Attorney General: Diane Goss Farrell & Kenneth M. McKeever, Esq. , Town of Westport & Town of Lyme , 2004-006 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

May 17, 2004

Diane Goss Farrell
First Selectwoman
Town of Westport
Town Hall
110 Myrtle Ave.
Westport, CT 06880

Kenneth M. McKeever, Esq.
Town Attorney
Town of Lyme
81 Pennsylvania Ave.
P.O. Box 514
Niantic, CT 06357

Dear First Selectwoman Farrell and Attorney McKeever:

I write in response to your letters, which request my interpretation of Connecticut's General Statutes as they pertain to the legality of same sex marriages in our state. Specifically, you wish to know whether local officials may issue marriage licenses to, or perform marriage ceremonies for, same sex couples.

The question of whether the law permits -- or should permit -- same sex couples to marry is under debate and discussion in communities, legislatures and courts throughout our nation. On this issue, learned and well-intentioned people differ passionately. But public officials, like ourselves, must apply the law irrespective of our own personal views, unswayed by the policy arguments – however persuasive – on each side of the debate. Ultimately, the role and the responsibility of the General Assembly is to enact laws that reflect the State's public policies. Our duty is to interpret and apply these laws, as we are sworn to do.

I have concluded that the Connecticut Legislature has not authorized the issuance of a Connecticut marriage license to a same sex couple, or the performance of a marriage ceremony for a same sex couple, in Connecticut. I can reach no conclusion on whether a Connecticut court would hold that limiting the status of “marriage” to opposite sex couples violates constitutional standards. Ultimately, the courts will have the final say in interpreting our laws, and more particularly in determining whether those laws conform to constitutional principles. Unless and until such time as they are declared unconstitutional, however, our marriage statutes enjoy a presumption of constitutionality.

I. STATUTORY ANALYSIS

First, I note that Chapter 815e of our general statutes -- devoted to and entitled "Marriage" -- does not specifically define the term "marriage." That is to say, there is no specific provision in our marriage statutes that defines the term as strictly between a man and a woman, or that prohibits a man from marrying a man, or a woman from marrying a woman.

However, the very first provision of our general statutes instructs us that "words and phrases shall be construed according to the commonly approved usage of the language . . . ." Conn. Gen. Stat. § 1-1(a). Our marriage statutes refer repeatedly to a "bride" and a "groom"; Conn. Gen. Stat. § 46b-25; as well as to a "husband" and a "wife." Conn. Gen. Stat. § 46b-36 & -37. These terms are commonly understood to refer to a "man" and a "woman," and not to two members of the same sex. See Baker v. Nelson, 191 N.W.2d 185, 186 (Minn. 1971).1

With this scant legislative guidance, the Attorney General's Office therefore concluded in an opinion to Commissioner Douglas Lloyd, dated June 17, 1980, that the General Assembly did not intend for a "marriage" relationship to exist between other than one man and one woman. 1980 Conn. Op. Atty. Gen. June 17, 1980. Actions by our General Assembly and our courts since the issuance of that opinion over two decades ago have only reinforced this conclusion, and have done nothing to undercut it. In fact, several recently enacted statutes state explicitly that Connecticut does not authorize marriage between members of the same sex.

Specifically, in 1991, when passing laws prohibiting discrimination based upon an individual's sexual orientation, the General Assembly stated:

Nothing in sections 4a-60a, 45a-726a, 46a-51, 46a-54, 46a-56, 46a-63, 46a-64b, 46a-65, 46a-67, 46a-68b, and 46a-81a to 46a-81q, inclusive, subsection (d) of section 46a-82, subsection (a) of section 46a-83, and sections 46a-86, 46a-89, 46a-90a, 46a-98, 46a-98a and 46a-99 [all statutes that involve human rights and opportunities] shall be deemed or construed . . . (4) to authorize the recognition of or the right of marriage between persons of the same sex.

Conn. Gen. Stat. § 46a-81r. This provision, contained in a piece of legislation entitled "An Act Concerning Discrimination On The Basis Of Sexual Orientation," is found in Chapter 814c of the General Statutes, entitled "Human Rights and Opportunities."

