect have reflected immutability as well: gender, illegitimacy. See supra 32
notes 38 and 39. In light of this case law and the long-standing public policy reflected in the marriage statute, I would be hard pressed to say that same-sex couples belonged to a suspect or quasi-suspect class for equal protection purposes if sexual orientation were not virtually immutable. If homosexuality has a genetic origin, like race or gender, any court-aware of the history of purposeful discrimination against homosexuals-would have to be sympathetic to arguments that any statute forbidding same-sex marriage should be subject to strict, or at least intermediate, scrutiny, with the result that the District must show a compelling, or at least a substantial, governmental interest in forbidding homosexuals to marry one another. Presumably, the same would hold true if sexual orientation were substantially determined by prenatal hormonal influences. If sexual orientation, however, were entirely a learned, and thus psychological, phenomenon-and were subject to change through a program of predictably successful, and safe, therapy-then the statute limiting marriage to heterosexual couples, reflecting traditional values, arguably would be reviewable under the rational basis test, unless the other factors relevant to determining suspect or quasi-suspect classes, when taken together, would compel more rigorous scrutiny. Cf. Plyler, 457 U.S. at 219 n. 19 & 220, 102 S.Ct. at 2396 n. 19 & 2396 (adult illegal aliens not a suspect class; undocumented status is not an absolutely immutable characteristic since it is the product of conscious, indeed unlawful, action). There is no scientific consensus about the origin of sexual orientation, although much has been learned quite recently. There is substantial literature to the effect that sexual orientation is formed at an early age, has a genetic or hormonal basis, and is highly resistant to change once established.49 One *347 study buttresses its finding that homosexuality is a deep-seated, probably biologically based, virtually unchangeable condition by comparing it with bisexuality, which was found to result, to some extent, from learning and social experiences.50 Still other, mostly older studies suggest that homosexual orientation is probably a result of hormonal predispositions interacting with social and environmental factors.51 Finally, in contrast with most of the recent scientific opinion, some studies suggest that, whatever its source, homosexual orientation is probably culturally determined52 and, perhaps, can be changed through religious conversion or, with varying degrees of success, through sustained personal commitment and intensive shock aversion therapy or other unusual *348 treatments.53 Several courts, citing research before the most recent genetic studies, see supra note 49, have taken a middle
position, concluding that the source of sexual orientation is still inadequately understood and is thought to be a combination of genetic and environmental influences. Opinion of the Justices, 129 N.H. 290, 530 A.2d 21, 25 (1987); see Baker v. Wade, 553 F.Supp. 1121, 1129 (N.D.Tex.1982) (same). Whatever the answers are to questions about the origins of sexual orientation and about the kinds of efforts required to prevent or change homosexual orientation (if possible at all), there is substantial authority to the effect that any effort to change homosexual orientation, once in place, requires traumatic, perhaps even emotionally self-destructive, work toward that end. A 1981 study published by the Alfred C. Kinsey Institute for Sex Research concluded by saying: Homosexuals, in particular, cannot be dismissed as persons who simply refuse to conform. There is no reason to think it would be any easier for homosexual men or women to reverse their sexual orientation than it would be for heterosexual readers to become predominantly or exclusively homosexual. ALAN P. BELL, ET AL., SEXUAL PREFERENCE: ITS DEVELOPMENT IN MEN AND WOMEN 222 (1981). Plainly, the very idea of equal protection of the laws stands squarely in the way of any argument that a gay or lesbian is obliged to make what could be an emotionally destructive effort to change sexual orientation rather than receiving constitutional protection of his or her sexual persona as is. See Watkins, 875 F.2d at 725-26 (Norris, J., concurring).54 It is interesting to note that a federal district court recently has had a full-blown evidentiary hearing on the nature and causes of homosexuality. As a result, the court declared homosexuals and bisexuals a quasi-suspect class and concluded, on the basis of substantial expert testimony, that homo-, hetero-, and bisexual orientation is a characteristic beyond the control of the individual. Equality Foundation of Greater Cincinnati, 860 F.Supp. at 437. More specifically, said the court, sexual orientation is set in at a *349 very early age-3 to 5 years-and is not only involuntary, but is unamenable to change. Id. at 426. At the very least, therefore, I cannot say as a matter of law that homosexuality is not immutable, as that concept is to be understood in equal protection analysis. See supra notes 49, 50, and 53.55
33
4. Political Powerlessness Finally, there is the question drawn directly from Carolene Products: whether gays and lesbians are a politically powerless minority. See supra note 45. This issue, like immutability, focuses on the power of the putative suspect or quasi-suspect class to avoid discrimination without help of the court. See Rodriguez, 411 U.S. at 28, 93 S.Ct. at 1294 (whether class is relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process). Political power, however, is measured not only by the extent to which a minority group, for example, is represented in legislative bodies, see Frontiero, 411 U.S. at 686 n. 17, 93 S.Ct. at 1770 n. 17, but also, more subtly, by the extent to which deep-seated prejudice prevents the groups full participation in the political process, see Plyler, 457 U.S. at 216-17 n. 14, 102 S.Ct. at 2394 n. 14. One writer indicated almost fifteen years ago that the gay rights movement is gaining strength in certain parts of the country, and its increasing momentum will likely mobilize the homosexual vote. Homosexuals Right to Marry, 128 U.PA.L.REV. at 204. This writer also noted that in areas with large gay populations, avowed homosexuals are beginning to run for public office, and some have even been victorious in city elections. Id. The conclusion, nonetheless, is that homosexuals are still relatively powerless as a political group. Id.; see generally Kevin A. Zambrowicz, Comment, To Love And Honor All The Days Of Your Life: A Constitutional Right to Same-Sex Marriage, 43 CATH.U.L.REV. 907, 938-39 (1994). Measuring the political power of gays and lesbians is further complicated because the stigma of homosexuality has caused many to conceal their difference and thus to hide part of their identities from the rest of society. BAER, EQUALITY UNDER THE CONSTITUTION at 226. Prejudice has prevented some homosexuals from coming out of the closet and joining gay rights organizations that can increase their political power. One commentator summarized: Prejudice effectively silences homosexuals, and renders them unable to counter and remedy invidious government discrimination caused by that prejudice. Public officials sympathetic to the plight of homosexuals, or themselves homosexual, are also silenced by fear of damage to their political
futures. John C. Hayes, The Tradition of Prejudice Versus the Principle of Equality: Homosexuals and Heightened Equal Protection Scrutiny after Bowers v. Hardwick, 31 B.C.L.REV. 375, 461 (1990) (footnote omitted). Professor Bruce A. Ackerman has addressed the relative political powerlessness of homosexuals when compared with Carolene *350 Products most protected discrete and insular minority: [C]ompare the problem faced by black political organizers with the one confronting organizers of the homosexual community. As a member of an anonymous group, each homosexual can seek to minimize the personal harm due to prejudice by keeping his or her sexual preference a tightly held secret. Although this is hardly a fully satisfactory response, secrecy does enable homosexuals to exit from prejudice in a way that blacks cannot. This means that a homosexual group must confront an organizational problem that does not arise for its black counterpart: somehow the group must induce each anonymous homosexual to reveal his or her sexual preference to the larger public and to bear the private costs this public declaration may involve. Although some, perhaps many, homosexuals may be willing to pay this price, the fact that each must individually choose to pay it means that this anonymous group is less likely to be politically efficacious than is an otherwise comparable but discrete minority. For, by definition, discrete groups do not have to convince their constituents to come out of the closet before they can engage in effective political activity. Ackerman, supra, 98 HARV.L.REV. at 730-31. The political power of gays and lesbians is the one relevant factor the trial court did briefly examine: Of perhaps equal significance to this Court in reaching a similar finding of no suspect class or quasi-suspect class is the reality that homosexuals today are not so lacking in political power as to warrant enhanced constitutional protection. Witness, for instance, the recent passage by the City Council and signing by the Mayor of the Domestic Partnership Bill. Gays and lesbians are, in the 34
1990s, a political force that any elective officeholder may ignore only at his or her peril. Since the trial court issued its opinion, however, the United States House of Representatives effectively vetoed the domestic partnership legislation, codified in D.C.Code 36-1401 to -1408 (1993 Repl.), by preventing the District from spending any money to implement it. See D.C. Supplemental Appropriations and Rescissions Act, Pub.L. No. 102-382, 106 Stat. 1422, 1422 (1992); Kent Jenkins, Jr., House Votes Referendum on D.C. Death Penalty; Lawmakers Gut Citys Domestic Partners Law, WASHINGTON POST, Sept. 25, 1992, at A1. District Delegate Eleanor Holmes Norton was quoted as saying in response: The scare word here was homosexual marriages. Several members [of Congress] told me they saw 30-second commercials coming saying they supported homosexual marriages. The closer we get to an election, the worse the fortunes of any controversial legislation.
730-31. Furthermore, for purposes of evaluating constitutional norms, the focus on political power, or powerlessness, has to be national, not local, lest constitutional rights vary from city to city. Two recent decisions in other jurisdictions attest to the fact that a voter majority will enact state constitutional and city charter amendments in efforts to preclude adoption of legislation to protect gays and lesbians against discrimination on the basis of their sexual orientation. See Equality Foundation of Greater Cincinnati, supra (city charter amendment); Evans v. Romer, 882 P.2d 1335 (Colo.1994) (en banc) (Evans II ) (state constitutional amendment); Evans v. Romer, 854 P.2d 1270 (Colo.1993) (en banc) (Evans I ) (same). Accordingly, in light of such developments, including congressional action negating domestic partnership legislation to benefit same-sex couples (and others) in this jurisdiction, see supra note 57, I cannot say the political power of gays and lesbians locally or nationally is strong enough for me to conclude that the trial court was correct as a matter of law in ruling that gays and lesbians, as a class, have the kind of political power that conclusively cuts against their characterization as a suspect or quasi-suspect class. See Equality Foundation of Greater Cincinnati, 860 F.Supp. at 437-39.
Id. There can be no question that the political power of gays and lesbians has grown over the years in this community and elsewhere. Locally, as noted earlier in this opinion, the gay community in 1975 had the support of Councilmember Dixon, who sponsored a bill for same-sex marriage legislation that, while eventually withdrawn, received a serious and fair hearing. And, as the trial court noted, the Council adopted and the Mayor signed domestic partnership legislation,56 although Congress effectively killed it.57 Two federal courts, moreover, in denying special scrutiny for homosexuals, noted their increasing political power. See Ben-Shalom, 881 F.2d at 466 (In these times homosexuals are proving that they are not without growing political power.); High Tech Gays, 895 F.2d at 574 ([L]egislatures have addressed and continue to address the discrimination suffered by homosexuals on account of their sexual orientation *351 through the passage of anti-discrimination legislation.). For perspective, however, as Professor Ackerman has pointed out, homosexuals-because of their tendency, overall, toward anonymity and diffusion, rather than discreetness and insularity-tend to have considerably less political power than African-Americans, a protected racial minority. See Ackerman, supra, 98 HARV.L.REV. at
J. Whether Homosexuals Comprise a Suspect or Quasi-Suspect Class 1. Three Easily Applied Factors Comes now, finally, the dispositive question: on the basis of the non-record sources supplied by the parties and augmented by this courts own research, are we in a position to decide-by applying constitutional norms to legislative facts-whether homosexuals are a suspect or quasi-suspect class entitled to strict or intermediate scrutiny of the marriage statute that allegedly discriminates against them, in violation of the equal protection clause? As discussed above, with respect to the four relevant factors, there is really no dispute about the first two: homosexuals have suffered a history of purposeful discrimination, and they have been the object of such deep-seated prejudice that they are often subjected to disabilities based on inaccurate stereotypes that do not truly reflect their abilities. I am also satisfied that a hearing with live testimony would add little, if anything, to evaluation of the fourth factor. At least when compared with racial minorities (in particular, African-Americans) 35
and women-two groups constitutionally entitled to intensified scrutiny of alleged discrimination against them-I can say to a virtual certainty that homosexuals evidence no greater political power and would appear, on balance, to evidence less. I doubt a court will learn more from a hearing on this factor than it can from noting the interplay of political forces, documented in the sources cited in this opinion, concerning political advocacy of so-called gay rights. With this said, I note that a federal district court has found testimonial evidence on the political power issue useful, concluding, after the hearing, that gays, lesbians and bi-sexuals do not enjoy that type of legislative success, political representation, or political alliances building capability necessary to be considered a politically powerful group. Equality Foundation of Greater Cincinnati, 860 F.Supp. at 439.
Equality Foundation of Greater Cincinnati, 860 F.Supp at 426. See also Sexual Orientation and the Law, 102 HARV.L.REV. at 1567-68; supra notes 49, 50, and 53. Virtually all the materials I have reviewed tend to show that, at the very least, short of undergoing intensive, prolonged, and traumatic (usually shock) therapy (or religious conversion or commitment that cannot be legally compelled), homosexuals cannot rid themselves of their sexual orientation-and there is no guarantee, in any event, that such therapy will be successful. See supra note 53. In fact, there is plenty of evidence it will not be. See Richard Green, The Immutability of (Homo)Sexual Orientation: Behavioral Science Implications for a Constitutional (Legal) Analysis, 16 J. PSYCHIATRY & LAW 537, 568-69 (1989). Under these circumstances, I cannot say as a matter of law that homosexuality is not as immutable as race or gender for purposes of equal protection analysis, for I am not willing to say that traumatic, possibly emotionally destructive self-help, rather than constitutional protection, is the price homosexuals must pay (assuming such self-help would be effective, which I strongly doubt) to avoid pernicious discrimination. Indeed, the increasing use of gene therapy and drugs to manipulate health and human behavior suggests the quite scary spectre of enforcing a public policy for curing homosexuals-an Orwellian road not to be traveled.58
