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				That’s John McCain’s Chair
				
				
				
					Last night, for the first time, I managed to stay awake for a full debate.
As a lawyer, I’m always interested in the art of argument. I understand that sometimes the words I say aren’t what my audience hears.
Here’s what I heard during last night’s debate:
http://video.google.com/videoplay?docid=-1668159891980120611

    

	

					October 16th, 2008 | Category: A Connecticut Law Blog   | Leave a comment
						
				
			
		
							
			
				
				What Now For Civil Unions In Connecticut?
				
				
				
					Last week’s ruling in Kerrigan v. Commissioner of Public Health legalized same-sex marriage in Connecticut.
But where does that leave Connecticut civil unions?
I asked this question to  Western New England College School of Law Professor Jennifer Levi. Professor Levi was co-counsel in Goodridge v. Department of Public Health, the landmark Massachusetts Supreme Court case which held that it was unconstitutional in Massachusetts to prohibit same-sex marriage.
Cases like Goodridge and Kerrigan don’t happen overnight and they don’t happen without attorneys like Jennifer Levi.
Here’s what Professor Levi had to say about the state of civil unions in Connecticut after Kerrigan:
The case did not strike down a civil union law or otherwise address its validity at all. That’s not what the case was about. Civil unions remain valid and people are certainly allowed to marry their civil union partner.
But the legislature can also take up the issue and address either civil unions or marriages within the constraints of the decision’s equality analysis.
I think the California experience informs that in Connecticut. Couples in domestic partnerships in California remain in them and have the option to get married as well. There are probably good reasons for couples to be both in a marriage and a domestic partnership in California (or a civil union in Connecticut) given all of the discriminatory marriage laws across the country and the possibility that being in a civil union in a jurisdiction that has a pernicious (but narrow) anti-marriage law could offer some hope of protection for someone traveling through.

    

					
					October 15th, 2008 | Category: A Connecticut Law Blog,  Family Law   | Leave a comment
						
				
			
		
							
			
				
				Same-Sex Marriage In Connecticut: Why Justice Scalia’s Dissent In Lawrence v. Texas Was (In Part) Right …
				
				
				
					It was just 5 years ago that I was sitting at Sophia’s Sports Bar in Springfield with a friend.
The United States Supreme Court had just decided Lawrence v. Texas. I bet my friend $100 that within 10 years a court in the United States would find that a prohibition on same-sex couples from marrying would not survive an equal protection claim.
I made my bet because Justice O’Connor based her concurring opinion invalidating a Texas statute banning same-sex sodomy on the equal protection protection grounds. The 6-3 majority in Lawrence invalidated the statute on due process grounds.  O’Connor’s opinion went further than the majority opinion in Lawrence.
In Lawrence, Justice O’Connor quoted Justice Jackson:
“The framers of the Constitution knew, and we should not forget today, that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon them if larger numbers were affected.” Railway Express Agency, Inc. v. New York, 336 U.S. 106, 112-113 (1949) (concurring opinion). 
Hold those words written by Justice O’Connor for just a minute. I’ll get back to them. Justice O’Connor giveth and Justice O’Connor attempted to taketh away.
Back to the bar (not the kind you pass), my friend said to me: “You’re on, that’ll never happen, I’ll gladly pay your bet.”
Less than a year later, the Supreme Court of Massachusetts decided  Goodridge v. Department of Public Health and I won my $100.
Lawrence v. Texas is at the core of the Connecticut Supreme Court’s ruling last week in Kerrigan v. Commissioner of Public Health.
In Kerrigan, Justice Palmer cites (including footnotes) Lawrence v. Texas a total of 44 times.
Justice Palmer quotes the majority opinion in Lawrence a number of times. Here are just a few of them:
Constitutionally protected right:
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. 576-77; individual decisions by consenting adults concerning the intimacies of their physical relationships are entitled to constitutional protection…
Historical Discrimination Against Homosexual Conduct:
As the United States Supreme Court has recognized, ‘‘for centuries there have been powerful voices to condemn homosexual conduct as immoral.”
Due Process:
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., 578. 
Further:
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.
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) Cleburne v. Cleburne Living Center, Inc., supra, 473 U.S. 447; so, too, is moral disapprobation an inadequate reason for discriminating against a disfavored minority. See Lawrence v. Texas, supra, 539 U.S. 577.
A “Living” Constitution:
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. 579.
On the Significance of Lawrence:
Lawrence represents a sea change in United States Supreme Court jurisprudence concerning the rights of gay persons.
Justice O’Connor tried to limit her opinion under the Equal Protection Clause of the United States Constitution, saying that a state has a legitimate interest in preserving the traditional institution of marriage :
That this law as applied to private, consensual conduct is unconstitutional under the Equal Protection Clause does not mean that other laws distinguishing between heterosexuals and homosexuals would similarly fail under rational basis review. Texas cannot assert any legitimate state interest here, such as national security or preserving the traditional institution of marriage. Unlike the moral disapproval of same-sex relations-the asserted state interest in this case-other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.
In dissent, Justice Scalia was very troubled by Justice O’Connor applying an equal protection analysis to the Texas sodomy law:
It must at least mean, however, that laws exhibiting ” ‘a … desire to harm a politically unpopular group,’ “ … are invalid even though there may be a conceivable rational basis to support them.
This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples. Justice O’Connor seeks to preserve them by the conclusory statement that “preserving the traditional institution of marriage” is a legitimate state interest. Ante, at 7. But “preserving the traditional institution of marriage” is just a kinder way of describing the State’s moral disapproval of same-sex couples.
Back to Kerrigan, Justice Palmer found that the State of Connecticut has “failed to provide sufficient justification for excluding same-sex couples from the institution of marriage.”
The vast majority of words written by Justice Palmer in Kerrigan explaining that under the State Constitution homosexual couples are considered a quasi-suspect and entitled to intermediate or heighted scrutiny.
Justice Scalia knew that once a court applied an equal protection analysis, a State’s argument that it had a legitimate interest in preserving traditional marriage would fail.
Justice Scalia was right, “preserving the traditional institution of marriage” is just a kinder way of describing the State’s moral disapproval of same-sex couples.”