Further, in 2000, when the General Assembly passed "An Act Concerning The Best Interest of Children In Adoption Matters," P.A. No. 00-228, it made clear in §1(4) of that Act: "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." Conn. Gen. Stat. § 45a-727a(4) (emphasis supplied). This provision is found in Chapter 803 of the General Statutes, entitled "Termination of Parental Rights and Adoption."

In § 5 of the same Act, P.A. No. 00-228, codified at Conn. Gen. Stat. § 45a-727b, the General Assembly underscored this point, providing:

Nothing in this section and sections 45a-724, 45a-727, 45a-727a and 45a-731 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 or with respect to any rights of or between such persons other than their rights and responsibilities to a child who is a subject of an adoption as provided for in sections 45a-724 and 45a-727.

In floor debate on the measure, Sen. Donald Williams, Chair of the Judiciary Committee, made clear that the bill did "not change our policy on marriage in the state of Connecticut." 43 S. Proc., Pt. 8, 2000 Sess., pp. 2456-57.

The General Assembly's statements are consistent with Connecticut common law as well. In the only Connecticut decision that discusses the issue at all, the Connecticut Appellate Court held that the union of two persons of the same sex "[c]learly . . . is not a marriage recognized under [Conn. Gen. Stat.] § 46b-1 because it was not entered into between a man and a woman." Rosengarten v. Downes, 71 Conn. App. 372, 378, cert. granted and dismissed, 261 Conn. 936 (2002).2 The Court noted that Connecticut statutes do "not endorse or authorize, respectively, civil unions or any other relationship between unmarried persons," and that "the common law of Connecticut regarding rights arising out of marital status makes clear that this legal relation contemplated a contract made between a man and a woman." Id. at 383, citing 1 Z. Swift, A Digest of the Laws of the State of Connecticut (1822), p. 18.

Our Supreme Court has stated that "[a]t least since Maynard v. Hill, 125 U.S. 190, 210-14 (1888), it has been clear that the legislature has plenary power to determine the circumstances under which a marital relationship is created and terminated." Carabetta v. Carabetta, 182 Conn. 344, 346 (1980). Although a marital relationship is in its origins contractual, depending as it does upon the consent of the parties, 'a contract of marriage is sui generis. It is simply introductory to the creation of a status, and what that status is the law determines.'" Id., quoting Gould v. Gould, 78 Conn. 242, 245 (1905).

Thus, I am aware of no statute or legislative history authorizing the issuance of a marriage license to a same sex couple, or the performance of a marriage ceremony for a same sex couple in this state. To the contrary, the Connecticut Appellate Court has stated that Connecticut has a "strong legislative policy against permitting same sex marriages." Rosengarten v. Downes, 71 Conn. App. 372, 384, cert. granted and dismissed, 261 Conn. 936 (2002). Hence, local officials cannot legally issue marriage licenses to or perform ceremonies for same sex couples under current law. Issuing a marriage license or performing a marriage ceremony without authority or contrary to law could render an individual vulnerable to criminal sanctions. See e.g., Conn. Gen. Stat. §§ 46b-23 and 46b-32.

Notably, the General Assembly's use of the phrases "current public policy" and "is now limited" when most recently addressing the issue of same sex marriages in P.A. No. 00-228, § 1(4) gives emphasis to what is essentially a truism for all legislative enactments: that the policy of the state can change. Only the General Assembly can give effect to this change in policy by amending the general statutes. "The legislature is free to modify or clarify the policy as it desires. Until it does so, however, we are limited to an interpretation of the statutes as presently written." Connecticut Light and Power Co. v. Texas-Ohio Power, Inc., 243 Conn. 635, 655 n.16 (1998).3

II. CONSTITUTIONAL QUESTIONS

As in all cases that impact the civil rights of citizens, our courts must ultimately determine whether this State's law violates constitutional principles by declining to authorize or recognize marriages between same sex couples. A number of cases raising constitutional challenges to state laws that limit marriage to opposite sex couples are presently making their way through the various courts of the nation. No reliable prediction can be made whether a consensus will emerge among the state or federal courts, or how our own state courts will rule on a particular constitutional challenge. A summary of representative constitutional challenges shows that they raise serious legal issues, whatever their ultimate outcome.