2. Immutability This brings us back to the third factor: immutability. Clearly, this factor is especially critical here because, unlike other groups comprising suspect or quasi-suspect classes to date, there is a serious division of opinion as to whether homosexuality is an immutable trait. Thus, there is a serious question whether homosexuals can escape from that orientation as a matter of will, thereby avoiding the scorn and discrimination that serves as the basis for an equal protection claim. *352 Some homosexuals may contend that immutability simply should not be an issue, i.e., that even if sexual orientation is significantly a matter of choice, not genetic dictation, they are entitled to substantial constitutional protection against discrimination directed at their preference. Even if we assume, solely for the sake of argument, that they are correct about what would be fair under that free-choice premise, mere fairness does not determine equal protection analysis; immutability is a critical factor, for good reason. Were it not, all kinds of groups with all sorts of preferences would demand special protection for behaviors that run counter to legitimate mores of the public-at-large. The Constitution does not afford special treatment for whims. So what can be said about immutability here? From the sources consulted I can say, with confidence, that homosexuality is not a matter of whim; it falls within a range from biological (genetic and/or hormonal) to psychological predisposition that is very difficult, if not impossible, to reverse. Indeed, the federal district court that has taken extensive expert testimony on the subject, as indicated earlier, has concluded that homosexuality is not only involuntary, but is unamenable to change.
3. The Prevention/Immutability Distinction On the other hand, the source and nature of homosexuality, while much better understood than even a few years ago, see supra notes 49 through 53, are still largely unknown; much is yet to be learned. For example, although research now may show that homosexuality is virtually immutable in the sense of being very difficult, if not impossible, to reverse once in place, there is a different, indeed threshold question that may be less easy to answer on the basis of what is known today: can homosexuality be prevented from happening? At some point early in a childs development, is the child at a juncture where sexual orientation can be affected, if not determined, by various environmental influences, including lifestyle examples *353 (such as marriage) the child can observe and eventually choose to copy? This possible distinction between preventing homosexual orientation, on the one hand, and recognizing it is immutable once in place, on the other-Ill call it a prevention/immutability distinction-may or may not reflect a meaningful scientific distinction; the fact is, some courts have found it so. For example, the Supreme 36
Court of New Hampshire asserted, without citation or analysis, that [f]or purposes of federal equal protection analysis, homosexuals do not constitute a suspect class, nor are they within the ambit of the so-called middle tier level of heightened scrutiny.... Opinion of the Justices, 530 A.2d at 24. The court then applied the rational basis test to conclude that, for constitutional purposes, legislation barring homosexuals from adoption or foster parenting had a legitimate government purpose of providing appropriate role models [for children]. Id. at 24, 25. The court explained: Given the reasonable possibility of environmental [as well as genetic] influences, we believe that the legislature can rationally act on the theory that a role model can influence the childs developing sexual identity. Id. at 25. (Interestingly, the court limited its analysis to the parent-child or other familial context, id.; the court declined to find a rational basis for excluding homosexuals from operating day care centers, see id.) Furthermore, studies showing that bisexuality may substantially reflect a learned experience, whereas exclusive homosexuality tends to reflect a biological beginning, may be relevant here. See supra note 50. These studies at least suggest the possibility that public policies which can be seen as positively endorsing homosexuality, in contrast with policies more clearly limited simply to forbidding discrimination against homosexuals, may have some bearing on how free an impressionable youth may feel to engage in homosexual experiences, if not to assume that orientation. It is important to stress, however, that there is powerful evidence that so-called role models do not influence sexual orientation. Research that is becoming significant in cases concerning efforts of same-sex couples to adopt children indicates there is little ground for concern that children might become homosexual if raised in a lesbian or gay household. Joseph Harry, Gay, Male and Lesbian Relationships in CONTEMPORARY FAMILIES AND ALTERNATIVE LIFESTYLES 216, 229 (Eleanor D. Macklin & Roger H. Rubin, eds., 1983). According to one comprehensive report, every study on the subject has revealed that the incidence of same-sex orientation among the children of gays and lesbians occurs as randomly and in the same proportion as it does among children in the general population; as they grow up, children adopt sexual orientations independently from their parents. Steve Susoeff, Comment, Assessing Childrens Best Interests When a Parent Is Gay or Lesbian: Toward a Rational Custody Standard, 32 U.C.L.A.L.REV. 852, 882 (1985).59 *354 For example, in Adoption of Tammy, 416 Mass. 205, 619 N.E.2d 315 (1993), the Supreme Judicial Court of
Massachusetts held that the Massachusetts adoption statute did not preclude same-sex cohabitants-one of whom was the natural mother of a child fathered through artificial insemination by the other cohabitants biological cousin-from jointly adopting the child, and that adoption was in the childs best interest. The court noted that a Harvard Medical School clinical professor of psychiatry, who had conducted a clinical assessment, reviewed and referenced literature on child psychiatry and child psychology which supports the conclusion that children raised by lesbian parents develop normally. Id. 419 N.E.2d at 317. See also Adoption of B.L.V.D. and E.L.V.B., 160 Vt. 368, 628 A.2d 1271 (1993) (Vermont law permits adoption of child by same-sex couple, one of whom was natural mother impregnated by anonymous sperm donor). Considerable research focused on the adoption context, therefore, tends to be useful for contradicting arguments that availability of same-sex marriages, any more than same-sex adoptions, would effectively invite election of a homosexual lifestyle. Furthermore, there is revealing expert testimony in two lawsuits brought to enjoin voter-enacted constitutional or city charter amendments to bar legislation that would preclude discrimination on the basis of sexual orientation. In the Cincinnati case, the federal district judge found, among other things, on the basis of expert testimony, that children raised by gay and lesbian parents are no more likely to be gay or lesbian than those children raised by heterosexuals, that [t]here is no connection between homosexuality and pedophilia, and that [h]omosexuality is not indicative of a tendency towards child molestation. Equality Foundation of Greater Cincinnati, 860 F.Supp. at 426. In the Colorado case, the state Supreme Court affirmed the trial courts entry of a permanent injunction barring enforcement of a state constitutional amendment, concluding there was no compelling state interest that would justify such an interference with the fundamental right of gay men and lesbians to participate equally in the political process. Evans II, 882 P.2d at 1350. The state had asserted, among other things, a compelling interest in allowing the people themselves to establish public social and moral norms-in particular, norms preserv[ing] heterosexual families and heterosexual marriage and ... send[ing] the societal message condemning gay men, lesbians, and bisexuals as immoral. Id. at 1346. The court concluded that, even recognizing the legitimacy of promoting public morals as a governmental interest, the voter-enacted amendment barring antidiscrimination laws protecting homosexuals was not necessary to achieve that purpose. Id. at 1347. The court referred to relevant expert testimony, concluding that the states assertion that gay 37
rights laws will undermine marriages and heterosexual families because married heterosexuals will choose to become homosexual if discrimination against homosexuals is prohibited ... flies in the face of the empirical evidence presented at trial on marriage and divorce rates. Id. Considerable litigation to date, therefore, lends substantial support to the proposition that same-sex marriages would not effectively promote a homosexual lifestyle in others. Inherent in the prevention/immutability discussion are actually two related questions: whether environmental factors influence sexual orientation, and, even if so, whether a marriage statute permitting same-sex marriages would be such an influence. These are two major questions of legislative fact that may become very significant here. One cannot know for sure from all the studies I *355 have cited whether the prevention/immutability distinction has validity or any practical utility. The fact is, though, that fair-minded persons naturally wonder about it. Even if the prevention/immutability distinction does have meaning, however, it would appear to be irrelevant to this appeal; that distinction does not necessarily cut against ruling that homosexuals constitute a specially protected class under the equal protection clause, because, despite possible preventability, there is considerable evidence that homosexuality, once in place, is virtually unchangeable and thus presumably in need of constitutional protection. Seen in this way, the prevention/immutability distinction reinforces, rather than detracts from, a finding that homosexuality is an immutable trait for equal protection purposes. Accordingly, the possibilities (if any) for state action deterring or preventing homosexual orientation would come into play not in suspect or quasi-suspect class analysis but in substantial or compelling state interest analysis-to which I now turn.60
or suspect class. The state, nonetheless, may attempt to demonstrate a substantial, if not compelling, interest in withholding marriage from same-sex couples simply because of a concern that such marriages, if deemed legitimate, could influence the sexual orientation and behavior of children, to the extent choice plays a role. I repeat: the deterrence scenario may-or may not-be scientifically far-fetched; this issue of legislative fact is perhaps the most complex of any presented here. But, if there can be any truth to the deterrence rationale at all, the states interest in preventing same-sex marriages arguably may be substantial enough to deprive same-sex couples of that right, even though not substantial enough to allow discrimination against homosexuals based, for example, on housing or employment. The states interest in deterring homosexual lifestyles, of course, would be premised on the general publics adherence to traditional values favoring heterosexual orientation-majoritarian values which homosexuals question. If, however, at trial no scientifically credible evidence were presented tending to prove that a public policy, such as the present marriage statute, can help deter the advent of homosexual orientation and behavior-and I have seen no such evidence to date-then I do not believe the government would have demonstrated a substantial, let alone compelling, state interest in enforcing traditional heterosexual values, to the substantial prejudice of those who cannot share those values. That is to say, if the government cannot cite actual prejudice to the public majority from a change in the law to allow same-sex marriages, such as a predictable increase in antisocial homosexual behavior, then the public majority will not have a sound basis for claiming a compelling, or even a substantial, state interest in withholding the marriage statute from same-sex couples; a mere feeling of distaste or even revulsion at what someone else is or does, simply because it offends majority values without causing concrete harm, cannot justify inherently discriminatory legislation against members of a constitutionally protected class-as the history of constitutional rulings against racially discriminatory legislation makes clear.61 *356 Suppose, on the other hand, that scientifically credible deterrence evidence were forthcoming at trial, so that either the heterosexual majority or the homosexual minority would be prejudiced in some concrete way, depending on whether the marriage statute was, or was not, available to homosexual couples. See supra note 61. In that case, the ultimate question of whose values should be enforced, framed in terms of what a substantial or compelling state interest really is, would pose the hardest possible question for the court as majority and minority interests resoundingly clash.62 38
K. Whether the District Has a Substantial or Compelling State Interest in Barring Same-Sex Marriage I assume, for the sake of argument, that homosexuals have an irreversible sexual orientation and thus (when all relevant factors are considered) comprise a quasi-suspect
the trial record itself proves unsatisfactory. L. Proposed Disposition: Reversal and Remand for Trial Despite familiarity with a substantial body of scientific literature, from which comes the range of possibilities I have identified, I am not comfortable opining about a subject so elusive, and so controversial, as the nature, causes, preventability, and immutability of homosexuality without benefit of a trial record with the right kind of expert testimony, subject to cross-examination. Such expert testimony would have to include-and this is important-examination and cross-examination about the most probative, up-to-date literature. This court was leery about relying at all, let alone exclusively, on scientific literature to determine whether the EMIT drug testing system met with general acceptance in the scientific community. See Jones, 548 A.2d at 39-47; supra note 22. I am even more leery about relying exclusively on scientific and other literature in this case of constitutional magnitude without benefit of questions germane to the issue of immutability, including the causes of homosexuality, asked of leading experts subject to cross-examination. I have explained earlier, see supra Part IV.C., my doubts about the efficacy of trial court proceedings to ascertain legislative facts, given the likelihood that the parties will use too few truly qualified experts who are familiar with all relevant sources of information and who themselves do not have discernible biases. Thus, I cannot be sanguine about the merits of a remand for legislative fact-finding, as part of the trial, unless the parties arrange for the ideal kind of hearing I have called for. See supra Part IV.C. On the assumption that there would be close to the ideal hearing necessary to address the complex issues presented, I see at least five potential benefits from reversing summary judgment and remanding the case for trial, rather than disposing of the case ourselves at this time on the basis of this courts own legislative fact-finding. First, the court can gain whatever benefit there can be from testimony by truly knowledgeable experts, subject to examination and *357 cross-examination on the most revealing, up-to-date sources of information available about the causes of homosexuality and their effect on the issue of immutability. See Equality Foundation of Greater Cincinnati, supra; Evans II, supra. The non-record sources I already have reviewed, of course, will be available not only for examination at trial but also for this courts scrutiny once again (assuming appeal) in the event Second, there is always the possibility that the fact-finding process at a trial will reveal reasons why the rational basis test, not scrutiny of a higher order, should apply. Based on the sources I have reviewed, however, most of which are cited in this opinion, I cannot say (as the trial court has) that the rational basis test applies as a matter of law, and I am skeptical, to say the least, about the likelihood of that tests surviving further inquiry. See Gay Rights Coalition, 536 A.2d at 36 (lead opinion) (sexual orientation appears to possess most or all of the characteristics that have persuaded the Supreme Court to apply strict or heightened constitutional scrutiny to legislative classifications under the Equal Protection Clause). At the same time, I am not yet comfortable saying-without more detailed, hopefully helpful examination corroborating or challenging my understanding of relevant social and scientific facts-that the traditional test assuredly does not apply. At least a trial will give the government its best opportunity to advocate the rational basis test-an opportunity the government deserves in this complex constitutional case, just as the plaintiffs-appellants deserve the opportunity to demonstrate the contrary. Third, on the assumption that my present, tentative rejection of the rational basis test holds after trial, the anticipated cross-examined expert testimony, when added to existing, non-record sources, may be important to deciding whether homosexuals are a suspect, or instead a quasi-suspect, class entitled to strict or only intermediate (or heightened) scrutiny. The Supreme Court to date has recognized only three suspect classes: race, alienage, and national origin; see supra notes 35, 36, 37, and a plurality of the Court once placed gender in that category, see Frontiero, 411 U.S. at 682, 93 S.Ct. at 1768 (plurality opinion), although gender today, like illegitimacy, receives intermediate scrutiny as a quasi-suspect classification. See supra note 38, 39. Women, of course, do not comprise a minority, and illegitimacy does not reflect the kind of discriminatory stereotyping historically experienced by racial minorities-and by homosexuals. See Mathews, 427 U.S. at 506, 96 S.Ct. at 2762-63. If a trial were to confirm that homosexuality, once in place, is no less immutable than race, or is virtually no less so, then there may be reason, when considering all factors, to consider homosexuals a suspect class. See Watkins, 875 F.2d at 724-28 (Norris, J., concurring) (concluding homosexuals comprise a suspect class); TRIBE, supra, at 1616 (homosexuals in particular seem to satisfy all of the Courts implicit criteria of suspectness); ELY, supra, at 162-64 (Homosexuals for years have been the victims of both first-degree 39
