What's in a Name?

by Martin Magnusson, Editor-at-Large 

In 2005, Connecticut became the second state to offer civil unions to same-sex couples. The legislature passed its civil union law without being ordered to do so by a court, which makes Connecticut unique. Massachusetts, the only state to recognize same-sex marriage, did so as a result of a ruling by the Massachusetts Supreme Judicial Court. Similarly, New Jersey and Vermont created same-sex civil unions in response to judicial rulings. In contrast, the Connecticut legislature created civil union rights for same-sex couples on its own accord.

Connecticut's civil union law affords same-sex couples with the same rights as marriage, only under a different name. Beth Kerrigan and Jody Mock, a Connecticut same-sex couple, see the distinction between “marriage” and “civil union” as inherently unequal.  

These two women, who have been together for thirteen years and are raising twin sons, thus sued the state of Connecticut. Their case, Kerrigan & Mock v. Connecticut Department of Public Health, involves eight same-sex couples who are contending that although civil unions give them the same legal rights as marriage would, calling the two institutions by different names violates the equal protection guarantee of the Connecticut state constitution. The case has wound its way up to the Connecticut Supreme Court. In their brief to the Court, the plaintiffs contend that nomenclature matters:

Marriage is indisputably a civil institution of unparalleled prestige, respect, and longevity. No other relationship has been described . . . as a unique human relationship and one of the most fundamental of human relationships. No other relationship has been characterized by the U.S. Supreme Court as a way of life, a bilateral loyalty, and a relationship intimate to the degree of being sacred. No other state-recognized relationship can have the same spiritual significance for many couples. . . . Because of marriage’s unparalleled prestige and respect, few heterosexual couples would willingly substitute the nomenclature “marriage” with “civil union.”

The editorial board of the Hartford Courant has backed the plaintiffs, drawing attention to the tremendous meaning of the word “marriage” in our society:

To same-sex couples, one word - marriage - can be life-changing. No matter how long they have been together as a family, no matter how many children they have raised, no matter how much they love each other, only in one state, Massachusetts, do they have the choice to marry. . . . “Civil union” is the almost-right word, but not the right one. It constitutes a separate status. This is not equality. Yes, the status gives same-sex couples state legal rights that married couples enjoy. But civil unions do not bestow upon them that all-important word, married, a universally understood sign of commitment and social acceptance.

From its very inception, the case has garnered tremendous interest. At the Connecticut Supreme Court level, twenty-one amicus briefs were filed. Including claims by anti-gay groups that “[i]f any two individuals can 'marry' and secure all of the benefits of civil marriage, then civil marriage loses potency as a means of encouraging responsible procreation.” In other words, these opponents of marriage equality argue that allowing same-sex couples to call themselves “married” will lead to more children being born out of wedlock.

In their amicus brief, Connecticut family law practitioners counter that marriage is not predicated on procreation:

As to procreation, it is settled law that to choose whether to bear or beget a child is within the fundamental privacy rights of an individual, whether married or not. Any link that may have existed between marriage and procreation was severed by the U.S. Supreme Court’s ruling that married couples enjoy a constitutionally guaranteed right to avoid procreation. . . . There is not support, however, for the contention that the right to marry is linked inextricably to, or founded on, real or assumed procreative capacity. Rather, the courts regularly have recognized the two rights as separate and distinct.

Oral arguments on this case can be accessed as video and audio files.