Although the analytical framework for equal protection claims is similar under the federal and Connecticut constitutions, the Connecticut Supreme Court has made clear that the equal protection clauses of the Connecticut Constitution may provide greater protection than does their federal counterpart. Ramos v. Town of Vernon, 254 Conn. 799, 827-28 (2000). Thus, decisions holding that laws limiting marriage to opposite sex couples do not violate the United States Constitution, though instructive, do not preclude an equal protection claim challenging the limitation under the Connecticut Constitution. Cf. Baker v. Vermont, 744 A.2d 864, 870 n.2 (Vt. 1999) (holding that limiting marriage to opposite-sex couples violated state constitution and not reaching federal constitutional claims). Indeed, the Connecticut Constitution contains language similar to that relied upon, in part, by the Vermont Supreme Court in striking down statutes in that State that limit the benefits of marriage to opposite sex couples. See Conn. Const. art. I, § 1 ("no man or set of men are entitled to exclusive public emoluments or privileges from the community"); Baker v. Vermont, 744 A.2d 864, 874 (Vt. 1999).

Under either the federal or state constitutions, however, the first step in analyzing an equal protection claim is to determine the level of scrutiny the court must apply in determining the validity of the challenged statutes. Donahue v. Town of Southington, 259 Conn. 783, 794 (2002). That level of scrutiny depends on whether the classification created by the statutes burdens a suspect class or infringes on a fundamental right. Id. If so, the court will subject the statute to heightened scrutiny. Id. If not, the court will grant more deference to the legislature and hold the statute constitutional so long as it is "'rationally related to a legitimate government purpose.'" Id., quoting Barton v. Ducci Electrical Contractors, Inc., 248 Conn. 793, 814 (1999).

The crucial question thus becomes whether limiting marriage to opposite sex couples burdens a suspect class or infringes on a fundamental right. Courts that have examined similar classifications between same sex and opposite sex couples have characterized the class involved in one of two ways, either as based on sex or as based on sexual orientation. Compare Baehr v. Lewin, 852 P.2d 44, 69 (Haw. 1993) (treating classification as based on sex) with Singer v. Hara, 522 P.2d 1187, 1196 (Wash. Ct. App. 1974) (treating classification as based on sexual orientation). Classifications based on sex are inherently suspect and subject to heightened scrutiny under both the federal and state constitutions. See Kadrmas v. Dickinson Public Schools, 487 U.S. 450, 459 (1988) (applying intermediate scrutiny to sex classification); Daly v. DelPonte, 225 Conn. 499, 513-14 (1993) (indicating, in case involving classification based on disability, that classifications based on characteristics enumerated in Article First, § 20 of the Connecticut Constitution, including sex, are subject to strict scrutiny). By contrast, classifications based on sexual orientation are generally held to be subject only to rational basis scrutiny. See, e.g., Romer v. Evans, 517 U.S. 620, 631-32 (1996).

There is insufficient precedent to know whether Connecticut courts would hold that the State's limit on marriage to couples of the opposite sex is a classification based on sex or a classification based on sexual orientation. Although the limitation would more likely be upheld if viewed as being based on sexual orientation, that analysis would not fully insulate it from attack. Indeed, the Supreme Judicial Court of Massachusetts has held that Massachusetts' ban on same-sex marriages failed to survive even the most deferential level of scrutiny. See Goodridge v. Dep't of Public Health, 798 N.E.2d 941, 961 (Mass. 2003).