prejudice and subtler forms of exaggerated we-they stereotyping). At this point, however, I am not prepared to make that judgment. Fourth, given the predictable negative public response to a decision that ultimately could require the District to recognize same-sex marriages-absent a compelling, or at least substantial, governmental interest in continuing to ban them-it is important to be sure that the contending parties have every opportunity to make the strongest possible cases, pro and con, observed by all interested persons, so that procedurally there appears to be the maximum legitimacy to court decisions ultimately made. There is the danger, of course, as I have discussed, that the parties will not call truly knowledgeable experts, such as persons who have conducted critical studies, see supra notes 49 through 53, or who are truly informed about all probative studies and are unquestionably qualified to testify about them. But I believe it is important to give the parties the opportunity to do so, to everyones benefit. Ultimately, of course, the reviewing court-beginning with this court (assuming eventual appeal)-would have responsibility for determining whether the trial record added anything useful to what we already know. *358 Finally, even if this court were to conclude at this time that appellants comprise a suspect or quasi-suspect class, we would still have to remand for trial on whether the District can show a compelling, or at least a substantial (or important), governmental interest in denying same-sex marriages. Cf. Evans I, supra (sustaining grant of preliminary injunction and remanding for determination whether voter-enacted constitutional amendment that precluded anti-discrimination legislation protecting homosexual[s], lesbian[s], or bisexual[s]-held to infringe on fundamental right under Equal Protection Clause to participate equally in political process-was supported by compelling state interest and narrowly drawn to achieve that interest in least restrictive manner possible). Interestingly, as we have seen, much of the immutability evidence germane to determining whether homosexuals comprise a suspect or quasi-suspect class is likely to be relevant to resolving whether the government has a compelling or at least a substantial interest in preventing same-sex marriages. See Evans II, 882 P.2d at 1347 (in holding that constitutional amendment precluding antidiscrimination legislation to protect homosexuals did not serve compelling state interest, court concluded that states assertion gay rights laws would undermine marriages by enforcing heterosexuals into gay lifestyles flies in the face of the empirical evidence presented at trial). Consequently, as long as there has to be a trial that deals with evidence about the nature and causes of homosexuality, there is
every reason to benefit from the trial courts initial application of that evidence (in addition to applying the legislative fact data I have compiled) to the threshold question whether homosexuals are entitled to suspect or quasi-suspect class status. As far as I am aware, in virtually all other cases concerning suspect or quasi-suspect classifications, the immutability factor has not been contested-indeed, it has been self-evident. Accordingly, appellate courts, including the Supreme Court, typically have resolved the classification issue with judicial analysis of the relevant factors based exclusively on their own legislative fact-finding. See supra notes 43, 54. I have found one exception in this jurisdiction, however. Twenty years ago in Waldie v. Schlesinger, 166 U.S.App.D.C. 175, 509 F.2d 508, the United States Court of Appeals for the District of Columbia Circuit, confronted by a constitutional challenge to the men only admissions policies of the service academies, reversed the District Courts grant of summary judgment for the government and remanded the cases for a full trial on the merits, including the question whether the rational basis test applied to discrimination against women. [W]e are not nearly as certain as the District Court that the Supreme Court has settled on the rationality standard for testing sex-based equal protection claims. Rather, we think this area of constitutional law is still evolving and is often highly dependent on the facts of each case. Accordingly, a full development of the facts of these cases is essential to any meaningful assessment of appellants claim against the rapidly changing, and variously interpreted, case law. Id. at 177, 509 F.2d at 510. As in Waldie, in Equality Foundation of Greater Cincinnati, and in the Evans litigation in Colorado, a trial court record developing the legislative facts relevant to this case would be helpful here.63 Furthermore, although the immutability issue would be the reason for the remand, I would not limit the parties or the trial court to that issue. All legislative facts applicable to all factors relevant to equal protection analysis would be fit subjects for trial. Accordingly, I would reverse summary judgment for the 40
District and remand the case for trial, at which the court would decide (1) the level of scrutiny constitutionally required and, if strict or intermediate scrutiny were called for, (2) whether the District has demonstrated a compelling or substantial enough governmental interest to justify refusing appellants a marriage license.
*359 VII. POSTSCRIPT: RESPONSE TO MAJORITY ON EQUAL PROTECTION My colleagues in the majority very simply reject appellants equal protection claim either (1) because marriage, as traditionally and statutorily defined, does not discriminate against homosexuals in fact since marriage, conceptually understood, cannot include same-sex couples (Judge TERRY); or (2) because the marriage statute, even if it discriminates against homosexuals in fact, does not discriminate against them as a matter of constitutional law, since the statute does not reflect a discriminatory purpose (Judge STEADMAN). Judge TERRYs response begs the question. Given appellants undisputed proffer that many if not most homosexuals have the same emotional, spiritual, physical, and public-benefit needs that lead heterosexuals to marry, see supra note 33, there is no convincing basis for saying either that these needs do not exist or that, if they do, marriage could not satisfy them-the only reasons I can think of for saying that marriage and homosexuality, by definition, cannot fit together. This analysis is akin to the premise of the trial court opinion the Supreme Court rejected in Loving: that a divine natural order forbids racial intermarriage to the point of making it conceptually unthinkable.64 If homosexuals comprise a suspect or quasi-suspect class, which Judge TERRY does not question, then they cannot lawfully be denied the right to marry on the constitutionally unprecedented ground that this claimed right, by definition, is impossible to confer. See supra note 20. Judge STEADMANs principal argument is also unsound. He essentially rests his position on the incontestable fact that the legislature, when enacting the marriage statute for heterosexual couples, would not have dreamed that anyone might consider it discriminatory legislation against homosexuals. From that premise Judge STEADMAN concludes that the marriage statute cannot be held to reflect the discriminatory purpose essential to denial of equal protection of the laws. Compare Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976) (upholding District of Columbia
qualifying test for metropolitan police officers, neutral on its face but with discriminatory impact on black applicants, since test, having valid objective, did not reflect discriminatory purpose) and Personnel Administrator v. Feeny, 442 U.S. 256, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979) (sustaining Massachusetts veterans preference for state civil service employment against equal protection challenge based on discriminatory impact on female civil service applicants, because there was no purposeful discrimination against women, some of whom were eligible veterans) with Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886) (striking down San Francisco ordinance, neutral on its face, limiting commercial laundries to brick or stone buildings, absent Board of Supervisors permission to use other materials, since ordinance was intended to discriminate against Chinese laundries typically housed in wooden buildings). There are fundamental defects in this analysis. The line of cases that begins with Davis, sustaining statutes and other governmental actions, neutral on their face, for lack of a perceived discriminatory purpose, is inapplicable here for two reasons. First, the governmental actions at issue in those cases did not purport to exclude the affected classes altogether from the benefits sought. In Davis, racial minorities who passed the *360 qualifying test were eligible for appointment as police officers; in Feeny, female war veterans were entitled to the civil service employment preference. In short, the impacts were disproportionate but not exclusionary. In contrast, in the case of homosexuals, marriage is altogether forbidden to same-sex couples. Second, the fact that the legislature, in adopting the marriage statute, did not have homosexuals in mind does not mean the statute lacks a discriminatory purpose; an absolute prohibition, whether explicit or implied, resulting in discrimination in fact, has an inherent discriminatory purpose, even if the legislature did not recognize it. As already indicated, when the Virginia legislature enacted an antimiscegenation statute, it was premised on the belief that couples of different races were inherently incapable of marriage, because the very idea of interracial marriage was an oxymoron-a perceived abomination that violated divine natural law. See Loving, 388 U.S. at 3-7, 87 S.Ct. at 1819-21. Similarly, when railway passenger cars were racially segregated by law, there was no perceived discriminatory purpose; though separate, they were equal. Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256 (1896).65 The Supreme Court came to recognize, however, that as the idea of equality changed, the purposes inherent in once-benign, supposedly nondiscriminatory statutes were seen to change. See Brown, 347 U.S. at 489-95, 74 S.Ct. at 688-92 41
(concluding that [s]eparate educational facilities are inherently unequal); Loving, 388 U.S. at 12, 87 S.Ct. at 1823 (restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause). Accordingly, if, as I believe is ineluctably true, the marriage statute discriminates against homosexuals in fact because they claim the same emotional, spiritual, and physical needs for marriage that heterosexuals have, see supra notes 20 and 33, then a court, in my opinion, cannot legitimately say that the statute-which leaves no room for qualifying homosexual couples-does not reflect a discriminatory purpose. Judge STEADMANs statute of inclusion of opposite-sex couples, post at 122, has become a statute of exclusion of same-sex couples. Judge STEADMAN advances another argument against appellants equal protection claim: because heterosexual couples, but not homosexual couples, have a fundamental right to marry, the state may give separate recognition solely to that institution through a marriage act as here. Post at 125 (footnote omitted). I have pointed out at length, see supra Part VI. H., that fundamental right analysis under the due process clause does not dictate analysis applicable to a suspect or quasi-suspect class under the equal protection clause. Furthermore, I cannot accept my colleagues proposition (necessarily premised on at least a quasi-suspect class assumption) that the relationship between marriage and procreation, childbirth, and child rearing creates an important (if not compelling) governmental interest that *361 justifies-as a matter of law-the statutory limitation of marriage to heterosexual couples, even if the statute were held to be discriminatory. As I have stressed earlier in Part VI. K. of this opinion, any governmental interest that might trump appellants discrimination claim must be a matter for trial, not a matter for summary judgment. That claimed governmental interest has never been elaborated in the trial court or on appeal. Taken together, my colleagues in the majority seem to be saying that, although the equal protection clause may not permit the state to discriminate against homosexuals in some areas, such as employment, any constitutional concern evaporates when marriage becomes the issue simply because marriage is different: it is conceptually limited by its traditional definition to opposite-sex couples-a limitation that inherently, therefore, cannot reflect discrimination against homosexual couples in fact or purpose. This definitional defense against an equal protection claim has failed before when substantial human rights, asserted in connection with a claimed right to marriage, have been at issue. See Loving. It should fail
here. See generally James Trosino, American Wedding: Same-Sex Marriage and the Miscegenation Analogy, 73 B.U.L.REV. 93 (1993). In concluding its opinion in Griswold v. Connecticut, 381 U.S. 479, 486, 85 S.Ct. 1678, 1682, 14 L.Ed.2d 510 (1965), in another context, the Supreme Court stressed: We deal with a right of privacy older than the Bill of Rights-older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions. I see no basis on this record, or in law, for concluding summarily that plaintiffs-appellants, a homosexual couple, cannot lay equal claim to such a noble relationship, sustained by law. TERRY, Associate Judge: I join in parts I-III of Judge Ferrens opinion. I also join in Judge Steadmans opinion. Accordingly, I vote to affirm the judgment of the trial court in all respects, although not precisely for the reasons stated by the trial court. The outcome of this case, in my view, turns on the definition of marriage. Shakespeare in his 116th Sonnet wrote of the marriage of true minds. In the game of pinochle, the king and queen of the same suit are referred to as a marriage when those cards are held by the same player; if that suit is trump, the combination of king and queen is a royal marriage. But these and similar expressions are only metaphors, figures of speech derived from the literal meaning of the word that serves as the fulcrum of this case. Judge Ferren, in parts II and III of his opinion, cogently demonstrates that the word marriage, when used to denote a legal status, refers only to the mutual relationship between a man and a woman as husband and wife, and therefore that same-sex marriages are legally and factually-i.e., definitionally-impossible.
42
This conclusion necessarily disposes of the equal protection issue that Judge Ferren goes on to discuss in part VI of his opinion. That is, if it is impossible for two persons of the same sex to marry, then surely no court can say that a refusal to allow a same-sex couple to marry could ever be a denial of equal protection. I am willing to assume, for the purposes of this discussion, that homosexuality is an immutable trait; indeed, recent scientific literature strongly suggests that this is so, as Judge Ferren tells us, ante at 346-347 & nn. 49-52. But if two people are incapable of being married because they are members of the same sex and marriage requires two persons of opposite sexes, as Judge Ferren has shown, then I do not see how it makes any difference that the District of Columbia, or any agency of its government, discriminates against these two appellants by refusing to allow them to enter into a legal status which the sameness of their gender prevents them from entering in the first place. Thus Judge Ferrens discussion of adjudicative versus legislative facts in *362 part IV, while fascinating, is ultimately irrelevant to the outcome of this case,1 and the equal protection issue is moot. It seems obvious that the remedy for the dilemma facing these appellants lies exclusively with the legislature. The Council of the District of Columbia can enact some sort of domestic partners law, bestowing on same-sex couples the same rights already enjoyed by married couples, whenever it wants to. But no court can order a legislature to enact a particular statute so as to achieve a result that the court might consider desirable, or to appropriate money for a purpose that the court might deem worthy of being funded. See Zahn v. Board of Public Works, 274 U.S. 325, 328, 47 S.Ct. 594, 594-95, 71 L.Ed. 1074 (1927); Hart v. United States, 118 U.S. 62, 67, 6 S.Ct. 961, 963, 30 L.Ed. 96 (1886); cf. Reeside v. Walker, 52 U.S. (11 How.) 272, 289-290, 13 L.Ed. 693 (1851) (mandamus will not lie against the Secretary of the Treasury to pay a claim when Congress has not appropriated money to pay it). The separation of powers doctrine prohibits such action by a court. Nor can a court alter or expand the definition of marriage, as that term has been understood and accepted for hundreds of years. Thus the Council, and only the Council, can provide Messrs. Dean and Gill with the relief they seek. Having concluded unanimously that it is impossible for two persons of the same sex to marry, this court cannot also conclude that it is-or even may be-a denial of equal protection to refuse to allow such persons to marry. The two conclusions are inherently inconsistent.2 If these appellants cannot enter into a marriage because the very nature of marriage makes it impossible for them to do so, then their quest for a marriage license is a futile act, and
