After Connecticut allowed same-sex marriage in 2008, did existing civil unions and state employee benefits continue?

Plain-English summary

After the Connecticut Supreme Court recognized same-sex couples' right to marry in Kerrigan, the state comptroller asked what happened to civil unions and their benefits. In 2008, Attorney General Richard Blumenthal concluded that existing civil unions remained valid, and their state benefits continued. The ruling did not itself stop couples from entering civil unions; that would require a change in the statute.

The opinion also concluded that Connecticut would recognize valid same-sex marriages and civil unions from other states after Kerrigan. A couple already in a Connecticut civil union did not have to dissolve that union before marrying each other under the law as it then stood.

Currency note

This opinion was issued in 2008. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

State employees and benefits administrators at the time

The AG said couples in civil unions continued to receive the state-law rights and benefits of marriage, including state employee health, pension, and life insurance benefits. He relied on Kerrigan's statement that its marriage holding "does not affect the recognition of civil unions in this state."

Civil union couples at the time

The opinion said couples could still enter a civil union absent legislative change, and a couple already in one could marry each other without first dissolving it. It found no Connecticut statute requiring dissolution before marriage to the same partner.

Officials handling out-of-state unions at the time

The AG concluded that after Kerrigan, Connecticut's policy recognized both valid out-of-state civil unions and valid same-sex marriages. He contrasted that conclusion with an earlier opinion written when Connecticut did not yet recognize same-sex marriage.

Common questions

Q: Did Kerrigan automatically cancel Connecticut civil unions in 2008?
A: No. The AG said the state supreme court's marriage ruling left civil unions in place and did not remove their state benefits.

Q: Did a couple have to dissolve its civil union before marrying each other?
A: The opinion said no Connecticut law then required that step for marriage to the same partner.

Q: Would Connecticut recognize a valid same-sex marriage performed in another state?
A: The AG concluded that it would after Kerrigan, along with valid out-of-state civil unions.

Q: Were state employee benefits based on a civil union lost after the marriage ruling?
A: No. The opinion said those benefits continued because the ruling did not alter the validity of civil unions.

Background and statutory framework

The comptroller asked four questions about the effect of Kerrigan v. Commissioner of Public Health on civil unions, benefits, out-of-state unions, and marriage between partners already in a union. The AG read the decision's express preservation of civil unions alongside Connecticut's civil union statutes. He also revisited an earlier opinion on interstate recognition in light of the new state marriage ruling.

The analysis was tied to the statutes and public policy of 2008. It did not address later changes to civil union or marriage law.

Citations and references

Statutes cited in the opinion: Conn. Gen. Stat. §§ 46b-38aa to 46b-38pp; Conn. Gen. Stat. § 46b-38bb.

Case discussed in the opinion: Kerrigan v. Commissioner of Public Health.

Source

• Landing page: https://portal.ct.gov/AG/Opinions
• Opinion page: https://portal.ct.gov/ag/opinions/2008-formal-opinions/honorable-nancy-wyman-comptroller-formal-opinion-2008019-attorney-general-state-of-connecticut

Original opinion text

Honorable Nancy Wyman, Comptroller, Formal Opinion 2008-019, Attorney General, State of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

October 28, 2008

The Honorable Nancy Wyman, Comptroller

Office of the Comptroller

55 Elm Street

Hartford, CT 06106

Dear Ms. Wyman:

This is a formal legal opinion in response to several questions that you raised concerning the ramifications of the Connecticut Supreme Court’s ruling in Kerrigan v. Commissioner of Public Health, S.C. 17716, which will be officially released on October 28, 2008. In Kerrigan, the Court ruled that Connecticut’s laws limiting marriage to opposite sex couples violate the equal protection provisions of the state constitution and that “same sex couples cannot be denied the freedom to marry.” In light of this decision, you have asked:

(1) Whether same sex couples may continue to enter into civil unions pursuant Conn. Gen. Stat. §§ 46b-38aa to 46b-38pp and receive all the rights and benefits of marriage under state law notwithstanding the fact that the Kerrigan decision grants such couples the right to marry?

(2) Whether same sex couples who have entered into civil unions, and are receiving health, pension, life insurance and other benefits based on their civil union status will continue to be eligible for those benefits after the Kerrigan decision takes effect?

(3) Whether, for the purpose of providing state benefits to same sex couples, the State of Connecticut will recognize the validity of out-of-state same sex marriages and out-of-state civil unions?

