a great day to celebrate (except for a gratuitously offensive amendment)

Ian Ayres

There is much to celebrate now that the Connecticut House has joined the state sentate in passing a civil union bill. The democratic embrace of full legal rights for same-sex couples is real progress. The insistance on the distinct term (civil union vs. marriage) is still "separate but equal" discrimination -- but being forced to use a "blacks only" water fountain is better than having no water fountain at all.

However, before passing the bill, the House approved two amendments. The first reiterated the state's definition of marriage as being between a man and a woman. Jennifer Brown and I organized 79 law professors to sign a letter arguing that this amendment was unnecessary because it would have no legal effect. Connecticut Attorney General Richard Blumenthal issued an opinion the next day backing us up.

But the House not only passed the unnecessary amendment -- which necessitates now additional consideration by the Senate, they also passed a gratuitously offensive amendment that limits same-sex civil unions to couples that are at least 18 years old.

This amendment smells in the nose. The original bill went to great care to create the same conditions for civil union as for marriage. So since different sex couples are allowed to marry at 16 or 17 with permission of parent or probate judge, the original civil union bill would allow 16 and 17 year old same sex couples to register for civil unions with the same sorts of permission.

It is frustrating that the house passed the offensive age amendment more easily (126-22) than the marriage definition amendment (80-67).

So what's so wrong with the age restriction? It substantively discriminates against same-sex couples. Why is a 17 year old fit to marry some of the different sex, but not fit to enter into a civil union with someone of the same sex? I, by the way, don't have a strong feeling that 17 year olds should have the right to do either. And empirically there are not a lot of 17 year olds marrying in Connecticut. But what saddens me is that because of this single hiccup, Connecticut will not be able to say that it gives same sex couples the same options for legal rights as different sex couples. You only get the same rights if you are old enough.
Posted 9:21 PM by Ian Ayres [link]