    

					
					October 14th, 2008 | Category: A Connecticut Law Blog,  Family Law   | Leave a comment
						
				
			
		
							
			
				
				Connecticut Bar Exam Results - July 2008
				
				
				
					Congratulations to all who passed the July 2008 Connecticut Bar Exam.
I hope that you haven’t stopped smiling.
Did you have the Gipper at your back?
Congratulations.
Please comment below and share your stories about passing the July 2008 Connecticut bar exam. One of the changes that I’ve made to this site is to make it more discussion friendly. I’ve made commenting easier than ever. Give it a try.

    

					
					October 13th, 2008 | Category: A Connecticut Law Blog   | Leave a comment
						
				
			
		
							
			
				
				Rally Monday Millar
				
				
				
					This is in part because I just learned how to post videos.
In part because I have the day off.
In part because I haven’t made a baseball related post since June.

But mostly, because I believe in the powers of Kevin Millar. Go Sox!

    

	

					October 13th, 2008 | Category: A Connecticut Law Blog,  Baseball   | Comments (5)
						
				
			
		
							
			
				
				Same-Sex Marriage In Connecticut: Justice Vertefeuille’s Dissent In Kerrigan v. Commissioner of Public Health
				
				
				
					In the coming weeks and months, lots will be written about the Connecticut Supreme Court’s decision in Kerrigan v. Commissioner of Public Health. As it should be.
I’m still digesting the opinion as are other bloggers in Connecticut.
Connecticut Employment Law Blogger, Daniel Schwartz wonders what impact Kerrigan will have on Connecticut employers. 
Gideon at A Public Defender writes that Justice Palmer’s opinion in Kerrigan is a “passionate, reasoned and intelligent decision that thoroughly discusses the law and the reasoning behind its decision.” And notes that it is an excellent primer in equal protection law.
Connecticut Local Politics is abuzz about the case.
I’m sure that there will be excellent law review articles written about the case in the coming months that will discuss the opinion in more depth.
Sometimes, as a blogger, I’m driving home for work trying to think of something relevant or maybe more honestly, something to post.  Connecticut seaweed law posts don’t write themselves.
Anyhow, thanks to the Court’s ruling in Kerrigan, I’ve got plenty to write about.
I’ll start with the shortest opinion which is Justice Vertefeuille’s dissent.
In addition to joining with Justice Borden in a dissenting opinion, Justice Vertefeuille wrote her own dissent.
Justice Vertefeuille’s dissent makes the most concise case for legislative deference.
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 statute’s constitutionality…
Justice Vertefueille then discusses the Plaintiffs’ burden:
Moreover, because of this strong presumption favoring a statute’s constitutionality, ‘‘those who challenge its constitutionality must sustain the heavy burden of proving its unconstitutionality beyond a reasonable doubt….
One can imagine the Justices in conference on Kerrigan and  Justice Vertefeuille pointing out the window at the State House and saying “hey guys, this is their call.”
Please comment and share your thoughts.