the Districts refusal to issue a license to them is legally and constitutionally meaningless. They are, of course, free to refer to their relationship by whatever name they wish. But it is not a marriage, and calling it a marriage will not make it one. STEADMAN, Associate Judge, concurring: I join Judge FERRENs compelling analysis of appellants several arguments in Parts I., II., III., and V. of his comprehensive opinion. However, in my judgment, the marriage statute must be sustained as well against the challenge under constitutional equal protection, applicable within the District of Columbia through the due process clause of the Fifth Amendment. See Bolling v. Sharpe, 347 U.S. 497, 499-500, 74 S.Ct. 693, 694-95, 98 L.Ed. 884 (1954). My initial difficulty with a postulate of appellants analysis, reflected in Judge FERRENs discussion of equal protection, is its treatment of the marriage statute as the equivalent of a statute expressly addressed to an assertedly suspect class. The marriage statute is simply not the same as, say, a statute prohibiting the employment of homosexuals. Cf. Evans v. Romer, 882 P.2d 1335 (Colo.1994) (holding that Amendment 2, which prohibited the state and municipalities from passing legislation to protect homosexuals, infringed on plaintiffs right to vote in violation of the Equal Protection Clause). Rather, it is a statute of inclusion of opposite-sex couples who may wish to enter a particular legal status recognized by the state. To the extent it is exclusive, it is exclusive evenly of all same-sex couples, who may, for whatever reason, wish to enter that legal *363 status.1 I think it would take a considerable stretch to find, in such circumstances, the requisite purposeful or invidious legislative discrimination addressed to homosexuals. See Personnel Administrator v. Feeney, 442 U.S. 256, 274, 99 S.Ct. 2282, 2293-94, 60 L.Ed.2d 870 (1979) (when a neutral law is challenged as having a disparate impact on women, plaintiffs must show purposeful discrimination); Washington v. Davis, 426 U.S. 229, 239-40, 96 S.Ct. 2040, 2047-48, 48 L.Ed.2d 597 (1976) (plaintiffs who alleged a racially disproportionate impact from governmental action must show invidious discrimination on the part of governmental actors).2 But even assuming that the marriage statute should be analyzed as one of unequal application to homosexuals and assuming further that homosexuals are a quasi-suspect class, as Judge FERREN suggests may be the case,3 I fail to see an unconstitutional transgression of equal protection. As Judge FERREN demonstrates, the right to marry is a fundamental right only in application to 43
opposite-sex couples. While plainly the marriage state involves far more,4 the Supreme Court teaches that at bottom the institution reflects considerations fundamental to the very existence and survival of the [human] race, Skinner, supra, 316 U.S. at 541, 62 S.Ct. at 1113, and bound up with sexual relations, procreation, childbirth and child rearing. Zablocki, supra, 434 U.S. at 386, 98 S.Ct. at 681.5 It seems to me apparent that *364 much the same considerations that elevate opposite-sex marriage to the status of a fundamental right constitute the requisite substantial relationship to an important governmental interest6 of a statute designed to recognize and promote that fundamental right. Surely, if only opposite-sex marriage is a fundamental right, the state may give separate recognition solely to that institution Footnotes
1
through a marriage act as here.7 These and like considerations have led, so far as I am aware, every appellate court in the land presented with the issue to reject federal constitutional challenges to opposite-sex marriage statutes.8 I am led to the same conclusion.
Parallel Citations 63 USLW 2449
Appellants have not renewed on appeal their argument that the trial courts (and possibly the Councils) reliance on the Bible to understand the meaning of marriage violated appellants First Amendment rights. The marriage statute enacted and codified in 1901 was a new statute derived from a 1777 Maryland statute entitled An Act Concerning Marriages, 1777 Md.Laws, ch. 12, in 1 CLEMENT DORSEY, THE GENERAL PUBLIC STATUTORY LAW AND PUBLIC LOCAL LAW OF THE STATE OF MARYLAND, at 130 (1840) (hereafter DORSEY). See D.C.Code Encyclopedia 30-101 (1968). The original, 1977 Maryland statute had been amended by An Act to Repeal Part of the Act Concerning Marriages, 1785 Md.Laws, ch. 35, in 1 DORSEY, at 196, and by An Act to Repeal So Much of the Act Concerning Marriages as is Therein Mentioned, 1790 Md.Laws, ch. 20, in 1 DORSEY, at 256. After the District of Columbia was created in 1801, Maryland law continued to apply to the part of the District ceded by Maryland. See D.C.Code vol. 1 at 46 (1991). In 1866, Congress enacted An Act Legalizing Marriages and for Other Purposes in the District of Columbia, 14 Stat. 236, ch. 240 (1866), which permitted [c]ertain colored persons in the District of Columbia, living together as man and wife, ... to be deemed husband and wife. In 1870, An Act to Further Amend the Law of the District of Columbia in Relation to Judicial Proceedings, and Preserve Records of Marriages Therein, 16 Stat. 146, ch. 115 (1870), was enacted primarily to set forth the form and record of marriage licenses. Provisions requiring the clerk of the court to examine and ascertain the full names, ages, color, prior marital status, and relationship of the parties desiring to marry prior to issuing a marriage license were added in 1896 in An Act To Regulate Marriages in the District of Columbia, 29 Stat. 118, ch. 177 (1896-97). Congress enacted the Districts first divorce statute in 1860 entitled An Act to Authorize Divorces in the District of Columbia, and for Other Purposes, 12 Stat. 59, ch. 158 (1860). This act was the precursor of the divorce statute enacted in 1901. See D.C.Code Encyclopedia 16-901 (1966). An Act Concerning Divorces in the District of Columbia, 16 Stat. 147, ch. 116 (1870), added habitual drunkenness, cruelty, and willful desertion to the grounds for divorce. From time to time between 1901 and 1977, the marriage statute was amended in minor respects; however, none of the changes has significance for the present case. See, e.g., 32 Stat. 543, ch. 1329 (1902) (added age of consent requirement for males and females to 30-103, Marriages Void from Date of Decree; corrected misspelling in 30-104); 50 Stat. 626, ch. 596 (1937) (increased age of consent for males from sixteen to eighteen and for females from fourteen to sixteen); 80 Stat. 264, Pub.L. 89-493, 13(b) (1966) (added sentence to 30-106 to permit deputy court clerks to celebrate marriages); 84 Stat. 570, Pub.L. 91-358, Title I, 155(a) (changed District of Columbia Court of General Sessions to Superior Court of the District of Columbia). Although more significant amendments were made from time to time to the divorce provisions, those changes also are irrelevant to the present case. See e.g., 41 Stat. 567, ch. 153, 983(a) (1920) (added section setting the effective date of an annulment or divorce decree); 75 Stat. 515, Pub.L. 87-246, 3 (1963) (restored wifes right of dower and established a statutory right of dower in the husband); 77 Stat. 560, Pub.L. 88-241, 1 (1963) (defined the term court as used in the chapter; substantively changed residency requirements; changed phraseology and arrangement of several sections). The minor changes made to the marriage and divorce statutes before 1977 focused primarily on arrangement and phraseology. See supra note 4. The Marriage and Divorce Act of 1977, however, made substantive changes in the law. As the Chairperson of the Committee on the Judiciary and Criminal Law reported to members of the Council of the District of Columbia: In particular, the subject bill would reduce the residency requirement for eligibility to file a divorce or annulment action from the current standard of one year to six months. The bill would add to the D.C.Code a new no fault ground for obtaining a
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Dean v. District of Columbia, 653 A.2d 307 (1995) 63 USLW 2449 divorce or legal separation, namely, if both parties to the marriage have lived separate and apart without cohabitation for a period of one year next proceeding the commencement of the action. ... [T]he bill [also] modifies the current fault grounds for divorce by removing desertion for one year and imprisonment for a felony conviction as grounds. COMM. ON THE JUDICIARY AND CRIM. LAW, REPORT ON BILL NO. 1-89, THE DISTRICT OF COLUMBIA MARRIAGE AND DIVORCE ACT 5-6 (June 24, 1976).
6
Original Bill No. 1-89 generated substantial debate. Gay rights groups agreed that the proposed gender-neutral language of the statute authorized same-sex marriages; however, they asked the Council to amend the bill to provide expressly for same-sex marriages. In his testimony before the Committee on the Judiciary on July 7, 1975, Cade Ware, President of the Gay Activists Alliance of Washington, D.C. proposed that 30-101 be amended to read: A marriage between two persons, regardless of race, creed, sex or religious affiliation, licensed, solemnized, and registered as provided in this act is valid in the District of Columbia. The District of Columbia Uniform Marriage and Dissolution Act, 1975: Hearing on Bill 1-89 Before the District of Columbia Council Comm. on Judiciary and Criminal Law, July 7, 1975, at 8 (testimony of Cade Ware, President of the Gay Activists Alliance of Washington, D.C.). Groups on the other side of the debate were concerned with the bills failure to prohibit same-sex unions expressly. The Catholic Archdiocese of Washington submitted a letter to the Judiciary Committee stating that such a sweeping change in the law-the implicit authorization of same-sex marriages in proposed 30-101-could not be inferred from the laws failure to prohibit expressly something which has otherwise never been permitted under a marriage statute. The letter nonetheless recommended amending 30-101 to read: A marriage between a man and a woman which is licensed, solemnized and registered as provided in this act is valid in the District of Columbia. Letter from William W. Baum, Archbishop of Washington, to David Clarke, Chairman of the Committee on the Judiciary and Criminal Law, at 8 (Aug. 27, 1975). D.C.Code 30-110 describes the duties of the Clerk to obtain certain information from marriage license applicants. Former D.C.Code 30-116 dealt with slave marriages. We reiterate: the Districts 1901 marriage statute, incorporated into the first D.C.Code, was a new statute that replaced previous legislation, see 31 Stat. at 1189, ch. 1, 1. It was not merely a law carried over from before codification. See supra note 2. Former D.C.Code 30-116 discussing slave marriages traceable to the 1901 Code, used the terms husband and wife; however, the Marriage and Divorce Act of 1977, 1977 D.C.Stat. 119, repealed 30-116. See supra note 8. D.C.Code 30-101, titled Marriages void ab initio-In general, provides: The following marriages are prohibited in the District of Columbia and shall be absolutely void ab initio, without being so decreed, and their nullity may be shown in any collateral proceedings, namely: (1) The marriage of a man with his grandmother, grandfathers wife, wifes grandmother, fathers sister, mothers sister, mother, stepmother, wifes mother, daughter, wifes daughter, sons wife, sister, sons daughter, daughters daughter, sons sons wife, daughters sons wife, wifes sons daughter, wifes daughters daughter, brothers daughter, sisters daughter; (2) The marriage of a woman with her grandfather, grandmothers husband, husbands grandfather, fathers brother, mothers brother, father, stepfather, husbands father, son, husbands son, daughters husband, brother, sons son, daughters son, sons daughters husband, daughters daughters husband, husbands sons son, husbands daughters son, brothers son, sisters son; (3) The marriage of any persons either of whom has been previously married and whose previous marriage has not been terminated by death or a decree of divorce. This provision was adopted in 1901 and was derived from the 1777 Maryland statute, 1 DORSEY at 130-31 1. See supra note 2. Although the Maryland provision was worded differently and provided that one who violated the statute must pay 500 pounds or be banished from the state forever, the relationships forbidden in the 1777 statute were exactly the same-and even were listed in the same order-as in the current D.C. statute. Two provisions in other chapters of the Domestic Relations title-Property Rights and Uniform Support-also use the terms husband and wife. See D.C.Code 30-201 (section does not affect ownership of property held by husband and wife as tenants by the entireties), -318 (husband and wife shall be competent witnesses). Section 30-201 was codified in 1901, An Act to Establish a Code of Law for the District of Columbia, 31 Stat. 1189, ch. 854 (1901). Section 30-318 was not enacted until 1957, An Act To improve and extend, through reciprocal legislation, the enforcement of duties of support in the District of Columbia, 71 Stat. 288, Pub.L. 85-94 18 (July 10, 1957).
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Although the Supreme Court of Hawaii, in Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44 (1993), recently reversed a trial court decision barring same-sex marriages and remanded for further proceedings, the courts opinion was premised on state constitutional grounds, not on statutory interpretation applying an evolving definition of marriage. The Anti-Sex Discriminatory Language Act, as such, does not appear in the D.C.Code. Rather, the Act amended dozens of existing provisions of the D.C.Code to provide legal equality for men and women. COMM. ON THE JUDICIARY AND CRIM. LAW, REPORT ON BILL NO. 1-36, THE ANTI-SEX DISCRIMINATORY LANGUAGE ACT, at 3 (May 20, 1976). D.C.Code 30-111 explains who can give consent to marry for persons under age 18. A three-year set-back permits life insurance companies to calculate premiums for women according to an age not more than three years younger than their actual age, due to the fact that womens life expectancies are longer than mens. NOW, 531 A.2d at 277. In support of their motion for summary judgment, appellants submitted Plaintiffs Statement of Material Facts not in Dispute (Dean and Gill are a gay male couple who did not suffer from any of the prohibitions of marriage enumerated in the Marriage Act); an Affidavit of Craig Robert Dean; an Affidavit of Patrick Gerard Gill; an Affidavit of Councilmember David Clark regarding his sponsorship of the Human Rights Act; Testimony of Dr. Franklin E. Kameny, President of the Mattachine Society, at a Council Hearing discussing the Marriage and Divorce Act of 1977; Councilmember Arrington Dixons Memorandum to the Judiciary Committee regarding the Marriage and Divorce Act of 1977; a Memorandum on the History of Same-sex Marriage; a Post-Hearing Submission on the Passage of the Amendments to the District of Columbia Marriage and Divorce Act; and a Memorandum on the District of Columbia Domestic Partnership Act. The legislative facts terminology was introduced by Professor Kenneth Culp Davis in An Approach to Problems of Evidence in the Administrative Process, 55 HARV.L.REV. 364, 404-407 (1942). Professor Donald L. Horowitz suggests using the terms historical facts and social facts in lieu of adjudicative facts and legislative facts, respectively, because the latter terms inaccurately imply a strict division of labor between courts and legislatures. See HOROWITZ, supra, at 45. See, e.g., D.C.Code 1-622.7 (1992) (public employee health insurance), -623.7 (public employee life insurance), -624.10 (public employee disability insurance), -627.4(6)(E) (public employee retirement benefits); 2-1502 (1994) (power to make anatomical gifts), -1507(a) (power to dispose of body after making anatomical gifts), -2813 (power to claim human remains); 5-825(b) (1994) (priority in leasing real property for business purposes after displacement of business by District of Columbia); 6-1967 (1989) (ability to give informed consent in medical emergency), -2023(a) (ability to request information regarding a mental health client); 10-225(f) (1989) (succession to deceaseds retail distributor marketing agreement); 14-309 (1989) (right to claim clergy privilege); 15-503(d) (bankruptcy proceeding rights); 16-308 (1989) (waiver of investigation in adoption of spouses