Moreover, even where no subject class is at issue, a statute will still be subject to strict scrutiny under either equal protection or due process if it infringes on a fundamental right. See Ramos v. Town of Vernon, 254 Conn. 799, 840-41 (2000) (applying similar analysis to equal protection and due process claims asserting violations of fundamental rights). The principle is well-established and long-accepted that the right to marry is fundamental. See, e.g., Loving v. Virginia, 388 U.S. 1, 12 (1967). It does not necessarily follow, however, that a court would consider the right to marry someone of the same sex to be fundamental. Some courts addressing the issue have concluded that the fundamental right to marry is limited to opposite sex couples, reasoning that marriage by definition is between a man and a woman. See, e.g., Standhardt v. Superior Court of Ariz., 77 P.3d 451, 458 (Ariz. Ct. App. 2003); Baehr, 852 P.2d at 556. Others have held to the contrary. See, e.g., Goodridge v. Dep't of Public Health, 798 N.E.2d 941, 961 (Mass. 2003). Ultimately, Connecticut's courts must decide whether the fundamental right to marriage encompasses the right to marry someone of the same sex. See Ramos v. Town of Vernon, 254 Conn. 799, 836-37 (2000). (noting that the due process clauses of the Connecticut Constitution may provide greater protections than their federal counterpart). Only after answering that threshold question can the analysis proceed to determine whether the State must justify its limitation by a compelling state interest, or merely by a rational basis.

III. CONCLUSION

In conclusion, Connecticut's statutes do not presently allow or authorize state or local officials either to issue a marriage license to, or conduct a marriage ceremony between, couples of the same sex. No reliable prediction is possible on how a court will rule on the various constitutional challenges that could be brought in Connecticut. Reaching the constitutional issues is unnecessary and unwise at this time. The duly enacted laws of this state enjoy a presumption of constitutionality until a court rules to the contrary. State v. Rizzo, 266 Conn. 171, 212 (2003). This office has a duty to defend the constitutionality of duly enacted state laws against constitutional challenges. "It is the policy of this Office that we will not provide advisory opinions to resolve the issue of the constitutionality of a state statute, except where the statute is unquestionably unconstitutional on its face. See Attorney General Directive No. 9 (Revised March, 1990), ¶ 3, at 2." Atty. Gen. Op. 93-027 (Sept. 10, 1993). I certainly cannot conclude that Connecticut law is "unquestionably unconstitutional on its face," or unconstitutional beyond a reasonable doubt. Therefore, the duty of this office would be to defend the law against a constitutional challenge. The duty of the courts would be to make the ultimate determination.

I trust that the foregoing answers your questions and is of assistance to you.

Very truly yours,



RICHARD BLUMENTHAL
ATTORNEY GENERAL

c. The Hon. John G. Rowland
    The Hon. J. Robert Galvin, M.D.


1Whatever may be the policy arguments for recognizing same sex marriages, the "commonly approved usage" of the term "marriage" is limited to the "[l]egal union of one man and one woman as husband and wife." Black's Law Dictionary. See Goodridge v. Department of Public Health, 798 N.E.2d 941, 952 (Mass. 2003). Indeed, if the "commonly approved" usage or understanding were otherwise, then there would be the no need for the myriad legal and legislative initiatives presently underway throughout the nation.

2Rosengarten concerned the plaintiff's attempt to invoke the jurisdiction of Connecticut's courts to dissolve the "civil union" he and the defendant had legally entered into in Vermont. The Connecticut Superior Court ruled that it had no jurisdiction under our family law statutes to entertain the action, which was between two males. The Connecticut Appellate Court agreed, noting that the civil union was not a "marriage" under our statutes because it was not between a man and woman, and that, unlike Vermont, our state statutes do not recognize civil unions or the authority of our courts to dissolve such unions that have been entered into under other state's laws. Rosengarten v. Downes, 71 Conn. App. 372, 378 (2002), cert. granted and dismissed, 261 Conn. 936 (2002). The Connecticut Supreme Court granted certification of the case limited to the following issue: "Did the Appellate Court properly conclude that the trial court had no subject matter jurisdiction to dissolve a civil union entered into pursuant to the laws of Vermont?" Rosengarten v. Downes, 261 Conn. 936 (2002). The Supreme Court ultimately dismissed the case as moot on December 21, 2002, upon the plaintiff's death. The Appellate Court's judgment, however, was never vacated.

3 In February, 2002, the House of Representatives referred H.B. 5001 and H.B. 5002, which would have authorized, respectively, same sex marriages and same sex civil unions, to the Judiciary Committee, which held a public hearing on February 11, 2002, but never acted on the bills.


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