    

					
					October 11th, 2008 | Category: A Connecticut Law Blog,  Legislation,  Litigation   | Comments (5)
						
				
			
		
							
			
				
				SAME-SEX MARRIAGE IN CONNECTICUT: EQUAL AT LAST!!! JUSTICE IN KERRIGAN V. COMMISSIONER OF PUBLIC HEALTH
				
				
				
					Link.
More to follow…Justice Palmer writes for the majority.
Finished skimming Justice Palmer’s opinion and it is compelling.
Justices Palmer, Norcott, Katz, and Harper in the majority.
Three dissenting opinions (Justice Borden joined by Justice Vertefuille, Justice Vertefuille, and Justice Zarella).
Some highlights:
Especially in light of the long and undisputed history of invidious discrimination that gay persons have suffered.. 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.
Something in a name:
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.
Juctice Palmer’s opinion examines the history of discrimination against gay persons:
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.
Seperate is not equal:
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.
Conclusion:
To decide otherwise would require us to apply one set of constitutional principles to gay persons and another to all others. The guarantee of equal protection under the law, and our obligation to uphold that command, forbids us from doing so. In accordance with these state constitutional requirements, same sex couples cannot be denied the freedom to marry. 
Please share your thoughts on the Court’s ruling today by commenting below.
Oh and while you’re watching the Red Sox game tonight, make sure to check A Public Defender for his take on Kerrigan.

    

					
					October 10th, 2008 | Category: A Connecticut Law Blog,  Family Law   | Comments (5)
						
				
			
		
							
			
				
				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.

    

					
					October 10th, 2008 | Category: A Connecticut Law Blog   | Comments (2)
						
				
			
		
							
			
				
				Update: Kerrigan Expected At 11:30 This Morning
				
				
				
					This comes to me from a loyal reader.
No word on the outcome.
My over/under on the number of pages: 150.

    

					
					October 10th, 2008 | Category: A Connecticut Law Blog   | Comments (1)
						
				
			
		
							
			
				
				Friday Musings: Google 2001; Sarah Palin; The Red Sox; & Plaintiff’s Costs In A Civil Action
				
				
				
					It’s the Friday before a long weekend. The weather is perfect, the leaves are changing and the Red Sox open the ALCS tonight in Tampa.
Here’s some lite fare for your Friday:
* Google 2001 is way cool. It’s kind of like a sonogram of the web. It allows you to see the way things were on the net way back in 2001. Click on it and say goodbye to productivity.
* When using Google 2001 type in the phrase: “Sarah Palin”. Use quotes and you may be surprised what you find. Search Baby Search. 
*The Red Sox are banged up. The Rays are an excellent team. Pitching wins in the playoffs. Right now, the Red Sox have the best pitcher in baseball in Jon Lester. Sox in 7. 
*Finally, this link is for me. Every time, I do a plaintiff’s bill of costs, I  have to look up what I’m entitled to. I’m taking a stand and putting an end to this today by posting a link to the statute. Next time, I’ll search AConnecticutLawBlog.
Have a great Columbus Day weekend!

    

					
					October 10th, 2008 | Category: A Connecticut Law Blog   | Leave a comment
						
				
			
		
			
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								Recent Posts			That’s John McCain’s Chair 
						What Now For Civil Unions In Connecticut? 
						Same-Sex Marriage In Connecticut: Why Justice Scalia’s Dissent In Lawrence v. Texas Was (In Part) Right … 
						Connecticut Bar Exam Results - July 2008 
						Rally Monday Millar 
						Same-Sex Marriage In Connecticut: Justice Vertefeuille’s Dissent In Kerrigan v. Commissioner of Public Health 
						SAME-SEX MARRIAGE IN CONNECTICUT: EQUAL AT LAST!!! JUSTICE IN KERRIGAN V. COMMISSIONER OF PUBLIC HEALTH 
						On Kerrigan v. Commissioner of Public Health 
						Update: Kerrigan Expected At 11:30 This Morning 
						Friday Musings: Google 2001; Sarah Palin; The Red Sox; & Plaintiff’s Costs In A Civil Action 
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Build A Solo Practice
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Matt Curtiss’ Connecticut Estate Planning Blog

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