child), -577 (wage garnishment limits not to apply to spousal support obligations), -910 (power of court to dispose of property on divorce), -911 (alimony pendente lite), -913 (alimony), -916 (maintenance), -1005(b) (right to claim marital privilege to prevent spouses testimony in domestic relations case from being used in criminal proceedings), -2306 (right to be served with neglect petition for spouse under 18 years of age), -2312(b) (right to notice of minor spouses hearing for detention or shelter care), -2701 (right to maintain wrongful death action and recover damages), -2921 to -2925 (dower rights); 19-101 to -115 (1989) (rights of survivorship), -301 to -304 (rights of intestacy); 20-303(a) (1989) (priority in appointment as personal representative in probate case); 21-107 (1989) (preference in appointment as guardian of spouse under 14 years of age), -301(11) (spouse included in definition of member of minors family in section dealing with transfer of mentally ill minor), -511 (power to hospitalize mentally ill spouse who is a minor), -522 (right to notice of minor spouses admission to hospital), -541 (right to petition for hospitalization), -546 (right to request mental health examination), -564 (right to notice of incompetence), -565 (right to statement regarding procedures of release and adjudication for incapacitated spouse); 21-902(c) (1989) (right to notice of apprehension of mentally ill spouse), -2042(a) (right to notice of guardianship proceeding), -2043(c)(1) (priority in serving as guardian for incapacitated spouse), -2055 (court powers to be exercised for benefit of mentally ill persons immediate family), -2057 (preference in serving as conservator), -2210 (priority in giving substituted consent to health care in absence of durable power of attorney); 30-507(c)(7) (1993) (enforceability of spousal support order when part of child support obligation); 35-507(b)(3) (1993) (life insurance benefits), -514(a)(7)(E) (group insurance policy benefits); 36-308(4) (1993) (workers compensation disability payments); 40-102(e)(4) (1990) (joint ownership of motor vehicles), -703(j)(1) (tax exemption on gift to one spouse of motor vehicle owned by the other spouse); 46-101(19) (1990) (rights of dependents to unemployment compensation); 47-845 (1990) (tax deferral to continue on conveyance of real property to spouse), -1801.4(26) (difference in standard tax deduction for single and married persons), -1805.1(e) (right to file joint tax returns to qualify for tax benefits), -1805.2(2) (status as fiduciary for filing joint tax returns), -1806.2(b) (spousal tax exemption for non-earning spouse), -1806.2(e) (additional spousal exemption for non-earning spouse over 65 years of age). There are those, including my colleague Judge TERRY, who argue that denial of a marriage license to a same-sex couple is not discriminatory because, as demonstrated in Parts II. and III. above, marriage, by definition, has been an institution traditionally limited to heterosexual couples-especially so because child-bearing is at the heart of the institution. That argument begs the
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Dean v. District of Columbia, 653 A.2d 307 (1995) 63 USLW 2449 question. Appellants, a same-sex couple, proffer the same psychological and physical needs to marry that heterosexual couples have, see Turner v. Safley, 482 U.S. 78, 95-96, 107 S.Ct. 2254, 2265, 96 L.Ed.2d 64 (1987), and they accordingly proffer that sexual differences should neither affect their right to consummate a marriage in their own way nor automatically withhold the statutory benefits of marriage, including the possibility of having children with the help of surrogates or of adopting abandoned children. This proffer of prejudice from denial of the right to marry makes clear that the marriage statute discriminates in fact against same-sex couples-a claimed impact that is distinguishable from the question whether such discrimination is legal. Put another way, denial of a marriage license to a same-sex couple is discriminatory in fact, whether or not it is invidiously (unconstitutionally) discriminatory at law. I therefore believe this court cannot properly avoid coming to grips with the constitutional issue appellants have posed simply by defining that issue away as though the prejudicial fact of the alleged discrimination does not exist. Recall (more on this later) that in Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967), the Supreme Court struck down Virginias antimiscegenation law against a defense that marriage was intrinsically a same-race institution and thus, as such, was not susceptible to an equal protection challenge. See id. at 3, 7, 87 S.Ct. at 1819, 1821.
21
Professor Sanford H. Kadish, in Methodology and Criteria in Due Process Adjudication-A Survey and Criticism, 66 YALE L.J. 319, 360 (1957), has summarized the approach: To some degree data of this kind [social, political, economic and scientific] has reached the Court through lower court direct testimony; but the principal access to it has been through the device of judicial notice, combined with the Courts independent researches or the presentation of factual data by counsel in the form of the Brandeis brief. (footnotes omitted). Similarly, Professor (later Judge) Jack B. Weinstein, in Judicial Notice and the Duty to Disclose Adverse Information, 51 IOWA L.REV. 807, 822-23 (1951), has addressed consideration of legislative facts in the following way: Information useful to the court in deciding what the rule of law ought to be is supplied in a variety of ways, including the Brandeis brief giving extensive factual background materials. The court acts creatively to make new law either in its interpretation of statutes or in extending prior case doctrine. Its problems in determining what is a sound rule are much like those faced by the legislature. See, e.g., Porter, 618 A.2d at 630-31 (remanding case, on basis of post-trial National Research Council Report, on question whether DNA testing has requisite consensus in scientific community); Jones, 548 A.2d at 39-47 (sustaining validity of EMIT drug testing system on basis of expert testimony in trial record of another D.C. Superior Court case, coupled with judicial decisions from other jurisdictions, leaving open question whether appellate court may ascertain social/scientific facts exclusively by reference to scientific and legal literature, absent relevant expert testimony of record); Erickson, 574 P.2d at 4-7 (in determining pharmacological properties and psychological impact of cocaine, in connection with deciding whether cocaine was narcotic within meaning of criminal statute, appellate court properly could refer to scientific articles not considered by trial court in addition to expert testimony of record). Whether the judge reviews books or articles proffered by the parties or finds relevant sources in a library, these are not part of the trial record because their authors have not appeared and been subjected to cross-examination. Such materials are therefore appropriately called extra record or non-record sources of information. See K.C. Davis, supra note 18, at 404-06; 2 MCCORMICK,supra, 331, at 399 n. 16; Erickson, 574 P.2d at 6. FED.R.EVID. 803(18) exempts from the hearsay rule statements in treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, to the extent they are called to the attention of an expert witness, provided the statements are read into evidence and not ... received as exhibits. FED.R.EVID. 803(8) exempts from the hearsay rule most Records, reports, statements, or data compilations of public offices or agencies, unless the sources of information or other circumstances indicate lack of trustworthiness. In articulating its definition, the Court drew on earlier formulations: principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental, Palko, 302 U.S. at 325, 58 S.Ct. at 152 (quoting Snyder v. Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 332, 78 L.Ed. 674 (1934)); fundamental principles of liberty and justice which lie at the base of all our civil and political institutions, Palko, 302 U.S. at 328, 58 S.Ct. at 153 (quoting Herbert v. Louisiana, 272 U.S. 312, 316, 47 S.Ct. 103, 104, 71 L.Ed. 270 (1926)). One treatise has seen the Duncan test as being somewhat broader than Palko s concept of ordered liberty: This new test meant that the Court would be willing to enforce values which the justices saw as having a special importance in the development of individual liberty in American society, whether or not the value was one that was theoretically necessary in any system of democratic government. JOHN E. NOWAK, ET AL., CONSTITUTIONAL LAW 455 (1983). In a footnote, Justice Powell responded to Justice White who, in dissent-although agreeing that Palko s formulation had by then been considered too restrictive-rejected as too broad Moore s reformulation of the kind of liberty interest protected as a fundamental right under the due process clause. See Moore, 431 U.S. at 541, 546, 549-50, 97 S.Ct. at 1957, 1959-60, 1961-62
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Dean v. District of Columbia, 653 A.2d 307 (1995) 63 USLW 2449 (White, J., dissenting). According to Justice Powell: Although he agrees that the Due Process Clause has substantive content, MR. JUSTICE WHITE in dissent expresses the fear that our recourse to history and tradition will broaden enormously the horizons of the Clause. Post, at 549-550. To the contrary, an approach grounded in history imposes limits on the judiciary that are more meaningful than any based on the abstract formula taken from Palko v. Connecticut, 302 U.S. 319 [58 S.Ct. 149, 82 L.Ed. 288] (1937), and apparently suggested as an alternative. Cf. Duncan v. Louisiana, supra, [391 U.S.] at 149-150, n. 14 [88 S.Ct. at 1447-48, n. 14] (rejecting the Palko formula as the basis for deciding what procedural protections are required of a State, in favor of a historical approach based on the Anglo-American legal tradition). Indeed, the passage cited in MR. JUSTICE WHITEs dissent as most accurately reflect[ing] the thrust of prior decisions on substantive due process, post, at 545, expressly points to history and tradition as the source for supplying ... content to this Constitutional concept. Poe v. Ullman, supra, [367 U.S. 497] at 542 [81 S.Ct. 1752, 1776, 6 L.Ed.2d 989 (1961) ] (Harlan, J., dissenting). Id. at 504 n. 12, 97 S.Ct. at 1938 n. 12.
29
The constitutional equal protection guarantee, applicable to the states through the Fourteenth Amendment, is extended to the District of Columbia through the due process clause of the Fifth Amendment. See Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954). After the trial court ruled, the Districts statute criminalizing even consensual sodomy by adults was amended to eliminate consensual sexual acts between persons who are above the existing age of consent. See Right to Privacy Amendment Act of 1993, D.C.Law 10-14, 40 D.C.Reg. 3007 (1993); D.C.Code 22-3502 (1994 Supp.). Although the class at issue is limited to adult homosexual couples who (in order to avoid the unchallenged consanguinity bar) are not related, this case, fundamentally, deals with the question whether homosexuals are entitled to suspect or quasi-suspect class status under equal protection analysis. For convenience, therefore, I shall refer simply to the rights of homosexuals or of gays and lesbians, not more narrowly to unrelated adult homosexual couples. No party has suggested that, because this is a marriage case, the constitutional analysis of the protected class at issue is somehow narrower than in other cases where sexual orientation receives constitutional consideration. If there were any significance to the fact that only a subclass of homosexuals is involved here, that presumably would have received attention by the government in defending the marriage statute. Appellants have not argued that same-sex marriage, though not a fundamental right under the due process clause, is a fundamental right for equal protection purposes. I therefore do not address that possibility. Professor Sunstein has adverted to this question, pointing out possible distinctions between fundamental rights in due process and equal protection analyses, in Cass R. Sunstein, Sexual Orientation and the Constitution: A Note on the Relationship Between Due Process and Equal Protection, 55 U.CHI.L.REV. 1161, 1168-69 (1988). First, appellants stress that the need for emotional support for an intimate relationship, as well as the need for an official blessing having religious or spiritual significance for the relationship, is self-evidently not limited to heterosexuals. Next, appellants contended in the trial court that physical consummation of a same-sex marriage can occur without violating the sodomy law, through mutual masturbation. On appeal, appellants note that the law criminalizing adult, consensual sodomy has been repealed. See supra note 30. Accordingly, we judicially know that, in the District, couples of marriageable age may now lawfully consummate their unions, if they choose to do so, through sodomy. Finally, appellants have catalogued what we can judicially know: the D.C.Code confers on married couples a substantial number of benefits not available to unmarried couples. See supra note 19. In this opinion I do not consider whether same-sex couples, if not foreclosed from marriage, are entitled to constitutional protection for the exercise of various derivative actions that would affect third parties, such as adoption of children. See Loving v. Virginia, 388 U.S. at 11, 87 S.Ct. at 1823. See Graham v. Richardson, 403 U.S. at 372, 91 S.Ct. at 1852. See Oyama v. California, 332 U.S. 633, 644-46, 68 S.Ct. 269, 274-75, 92 L.Ed. 249 (1948); Korematsu v. United States, 323 U.S. 214, 216, 65 S.Ct. 193, 194, 89 L.Ed. 194 (1944); Hirabayashi v. United States, 320 U.S. 81, 100, 63 S.Ct. 1375, 1385, 87 L.Ed. 1774 (1943). See Mississippi University for Women v. Hogan, 458 U.S. 718, 724, 102 S.Ct. 3331, 3336, 73 L.Ed.2d 1090 (1982); Craig v. Boren, 429 U.S. 190, 197, 97 S.Ct. 451, 456-57, 50 L.Ed.2d 397 (1976); but see Frontiero v. Richardson, 411 U.S. at 682, 93 S.Ct. at 1768 (plurality opinion) (classifications based on sex are inherently suspect).
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See Mills v. Habluetzel, 456 U.S. 91, 99, 102 S.Ct. 1549, 1554-55, 71 L.Ed.2d 770 (1982); Lalli v. Lalli, 439 U.S. 259, 265, 99 S.Ct. 518, 523, 58 L.Ed.2d 503 (1978); Trimble v. Gordon, 430 U.S. 762, 767, 97 S.Ct. 1459, 1463-64, 52 L.Ed.2d 31 (1977); Mathews v. Lucas, 427 U.S. 495, 510, 96 S.Ct. 2755, 2764-65, 49 L.Ed.2d 651 (1976). The Court has never provided a coherent explanation of the characteristics which, either overtly or covertly, trigger intermediate review. LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 1614 (2d ed. 1988). One federal district court has held that homosexuals and bisexuals comprise a quasi-suspect class. See Equality Foundation of Greater Cincinnati v. Cincinnati, 860 F.Supp. 417 (S.D.Ohio 1994) (holding, among other things, that gays, lesbians, and bisexuals comprise quasi-suspect class, with result that any law discriminating against class would have to be substantially tailored to sufficiently important governmental interest; and, applying that test, permanently enjoining voter-enacted city charter amendment that would prohibit adoption or enforcement of any protection based on sexual orientation, status, conduct, or relationship, since amendment would violate equal protection clause, having no legitimate governmental purpose). See also Watkins v. United States Army, 875 F.2d 699, 724-28 (9th Cir.1989) (en banc) (Norris, J. concurring) (opining that homosexuals comprise a suspect class). See generally Homosexuals Right to Marry, Note, 128 U.PA.L.REV. at 202-06; TRIBE, supra, at 1614-18; Note, The Constitutional Status of Sexual Orientation: Homosexuality as a Suspect Classification, 98 HARV.L.REV. 1285, 1297-1305 (1985); Harris M. Miller II, Note, An Argument for the Application of Equal Protection Heightened Scrutiny to Classifications Based on Homosexuality, 57 S.CAL.L.REV. 797, 812-16 (1984); John C. Hayes, The Tradition of Prejudice Versus the Principle of Equality: Homosexuals and Heightened Equal Protection Scrutiny After Bowers v. Hardwick, 31 B.C.L.REV. 375, 405-24 (1990); Kevin A. Zambrowicz, Comment, To Love And Honor All The Days Of Your Life: A Constitutional Right To Same-Sex Marriage, 43 Cath.U.L.Rev. 907, 935-40 (1994). See Lyng v. Castillo, 477 U.S. 635, 638, 106 S.Ct. 2727, 2729, 91 L.Ed.2d 527 (1986) (primary households close relatives, excluded from federal food stamp program, have not been subjected to discrimination); Cleburne, 473 U.S. at 443, 105 S.Ct. at 3256 (mentally retarded not victims of continuing antipathy or prejudice); Murgia, 427 U.S. at 313, 96 S.Ct. at 2567 (police officers over age 50, and the aged generally, have not experienced history of purposeful unequal treatment ); San Antonio School Independent Dist. v. Rodriguez, 411 U.S. 1, 28, 93 S.Ct. 1278, 1294, 36 L.Ed.2d 16 (1973) (minority and poor schoolchildren not subjected to history of purposeful unequal treatment). Cleburne, 473 U.S. at 440, 105 S.Ct. at 3254 (statutory classifications by race alienage, and national origin are deemed to reflect prejudice