Balkinization: All Hail The Nutmeg State

All Hail The Nutmeg State

Ian Ayres

Connecticut became tonight the first state to legislatively embrace "civil union" rights for same sex couples. It is now impossible to argue that it just "activist judges" who force equality on an unwilling majority. In CT, 3 out of 4 senators voted for it and it was signed by a Republican govenor. As Jennifer Brown wrote this statute makes clear that the hidden ambition of the proposed federal constitutional ammendment is really to preempt the democratic embrace of marriage equality that so many people see now as inevitable.

With this statute, Connecticut leapfrogs ahead of California on the road to marriage equality. While California's domestic partnership law was first, it continues to deny same-sex couples equal state rights:

Domestic Partners will not be able to file joint state income taxes and state
employees will not be entitled to the same benefits under the state’s long-term
care benefits package.

Neither state, however, provides equal standards for qualification. As I earlier blogged, Connecticut discriminates against same-sex couples by making them wait until they are 18 (while allowing heterosexual couples to marry at 16 or 17 with parental or judicial permission). Here we are just following California's discriminatory lead (again 18 for same sex, less than 18 with parental consent for heteros).

What is most interesting is the question of how to rank the C states with regard to their treatment of people who are older than 62. In California, different sex couples can register for domestic partnership if and only if they are >62, while no different sex couples can united in civil union in CT (or Vermont for that matter). On this dimension, does this make California better or worse than CT in terms of equality. Well in one sense it is a move away from "separate but equal" discrimination. But it is an assymetric move in that it represents yet another place where different sex couples clearly have more rights thn same sex couples. If you are a sufficiently old different sex couple in California, you can sit in the front or the back of the bus.

Connecticut civil union is not the whole enchilada of marriage equality, but it will provide tangible, on-the-ground benefits to thousands of same-sex couples and their families. Now it is time for other state legislatures to follow suit.

Posted 9:24 PM by Ian Ayres [link]