On Kerrigan v. Commissioner of Public Health

I’m reposting what I wrote in May in advance of today’s opinion by the Court.

“What’s in a name?” – William Shakespeare

Gideon reflects on our Supreme Court confronting the issue of gay marriage in Connecticut in light of the California Supreme Court’s overturning California’s ban on gay marriages:

…it seems to me that the most likely outcome is that the Court will punt the case ( Kerrigan v. Commissioner of Public Health) back to the legislature. The days of the CT Supreme Court being on the forefront of progressive jurisprudence seem to be long gone.

Is punting the issue back to the legislature the right outcome? I think not. Resolving this question is squarely within the Court’s jurisdiction.

I’ve read Judge Pittman’s Superior Court Decision in Kerrigan v. State, 49 Conn. Supp.  644 (2006) in which the court held that:

Civil union and marriage in Connecticut now share the same benefits, protections and responsibilities under law. The Connecticut constitution requires that there be equal protection and due process of law, not that there be equivalent nomenclature for such protection and process.

Really?

Words and nomenclature are powerful expressions of status in our society. We know this.

Just last year, the Department of Mental Retardation changed its name to the Department of Developmental Services. Why?:

This change reflects the mission and commitment of the department to serve individuals eligible for services with the utmost respect and dignity.  DDS Website.

DDS didn’t change its mission or the services it provides – it changed its name.

Imagine if there was a law that prevented Connecticut’s women superior court judges from being called “judges.” Assume that women on the bench were afforded all of the same rights, privileges and responsibilities as their male counterparts except their title is “Miss” instead of “judge’.

Imagine if out of tradition, only white male justices on the Connecticut Supreme Court could hold the title of Justice or Chief Justice.  Assume  that all members of the Court would have the same rights privileges and responsibilities but different titles based on their gender and race.

In 2008, can you imagine an advocate opening his argument with:  “May it please the Court, Miss Rogers, Associate Justices, Mr. Norcott (the Court’s only black Justice) and other Misses of the Court.” I can’t.

Our Supreme Court Justices should be asking themselves, what’s in a name?

And when they do, they should conclude that seperate is not equal.

If I was writing an opinion for the Connecticut Supreme Court in Kerrigan it would not be 172 pages as was the California Supreme Court’s landmark ruling.

It would be short and read something like this:

The Connecticut Constitution requires that: “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.”

The use of the word marriage is a privilege afforded by the legislature.

Connecticut’s Constitution requires that homosexual citizens be treated the same as heterosexual citizens.

Our history defines marriage as normative.  Therefore the creation of the separate term “civil union” must indicate the latter to be nonnormative and, accordingly, less privileged under the law.

Seperate is not equal and nomenclature denotes status.

Connecticut’s gay residents are entitled to the identical rights and identical treatment as opposite sex married persons in Connecticut.