and antipathy); Mississippi University for Women, 458 U.S. at 725, 102 S.Ct. at 3336 (Care must be taken in ascertaining whether the statutory objective itself reflects archaic and stereotypic notions.); Murgia, 427 U.S. at 313, 96 S.Ct. at 2566 (class of police officers over age 50, have not experienced a history of purposeful unequal treatment, or been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities). Lyng, 477 U.S. at 638, 106 S.Ct. at 2729 (close relatives do not exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group); Cleburne, 473 U.S. at 442, 105 S.Ct. at 3255-56 (mentally retarded are different from other people, immutably so, in relevant respects); Plyler, 457 U.S. at 220, 102 S.Ct. at 2396 (children of illegal aliens, unlike their parents, have legal characteristic[s] over which children can have little control); Lucas, 427 U.S. at 505, 96 S.Ct. at 2762 (1976) (legal status of illegitimate children is, like race or natural origin, a characteristic determined by causes not within the control of the illegitimate individual); Frontiero, 411 U.S. at 686, 93 S.Ct. at 1770 (sex, like race and natural origin, is an immutable characteristic determined solely by the accident of birth). Lyng, 477 U.S. at 638, 106 S.Ct. at 2729 (close relatives of primary household are not a minority or politically powerless); Cleburne, 473 U.S. at 445, 105 S.Ct. at 3257 (lawmakers have been adopting remedial legislation in manner that negates any claim that the mentally retarded are politically powerless in the sense that they have no ability to attract the attention of the lawmakers); Rodriguez, 411 U.S. at 28, 93 S.Ct. at 1294 (class of minority and poor schoolchildren has not been relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process); see also Plyler, 457 U.S. at 216 n. 14, 102 S.Ct. at 2394 n. 14 (quoting Rodriguez ); Murgia, 427 U.S. at 313, 96 S.Ct. at 2566-67 (quoting Rodriguez ). Indeed, any attempt to criminalize the status of an individuals sexual orientation would present grave constitutional problems. Watkins, 875 F.2d at 725 (Norris, J., concurring) (citing Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962)). See also Rowland, 470 U.S. at 1016, 105 S.Ct. at 1378 (Brennan, J., dissenting from denial of certiorari ) (even if adverse state action based on homosexual conduct were valid under equal protection principles, such approval would not answer the question, posed here, whether the mere nondisruptive expression of homosexual preference can pass [constitutional] muster). Recently, in Steffan v. Perry, 41 F.3d 677 (D.C.Cir.1994) (en banc), the United States Court of Appeals for the District of Columbia Circuit sustained the constitutionality of regulations pursuant to which a former Navy midshipman was discharged from the Naval Academy after admitting he was a homosexual. A majority of the court concluded that the government had not punished Steffan for homosexual status but, rather, for inferable conduct-homosexual acts-attributable to his announced sexual orientation. The dissenters, rejecting the inference of conduct from sexual orientation alone, found unconstitutional punishment
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Dean v. District of Columbia, 653 A.2d 307 (1995) 63 USLW 2449 based solely on sexual orientation. For purposes of the case, Steffan had conceded that the government had a legitimate interest in keeping individuals who engage, or intend to engage, in homosexual conduct out of the military; accordingly, he did not contest the courts equal protection review under the rational basis test.
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Judge Norris has offered a useful hypothetical, based on the facts of Moore v. City of East Cleveland, supra, that makes clear why due process analysis does not dictate an equal protection result. Suppose a city passed a single family occupancy housing ordinance allowing only members of the immediate, nuclear family to live in the same house. Suppose further that a disproportionate number of black families in the community lived together in extended families that included, for example, cousins and grandparents. Finally, suppose the ordinance was motivated by a racially discriminatory purpose. A black family challenging the ordinance could raise a due process claim, arguing that the ordinance impermissibly intruded on deeply rooted family traditions. In real life, the Court found such a due process claim persuasive. But suppose the Court had rejected the due process claim. Suppose the Court had instead agreed with the city of East Cleveland that the privacy interests protected by the Constitution do not include extended family relationships-that the due process clause does not give grandmothers any fundamental rights with respect to grandsons. In that event, the black family could still challenge the ordinance on equal protection grounds, arguing that the ordinance discriminated against blacks. Could anyone seriously maintain that the Courts hypothetical refusal to give due process protection to extended family living would have any bearing on the black familys equal protection claim ? Of course not. Watkins, 875 F.2d at 719 (Norris, J., concurring) (footnotes omitted). See Sexual Orientation and the Law, supra, at 1567 (the stereotypes that gay men and lesbians are more likely to molest children, that they cannot be trusted to keep secrets, and that homosexuality is contagious... have repeatedly been proven false) (footnotes omitted); see generally Sharon B. Gurwitz & Melinda Marcus, Effects of Anticipated Interaction, Sex, and Homosexual Stereotypes on First Impressions, 8 J. APPLIED SOC. PSYCHOL. 47, 54 (1978) (In an experiment testing 96 college students response to a questionnaire and videotape interview of a fellow student, the Gay male was rated as having less positive personality traits than the Straight male as well as possessing stereotype-related traits to a greater extent.); Mary E. Kite & Kay Deaux, Attitudes Toward Homosexuality: Assessment and Behavioral Consequences, 7 BASIC & APPLIED SOC. PSYCHOL. 137, 156 (June 1986) (Persons who are aware of a persons homosexuality are more negative toward homosexuals than are persons who are unaware, regardless of their attitude toward homosexuality.). See, e.g., Laura S. Allen & Roger A. Gorski, Sexual Orientation and the Size of the Anterior Commissure in the Human Brain, 89 PROC. NATL ACAD. SCI. U.S.A. 7199 (1992) (Neuroanatomical study reveals significant differences between homosexual and heterosexual men in the structure of the anterior commissure region of the brain); J. Michael Bailey & Richard C. Pillard, A Genetic Study of Male Sexual Orientation, 48 ARCH. GEN. PSYCHIATRY Y 1089, 1093 (Dec.1991) (Twin study suggests that genetic factors are important in determining individual differences in sexual orientation); Dean H. Hamer, et al., A Linkage Between DNA Markers on the X Chromosome and Male Sexual Orientation, 261 SCIENCE 321, 321 (July 16, 1993) (Pedigree and linkage analysis indicates a statistical confidence interval of more than 99 percent that at least one subtype of male sexual orientation is genetically influenced); Simon LeVay, A Difference in Hypothalamic Structure Between Heterosexual and Homosexual Men, 253 SCIENCE 1034 (Aug.1991) (Neuroanatomical study reveals significant differences between homosexual and heterosexual men in the structure of the anterior hypothalamus region of the brain); D.F. Swaab & M.A. Hofman, An Enlarged Suprachiasmatic Nucleus in Homosexual Men, 537 BRAIN RESEARCH 141 (1990) (Neuroanatomical study reveals significant differences between homosexual and heterosexual men in the structure of the suprachiamatic nucleus region of the brain); see also ALAN P. BELL ET AL., SEXUAL PREFERENCE: ITS DEVELOPMENT IN MEN AND WOMEN 212-15, 216 (1981) (sexual preference formed at an early age; citing genetic and hormonal factors, our findings are not inconsistent with what one would expect to find if, indeed, there were a biological basis for sexual preference); Ray B. Evans, Physical and Biochemical Characteristics of Homosexual Men, 39 J. CONSULTING & CLIN. PSYCHOL. . 140, 146 (1972) (the differences in physical characteristics and in the biochemical values [of heterosexual and homosexual males] support the general thesis of a biological factor in the etiology of homosexuality in males); Richard Green, The Immutability of (Homo)sexual Orientation: Behavioral Science Implications for a Constitutional (Legal) Analysis, 16 J. Psychiatry & Law 537 (1989) (comprehensively examines twin studies, family studies, hormonal influence studies, brain studies, and various treatments for homosexuality to conclude that homosexuality is immutable for equal protection purposes); Martin Hoffman, Homosexuality, in HUMAN SEXUALITY IN FOUR PERSPECTIVES 164-189 (Frank Beach, ed., 1976) (therapy should be used to help homosexuals accept themselves rather than to cure them because past efforts have shown that homosexuality is not curable in a large part of the homosexual population and therapists harm homosexual patients by making them believe that they are sick); James D. Weinrich, Is Homosexuality Biologically Natural?, in HOMOSEXUALITY: SOCIAL, PSYCHOLOGICAL AND BIOLOGICAL ISSUES 197-208 (William Paul, et al., eds., 1982) (human homosexuality is ... as biologically natural as is human heterosexuality). BELL ET AL., supra note 49, at 211. These authors from the Alfred C. Kinsey Institute for Sex Research elaborated: Another notable difference we found has to do with whether the respondents were bisexual or exclusively homosexual. Exclusive homosexuality seemed to be something that was firmly established by the end of adolescence and relatively impervious to change or modification by outside influences. For the bisexuals, by contrast, a homosexual preference seemed to emerge later and to be more tied to learning and social experiences. These findings may well have implications for
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Dean v. District of Columbia, 653 A.2d 307 (1995) 63 USLW 2449 whatever help certain homosexuals seek to resolve their own ambiguities or feelings of guilt about their homosexuality. To therapists, we would suggest that exclusive homosexuality probably is so deeply ingrained that one should not attempt or expect to change it. Rather, it would probably make far more sense simply to recognize it as a basic component of a persons core identity and to help the client develop more-positive feelings about and respect for his or her sexual proclivities. Id. (emphasis added).
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See WILLIAM MASTERS & VIRGINIA JOHNSON, HOMOSEXUALITY IN PERSPECTIVE 411 (1979) (critiqued in BELL, ET AL., supra note 49, at 213). Philip Blumstein & Pepper Schwartz, Intimate Relationships and the Creation of Sexuality, in HOMOSEXUALITY/Heterosexuality: CONCEPTS OF SEXUAL ORIENTATION 307-320, 309 (David P. McWhirter, et. al. eds. 1990) (asserting that fundamental categorical desire for sexual relations with persons of only one specific gender may not exist, and that it is the culture that creates understandings about how people are sexual and determines whether people will be able to have only one sexual focus, to eroticize both sexes, or to experience categorical desire for one sex at one point in their lives and categorical desire for the other sex at another point in their lives). See WILLIAM AARON, STRAIGHT (1972) (autobiographical description of transition from homosexual to heterosexual lifestyle and marriage through commitment to Christianity); ALBERT ELLIS & ROBERT A. HARPER, A NEW GUIDE TO RATIONAL LIVING 52-59 (1975) (concluding that passive homosexuality is the result of an Oedipal complex with a corresponding fear of castration and that reindoctrination is possible with better information and clearer thinking); id. at 189-93 (describing homosexuals treatment through change in attitude); B.H. Fookes, Some Experiences in the Use of Aversion Therapy in Male Homosexuality, Exhibitionism, and Fetish-Transvestism, 115 BRIT. J. PSYCHIATRY Y 339 (1969) (six of nine males who had not experienced heterosexual intercourse prior to shock aversion therapy demonstrated decreased homosexual arousal and engaged in heterosexual coitus at three years follow-up); William Freeman & Robert G. Meyer, A Behavioral Alteration of Sexual Preference in the Human Male, 6 BEHAV. THERAPYY 206 (1975) (all nine subjects free of homosexual behavior one year after aversive shock treatment, and seven subjects free of homosexual behavior eighteen months after treatment); E. Mansell Pattison & Myrna Loy Pattison, Ex-Gays: Religiously Mediated Change in Homosexuals, 137 AM.J.PSYCHIATRY 1553, 1562 (1980) (study of 11 of 30 homosexual men who changed their sexual orientation through Pentecostal church conversion concludes that when homosexuality was defined as a changeable condition, it appears that change was possible): KENT PHILPOTT, THE THIRD SEX? SIX sHomosexuals Tell Their Stories 172, 178-200 (1975) (CONCLUDING THAT HOMOSEXUALITY IS A CHOICE TO BE AND DO WHAT WAS NOT INTENDED AND THAT PEOPLE CAN BE CURED OF HOMOSEXUAL TEMPTATIONS BY TURNING TO COUNSELLING AND TO CHRISTIANITY); D.J. West, Homosexuality Re-Examined 251 (1977) (USE OF PORNOGRAPHY AND GROUP SEX MAY HELP TROUBLED HOMOSEXUALS GET AROUSED IN HETEROSEXUAL SITUATIONS); ID. AT 261 (AVERSION THERAPY WHICH INVOLVED SHOWING HOMOSEXUALS EROTIC HOMOSEXUAL PICTURES AND INTERRUPTING PLEASURE WITH UNPLEASANT, PUNISHING SENSATIONS TO DISCOURAGE THEM FROM HOMOSEXUAL AROUSAL ENJOYED CONSIDERABLE VOGUE IN THE THIRTIES AND FORTIES). Two federal circuit courts of appeals have simply asserted, as though it were self-evident, that homosexuality is not immutable. See High Tech Gays, 895 F.2d at 573 (Homosexuality is not an immutable characteristic; it is behavioral and hence is fundamentally different from traits such as race, gender, or alienage.); Woodward, 871 F.2d at 1076 (Members of recognized suspect or quasi-suspect classes, e.g., blacks or women, exhibit immutable characteristics, whereas homosexuality is primarily behavioral in nature.). Not only do these cases fail to cite any authority for their conclusions, but also they were written before the most recent scientific studies concluding that sexual orientation appears to have a genetic basis. See supra note 49. In two cases where the classes at issue had immutable characteristics, the Supreme Court found reason not to apply strict or intermediate scrutiny to the legislation under attack. In Cleburne, which considered the constitutionality of a zoning ordinance that required permits for group homes for the mentally retarded, the Supreme Court struck down the ordinance under the rational basis test after rejecting the court of appeals conclusion that mental retardation was a quasi-suspect classification. The Court did not dispute the immutability of mental retardation, see Cleburne, 473 U.S. at 442, 105 S.Ct. at 3255, but concluded that lawmakers took a benign view of the class that negate[d] any claim that the mentally retarded are politically powerless and belie [d] a continuing antipathy or prejudice and a corresponding need for more intrusive oversight by the judiciary. Id. at 443, 445, 105 S.Ct. at 3256, 3257. In Murgia, in considering a state law mandating retirement of police officers at age 50, the Court sustained the legislation under the rational basis test, see Murgia, 427 U.S. at 314, 96 S.Ct. at 2567, concluding that even old age does not define a discrete and insular group in need of extraordinary protection from the majoritarian political process. Id. at 313, 96 S.Ct. at 2567 (citation omitted). Cleburne and Murgia, of course, are cases in which the Court found none of the relevant factors, except immutability, present for evaluating strict or intermediate scrutiny; in the other cases reflecting immutability, see supra notes 35-39, more stringent scrutiny was required because the factors, taken as a group, so indicated. Health Care Benefits Expansion Act of 1992, 39 D.C.Reg. 2861 (1992), codified in D.C.Code 36-1401 to -1408 (1993 Repl.).
