Attorney General: The Honorable M. Jodi Rell, Governor, State of Connecticut, 2005-009 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

April 13, 2005

The Honorable M. Jodi Rell
Governor
State of Connecticut
State Capitol
Hartford, CT 06106

Dear Governor Rell:

This letter responds to your request for a formal opinion on two questions that have arisen in connection with Substitute Senate Bill No. 963, "An Act Concerning Civil Unions" (File No. 24), passed by the Senate on April 6, 2005, and soon to be considered by the House of Representatives. Specifically, you have asked the following questions:

1. Whether the enactment of sSB 963, as presently drafted, would in any way alter the opinions expressed in the Attorney General's opinion issued on May 17, 2004, to Diane Goss Farrell, First Selectwoman of the Town of Westport and Kenneth M. McKeever, Esq., Town Attorney for the Town of Lyme, regarding same sex marriage; and

2. Whether sSB 963, as presently drafted, would prohibit or permit state or local officials to either issue a marriage license to, or conduct a marriage between, couples of the same sex.

Essentially, you have asked whether enactment of sSB 963, as presently drafted, would permit state or local officials to perform or license marriages between same sex couples.

Emphatically and unequivocally, my opinion is that enactment of this measure would provide no authority to perform or license marriages between same sex couples in Connecticut. The bill would in no way expand the current statutory definitions relating to marriage, which restricts it to a man and a woman. Nor would it alter procedures or criteria for performing or licensing marriages, currently limited to opposite sex couples.

Clearly and unambiguously, by its language as well as its legislative intent and history, the measure leaves intact current Connecticut law limiting marriage to opposite sex couples. Its enactment, therefore, would not alter my conclusion in my May 17, 2004 opinion.

Current Connecticut law, both statutory and common, recognizes marriage as limited to members of the opposite sex. 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, 46b-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). In the only Connecticut appellate 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). The court concluded 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.

Several statutes explicitly state that Connecticut does not authorize marriage between members of the same sex. See Conn. Gen. Stat. 46a-81r, providing that laws prohibiting discrimination based upon an individual's sexual orientation shall not be "deemed or construed (4) to authorize the recognition of or the right of marriage between persons of the same sex." See also Conn. Gen. Stat. 45a-727a(4), stating: "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."

As presently drafted, the bill expressly leaves these provisions intact. First, as presently drafted, sSB 963 nowhere states that state or local officials may issue same sex marriage licenses or conduct same sex marriage ceremonies. Instead, it establishes detailed procedures for the issuance of civil union licenses to same sex couples (sSB 963 8-10) and the performance of civil union ceremonies (sSB 963 4-7) that are separate and distinct from the procedures governing the issuance of marriage licenses and the performance of marriage ceremonies set forth in Conn. Gen. Stat. 46b-20 to 46b-34.

Second, repeatedly throughout the bill, the terms "civil union" and "marriage" are used in the disjunctive, thereby emphasizing that they are distinct institutions. Section 2 states that a person is eligible to enter into a civil union if such person is . . . not a party to another civil union or marriage." (emphasis added). Similarly, section 4 makes reference to judges in other states "who may legally join persons in marriage or a civil union." (emphasis added).

Third, although section 15 of the bill provides that "wherever in the general statutes . . . the term 'marriage' is used or defined, a civil union shall be included in such use or definition," the bill explicitly exempts from this provision the statutes governing the issuance of marriage licenses and the performance of marriage ceremonies set forth in Conn. Gen. Stat. 46b-20 to 46b-34. Thus, 46b-20 to 46b-34 clearly do not apply to civil unions.

Fourth, section 15 of the bill makes clear that the term "marriage," as used in Conn. Gen. Stat. 45a-727a(4), which states that "the current public policy of the state of Connecticut is now limited to a marriage between a man and a woman," does not include civil unions. Thus, in its present form, sSB 963 does nothing to alter the current policy of the state limiting marriage to opposite sex couples. Given this fact, and those noted above, I conclude that nothing in sSB 963, if enacted, would 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.

The enactment of sSB 963 clearly would neither permit nor authorize state or local officials to perform or license same sex marriage. No prohibition is expressly included, but it is implicit in the measure's specific provisions for licensing and performing same sex civil union ceremonies that are clearly distinct from those provided for marriage.

Nothing in this bill would change the law, as stated in my earlier opinion, that there is no authority for same sex marriages in Connecticut. The bill makes clear that it is not intended to alter Connecticut's existing policy limiting marriage to opposite sex couples.

I trust that the foregoing is responsive to your concerns.

Very truly yours,


RICHARD BLUMENTHAL
ATTORNEY GENERAL


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