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See D.C. Supplemental Appropriations and Rescissions Act, Pub.L. No. 102-382, 106 Stat. 1422, 1422 (1992) (Congress prevented District from funding Health Care Benefits Expansion Act of 1992 in fiscal year 1993); D.C. Appropriations Act, Pub.L. No. 103-127, 107 Stat. 1336, 1349 (1994) (Congress prevented District from funding Health Care Benefits Expansion Act of 1992 in fiscal year 1994). There undoubtedly are those who will argue from principle, based on religious or other moral premises, that if there is any evidence therapy-even traumatic therapy-will succeed in removing ones tendency toward homosexuality, that is to be preferred-in the name of public morality-over legal legitimation of unnatural behavior proscribed, indeed criminally proscribed, throughout American history. Putting aside the observation that the need for traumatic therapy to reverse homosexuality would indicate homosexuality is not necessarily unnatural, I will simply say that one persons principle is, from an alleged victims viewpoint, unwarranted prejudice. I cannot imagine any constitutional basis for allowing the government to discriminate against homosexuals in any way premised on an allegation, coupled with a finding, that homosexuality is not immutable simply because traumatic therapy can change it. In context, that would be the equivalent of using the rack and the screw-torture society cannot use even to punish its worst criminals, consistent with the Eighth Amendment. Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 209-10, 96 L.Ed. 183 (1952). The footnote supporting this conclusion is as follows: 192. See Green, Sexual Identity of 37 Children Raised by Homosexual or Transsexual Parents, 135 AM.J.PSYCHIATRY 692, 696 (1978) (reporting normal behavior and typical aspirations among the subject children); Green, The Best Interests of the Child with a Lesbian Mother, 10 BULL.AM.ACAD.PSychiatry & L. 7, 14 (FINDING NO SIGNIFICANT [GENDER IDENTITY] DIFFERENCES FOR THE BOYS OR THE GIRLS IN EITHER [THE HETEROSEXUAL OR LESBIAN] SET OF FAMILIES); COHEN, CHILDREN OF HOMOSEXUALS SEEM HEADED STRAIGHT, Psychology Today, Nov. 1978, at 44-45; HOEFFER, CHILDRENS ACQUISITION OF SEX-ROLE BEHAVIOR IN LESBIAN-MOTHER FAMILIES, 51 Am.J.Orthopsychiatry 536, 542 (1981) (NOTING NO SIGNIFICANT DIFFERENCE IN THE ACQUISITION OF SEX-ROLE TRAITS BETWEEN THE CHILDREN OF LESBIAN AND HETEROSEXUAL MOTHERS AND HYPOTHESIZING THAT CHILDRENS PEERS HAVE THE GREATEST INFLUENCE ON THEIR SEX-ROLE DEVELOPMENT); WEEKS, TWO CASES OF CHILDREN OF HOMOSEXUALS, 6 Child Psychiatry & Hum. Dev. 26-32 (1975) (FINDING IT IMPOSSIBLE TO DISTINGUISH SPECIFIC ASPECTS OF THE CHILDRENS DEVELOPMENT THAT ARE DIRECTLY RELATED TO THEIR PARENTS SEXUALITY); NOTE, THE AVOWED LESBIAN MOTHER AND HER RIGHT TO CHILD CUSTODY: A CONSTITUTIONAL CHALLENGE THAT CAN NO LONGER BE DENIED, 12 San Diego L.Rev. 799, 861 (1975) (QUOTING PSYCHIATRIST GEORGE WEINBERG): Most homosexuals have had parents who are exclusively heterosexual or primarily so. As this fact suggests, homosexual men and women do not learn their sexual preferences by watching the sexual activities of their parents.... The occasional concern that a homosexual parent will rear homosexual children is unwarranted by the evidence. See also CALIFORNIA COMMN ON PERSONAL PRIVACY, REPORT OF THE COMMN ON PERSONAL PRIVACY 364 (it is as likely that the left-handed minority will convert members of the right-handed majority as it is that homosexuals can convert heterosexuals). Other literature also supports this conclusion. See Susan Golombok et al., Children in Lesbian and Single-Parent Households: Psychosexual and Psychiatric Appraisal, 24 J. CHILD PSYCHOL. PSYCHIAT.. 4:551 (1983); Richard Green et al., Lesbian Mothers and Their Children: A Comparison with Solo Parent Heterosexual Mothers and Their Children, 15 ARCHIVES OF SEXUAL BEHAV. 2:167 (1986); Mary B. Harris & Pauline H. Turner, Gay and Lesbian Parents, 12 J.HOMOSEXUALITY 2:101 (1986). The legislative history of the Marriage and Divorce Act of 1977, D.C.Stat. 119, shows that when Councilmember Dixon substituted the bill adopted as that Act, after withdrawing Bill 1-89, which would have authorized same-sex marriages, he did so in response to an intense debate between gay rights activists and opponents of Bill 1-89 led by the Catholic Archdiocese of Washington. See supra note 6. The Council of the District of Columbia itself, therefore, never rejected a same-sex marriage bill, and, in any event, there was no discussion or finding of a compelling or substantial state interest in barring same-sex marriages. Homosexual orientation, as such, is not antisocial; homosexual behavior, however-like heterosexual behavior-may, or may not, be antisocial. It is therefore not unlikely that the heterosexual majority would characterize a predictable increase of homosexual behavior of one kind or another as an increase in antisocial behavior, justifying legislation precisely tailored to deter, if not prevent, that behavior. The public majority, for example, might claim a substantial, or even compelling, state interest in withholding from same-sex couples the right to marry, in order to prevent creation of role models who, merely by virtue of a legitimate marriage, might encourage bisexual experimentation that could unsettle mind and body to the point, eventually, of making stable marriage relationships less likely. If such reasoning were proffered, the government would have the burden of demonstrating through credible evidence that the danger was real enough to justify the majoritys claimed interest. Cf. Evans II, supra. On the other hand, if the public majority were to justify barring same-sex marriages simply because they give the wrong message or offend public morality or debase our religious and cultural traditions, that is not the kind of concrete harm, reflecting an important or
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Dean v. District of Columbia, 653 A.2d 307 (1995) 63 USLW 2449 compelling state interest, that would justify government discrimination against homosexual marriage. Cf. id. The question whether an increase in homosexual behavior would amount to an increase of antisocial behavior, therefore, is a contextual one, not self-evidently answerable in the abstract.
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In concrete terms, the question theoretically might be: would the government have a substantial, or even compelling, state interest in barring same-sex marriages if the best evidence available tended to prove, for example, that there was a 25% to 50% chance that same-sex marriages, if amounting to 3% of all formalized marriages in a community, would influence .5% of all children (but probably no more) in the community before age 12 to experiment with homosexual behavior, if not settle on that sexual orientation? Evidence presented in such precise terms may not be forthcoming. I postulate it only to show as precisely as possible the kind of inquiry I believe is required in trying to formulate the states interest. As indicated earlier, the state cannot characterize its interest as substantial or compelling merely by reference to what offends majority values, without concrete accompanying harm. Nothing, moreover, would preclude the parties or the trial court from referencing these other trial records for relevant expert testimony. See Jones, 548 A.2d at 45-46. In Loving, 388 U.S. at 3, 87 S.Ct. at 1819, the trial court had said: Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix. In sustaining this position, the Supreme Court of Appeals of Virginia had relied on its decision in Naim v. Naim, 197 Va. 80, 87 S.E.2d 749 (1955) (en banc), where the court had said, with reference to an Indiana decision upholding an antimiscegenation statute: It was said in that case that the question was one of difference between the races, not of superiority or inferiority, and that the natural law which forbids their intermarriage and the social amalgamation which leads to a corruption of races is as clearly divine as that which imparted to them different natures. Id. 87 S.E.2d at 752. In discussing the Fourteenth Amendment, the Court said: The object of the amendment was undoubtedly to enforce the absolute equality of the two races before the law, but in the nature of things it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political equality, or a commingling of the two races upon terms unsatisfactory to either. Laws permitting, and even requiring, their separation in places where they are liable to be brought into contact do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the state legislatures in the exercise of their police power. The most common instance of this is connected with the establishment of separate schools for white and colored children, which has been held to be a valid exercise of the legislative power even by courts of States where the political rights of the colored race have been longest and most earnestly enforced. Plessy, 163 U.S. at 544, 16 S.Ct. at 1140 (emphasis added). In response to the Thirteenth Amendment, the Court had a similar view: A statute which implies merely a legal distinction between the white and colored races-a distinction which is founded in the color of the two races, and which must always exist so long as white men are distinguished from the other race by color-has no tendency to destroy the legal equality of the two races, or reestablish a state of involuntary servitude. Id. at 543, 16 S.Ct. at 1140 (emphasis added). The same could be said about the due process section of Judge Ferrens opinion, part V, although I agree with him that the Supreme Court has made clear that marriage between two persons of the same sex is not a fundamental right, and hence that the denial of a right to enter into such a marriage is not a violation of due process. Judge Ferren suggests that my rationale is akin to the discredited notion that a divine natural order forbids racial intermarriage, a notion which the Supreme Court quite properly laid to rest in Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967). With all respect, Judge Ferren reads too much into this opinion. As a mere judge, I claim no ability to fathom the natural order, and any discussion of a divinity that shapes its ends is far beyond the scope of this opinion or the competence of its author. All I am saying is that the very nature of the relationship that we call marriage, as it has been recognized and defined for centuries-indeed, millennia-necessarily excludes two persons of the same sex from entering into that relationship. I leave the theological issues to the theologians; the legal and constitutional issues that this case presents are difficult enough. As the Supreme Court of Hawaii has noted, just as not all opposite-sex marriages are between heterosexuals, not all same-sex marriages would necessarily be between homosexuals. Baehr v. Lewin, 852 P.2d 44, 51 n. 11 (Haw.), reconsideration granted in part, 74 Haw. 650, 875 P.2d 225 (1993). Cf., e.g., the statute struck down in Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967), which specifically employed the suspect classification of race.
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I have a somewhat similar difficulty with the argument that discrimination on the basis of gender is involved here. The marriage statute applies equally to men and women. It seems to me to stretch the concept of gender discrimination to assert that it applies to treatment of same-sex couples differently from opposite-sex couples. This argument was rejected in Singer v. Hara, 11 Wash.App. 247, 522 P.2d 1187, 1196 review denied, 84 Wash.2d 1008 (1974), which discussed and distinguished Loving v. Virginia, supra, outlawing the ban on interracial marriages. (The Hawaii Supreme Court took a somewhat different view in ruling on the application of the gender discrimination clause of the Hawaii Constitution in Baehr, supra note 1.) In any event, appellants broad argument is plainly focussed on the impact of the marriage statute upon homosexuals, not upon men and women in general, and, in this context, it would seem somewhat unrealistic to use gender discrimination as the basis for the analysis. Discrimination on the basis of gender calls for an analysis based on quasi-suspect status, see Craig v. Boren, 429 U.S. 190, 197, 97 S.Ct. 451, 456-57, 50 L.Ed.2d 397 (1976), and I can perceive no warrant under current constitutional doctrine and present factual knowledge for placing homosexuality in a status calling for greater scrutiny. Indeed, as Judge FERREN points out, all federal appellate courts that have considered the subject have refused to recognize homosexuality even as much as a quasi-suspect class, even with respect to statutes or regulations addressed solely to that status. See Turner v. Safley, 482 U.S. 78, 95-96, 107 S.Ct. 2254, 2265, 96 L.Ed.2d 64 (1987). I do not think that the existence of other aspects of marriage with which the state cannot impermissibly interfere negates the importance of the basic considerations expressed, e.g., in Zablocki v. Redhail, 434 U.S. 374, 386, 98 S.Ct. 673, 681, 54 L.Ed.2d 618 (1978), and Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655 (1942). The sexual aspect of opposite-sex marriage would appear to relate in a similar way to same-sex marriage between homosexuals. If, as it may appear from Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986), the state could ban the commission of acts presumably to be expected in such a same-sex relationship, it is difficult to understand on what basis the state constitutionally could be forced to extend the recognition of marriage to that relationship, whatever view it might otherwise take of such acts. Cf. Steffan v. Aspin, 303 U.S.App.D.C. 404, 409-10, 8 F.3d 57, 62-63 (1993) (we have noted the anomaly of according special protection to a class whose defining characteristic, homosexual conduct, can be made illegal), judgment vacated, 41 F.3d 677 (D.C.Cir.1994) (en banc). In the marriage context, the much-mooted distinction between homosexual orientation and homosexual acts does not seem particularly relevant. It is, of course, true that not all opposite-sex marriages involve procreation or even sexual relations and conversely that those activities occur without marriage. In the leading case of Baker v. Nelson, the Minnesota Supreme Court rejected this consideration thus: Petitioners note that the state does not impose upon heterosexual married couples a condition that they have a proved capacity or declared willingness to procreate, posing a rhetorical demand that this court must read such condition into the statute if same-sex marriages are to be prohibited. Even assuming [I think the Minnesota court here makes a massive assumption] that such a condition would be neither unrealistic nor offensive under the Griswold rationale [Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) ], the classification is no more than theoretically imperfect. We are reminded, however, that abstract symmetry is not demanded by the Fourteenth Amendment. 291 Minn. 310, 191 N.W.2d 185, 187 (1971) (footnote omitted). The court then cites to several cases and quotes from Skinner v. Oklahoma, supra, 316 U.S. at 540, 62 S.Ct. at 1113: The Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same. 191 N.W.2d at 187 n. 4. See 3 RONALD D. ROTUNDA & JOHN E. NOWAK, TREATISE ON CONSTITUTIONAL LAW 18.23 (2d ed. 1992) and cases cited. To the extent that appellants attack not the institution of marriage as recognized by statute but rather the special considerations given to that status by particularized statutes, as detailed by Judge FERREN in his opinion, it seems to me clear that appellants cannot claim the protection of the equal protection clause on the basis of homosexuals as a quasi-suspect class. Most if not all of such statutes adversely affect all unmarried couples of whatever status, and presumably would pass the rational relation test normally used in equal protection analysis. See, e.g., Pennell v. City of San Jose, 485 U.S. 1, 14, 108 S.Ct. 849, 858-59, 99 L.Ed.2d 1 (1988). In any event, each such statute would have to be addressed on an individual basis. See Jones v. Hallahan, 501 S.W.2d 588, 590 (Ky.Ct.App.1973) (holding that two females are not capable of entering a marriage and therefore the denial of a marriage license to same-sex couples infringes upon no constitutional rights); Baker, supra, 191 N.W.2d at 186-87 (holding that the states marriage statute did not authorize same-sex marriages and rejecting the plaintiffs claims that the prohibition of same-sex marriages violated the Fourteenth Amendments Equal Protection and Due Process Clauses); In re Cooper, 187 A.D.2d 128, 592 N.Y.S.2d 797, 799-800 (holding that a same-sex partner was not a surviving spouse and therefore had no right of election against a decedents will and that exclusion of same-sex partners did not violate equal protection), appeal dismissed, 82 N.Y.2d 801, 604 N.Y.S.2d 558, 624 N.E.2d 696 (1993); Singer, supra, 522 P.2d at 1196-97 (holding that the states refusal to issue a marriage license to a female-female couple did not violate equal protection under the state or federal constitution). A number of cases are extant rejecting other arguments relating to same-sex marriages. See, e.g., Jennings v. Jennings, 20 Md.App. 369, 315 A.2d 816, 820 n. 7 (1974) (noting that Maryland does not recognize same-sex
54
Dean v. District of Columbia, 653 A.2d 307 (1995) 63 USLW 2449 marriages); Gajovski v. Gajovski, 81 Ohio App.3d 11, 610 N.E.2d 431, 433 (1991) (holding that a female cannot live in concubinage with another woman because Ohio does not recognize homosexual marriages); DeSanto v. Barnsley, 328 Pa.Super. 181, 476 A.2d 952, 955-56 (1984) (holding that two persons of the same sex cannot enter a common-law marriage); Slayton v. State, 633 S.W.2d 934, 937 (Tex.Crim.App.1982) (holding that a marriage cannot exist between two persons of the same sex under Texas law). As already alluded to, see note 2 supra, the Hawaii Supreme Court has found that a state statute which denies same-sex couples the right to marry presumptively violated its state constitution unless the state showed it could survive strict scrutiny. Baehr, supra, 852 P.2d at 67. However, the constitutionality of the Districts laws is judged solely under the federal constitution.
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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION VALERIA TANCO and

Case No. 3:13-cv-01159 Judge Aleta A. Trauger

APPENDIX TO MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

Case 3:13-cv-01159 Document 31 Filed 11/19/13 Page 1 of 3 PageID #: 166

Dated: November 19, 2013 Respectfully submitted,

Case 3:13-cv-01159 Document 31 Filed 11/19/13 Page 2 of 3 PageID #: 167

/s/ William L. Harbison

Case 3:13-cv-01159 Document 31 Filed 11/19/13 Page 3 of 3 PageID #: 168

Obergefell v. Kasich, Slip Copy (2013)

2013 Thomson Reuters. No claim to original U.S. Government Works.

Case 3:13-cv-01159 Document 31-1 Filed 11/19/13 Page 1 of 6 PageID #: 169

Obergefell v. Kasich, Slip Copy (2013)

2013 Thomson Reuters. No claim to original U.S. Government Works.

Case 3:13-cv-01159 Document 31-1 Filed 11/19/13 Page 2 of 6 PageID #: 170

Obergefell v. Kasich, Slip Copy (2013)

2013 Thomson Reuters. No claim to original U.S. Government Works.

Case 3:13-cv-01159 Document 31-1 Filed 11/19/13 Page 3 of 6 PageID #: 171

Obergefell v. Kasich, Slip Copy (2013)

2013 Thomson Reuters. No claim to original U.S. Government Works.

Case 3:13-cv-01159 Document 31-1 Filed 11/19/13 Page 4 of 6 PageID #: 172

Obergefell v. Kasich, Slip Copy (2013)

2013 Thomson Reuters. No claim to original U.S. Government Works.

Case 3:13-cv-01159 Document 31-1 Filed 11/19/13 Page 5 of 6 PageID #: 173

Obergefell v. Kasich, Slip Copy (2013)

2013 Thomson Reuters. No claim to original U.S. Government Works.

2013 Thomson Reuters. No claim to original U.S. Government Works.

Case 3:13-cv-01159 Document 31-1 Filed 11/19/13 Page 6 of 6 PageID #: 174

Garden State Equality v. Dow, --- A.3d ---- (2013)

State would not suffer irreparable harm without stay;

West Headnotes (12)

Holdings: The Supreme Court, Rabner, C.J., held that:

2013 Thomson Reuters. No claim to original U.S. Government Works.

Case 3:13-cv-01159 Document 31-2 Filed 11/19/13 Page 1 of 9 PageID #: 175

Garden State Equality v. Dow, --- A.3d ---- (2013)

Appeal and Error Grounds for Allowance

2013 Thomson Reuters. No claim to original U.S. Government Works.

Case 3:13-cv-01159 Document 31-2 Filed 11/19/13 Page 2 of 9 PageID #: 176

Garden State Equality v. Dow, --- A.3d ---- (2013)

West Codenotes Held Unconstitutional N.J.S.A. 37:128, 37:133

2013 Thomson Reuters. No claim to original U.S. Government Works.

Case 3:13-cv-01159 Document 31-2 Filed 11/19/13 Page 3 of 9 PageID #: 177

Garden State Equality v. Dow, --- A.3d ---- (2013)

2013 Thomson Reuters. No claim to original U.S. Government Works.

Case 3:13-cv-01159 Document 31-2 Filed 11/19/13 Page 4 of 9 PageID #: 178

Garden State Equality v. Dow, --- A.3d ---- (2013)

2013 Thomson Reuters. No claim to original U.S. Government Works.

Case 3:13-cv-01159 Document 31-2 Filed 11/19/13 Page 5 of 9 PageID #: 179

Garden State Equality v. Dow, --- A.3d ---- (2013)

2013 Thomson Reuters. No claim to original U.S. Government Works.

Case 3:13-cv-01159 Document 31-2 Filed 11/19/13 Page 6 of 9 PageID #: 180

Garden State Equality v. Dow, --- A.3d ---- (2013)

2013 Thomson Reuters. No claim to original U.S. Government Works.

Case 3:13-cv-01159 Document 31-2 Filed 11/19/13 Page 7 of 9 PageID #: 181

Garden State Equality v. Dow, --- A.3d ---- (2013)

2013 Thomson Reuters. No claim to original U.S. Government Works.

Case 3:13-cv-01159 Document 31-2 Filed 11/19/13 Page 8 of 9 PageID #: 182

Garden State Equality v. Dow, --- A.3d ---- (2013)

2013 Thomson Reuters. No claim to original U.S. Government Works.

2013 Thomson Reuters. No claim to original U.S. Government Works.

Case 3:13-cv-01159 Document 31-2 Filed 11/19/13 Page 9 of 9 PageID #: 183

Jones v. Hamilton County Government, Tenn., --- Fed.Appx. ---- (2013)

West Headnotes (2)

Constitutional Law Local governmental entities Counties Meetings

2013 Thomson Reuters. No claim to original U.S. Government Works.