(4) Whether a same sex couple who is currently in a civil union may be married without dissolving their civil union?

We conclude that the Kerrigan decision does not alter the status of existing civil unions in Connecticut and same sex couples may continue to enter into civil unions, unless the legislature changes current law. Same sex couples united in civil unions continue to be entitled to all the rights and benefits of marriage under state law, including state employee benefits. We further conclude that once the Kerrigan decision takes effect, the State of Connecticut, under the Full Faith and Credit Clause of the United States Constitution, will recognize both same sex marriages and same sex civil unions from other states because both types of unions will be consistent with the public policy of this State. As to whether same sex couples who are currently in civil unions must dissolve their civil unions prior to being married to each other, there is nothing in Connecticut law that currently requires such action. A same sex couple may be married without any action changing their civil union status under current statutes.

Turning to your first question, you ask whether same sex couples may continue to enter into civil unions pursuant to Conn. Gen. Stat. §§ 46b-38aa to 46b-38pp and receive all the rights and benefits of marriage under state law, notwithstanding that Kerrigan grants such couples the right to marry. In footnote 84 of its decision, the Kerrigan majority explicitly addressed this issue when it noted that:

[T]his case only addresses the state’s prohibition against same sex marriage, a ban that we conclude violates the state constitution. Our holding does not affect the recognition of civil unions in this state.

Kerrigan, ___ Conn. at ___ n. 84 (emphasis added). Accordingly, we conclude that civil unions continue to be available to same sex couples pursuant to Conn. Gen. Stat. §§ 46b-38aa to 46b-38pp even after Kerrigan takes effect, absent statutory change by the General Assembly.

In your second question you ask whether same sex couples who have entered into civil unions, and are receiving health, pension, life insurance and other benefits based on their civil union status, will continue to be eligible for those benefits after the Kerrigan decision takes effect. The answer to this question is yes. Because Kerrigan does not alter the validity or status of civil unions, couples in civil unions will continue to be entitled to all the rights and benefits of marriage as a result of those unions even after Kerrigan takes effect.

Your third question asks whether Connecticut courts will continue to recognize the validity of out of state civil unions and, in addition, will now recognize out of state same sex marriages. In a formal opinion dated September 20, 2005, we considered whether Connecticut courts would recognize out of state same sex unions. See Conn. Op. Atty Gen. 2005-024; 2005 Conn AG Lexis 23 (Sept. 20, 2005). We concluded that pursuant to the Full Faith and Credit Clause of the U.S. Constitution, U.S. Const., Art. 4, § 1, Connecticut courts would likely recognize out of state same sex unions that did not violate Connecticut’s own public policy. Id. As of October 1, 2005, Connecticut’s public policy, as set forth in Conn. Gen. Stat. § 46b-38aa et seq. supported civil unions. We opined that Connecticut courts therefore would likely recognize same sex civil unions entered into in other states. Because Connecticut’s legislatively expressed public policy at that time did not permit same sex marriages within this State, we opined that such unions would not be recognized. As a result of Kerrigan, the State’s public policy is that same sex marriages are valid. Under the Full Faith and Credit Clause the state now must recognize out of state valid civil unions and out of state valid same sex marriages.

Your final question asks whether a same sex couple must dissolve their civil union prior to entering into a same sex marriage with each other. Conn. Gen. Stat. § 46b-38bb prohibits an individual from entering into a civil union if he or she is already married, but there is no prohibition to marriage when an individual is already a party to a civil union. See Conn. Gen. Stat. §§ 53-190 and 46b-20 et seq.1 Accordingly, we conclude that unless the legislature changes the statutes, there is no law that requires a same sex couple to dissolve their civil union prior to marriage to each other.

We trust that the foregoing addresses your concerns.

Very truly yours,

RICHARD BLUMENTHAL

ATTORNEY GENERAL

1 One other state that has faced this issue is California. On May 15, 2008, the California Supreme Court ruled in In re Marriage Cases, 43 Cal. 4th 757, 183 P.3d 384, 76 Cal. Rptr. 3d 683 (2008), that California’s statutes denying marriage to same sex couples violated the California constitution. Prior to the issuance of In re Marriage Cases, California prohibited same sex couples from marrying, but permitted them to enter into domestic partnerships with the rights and benefits of marriage. Under current California law, a party to a domestic partnership may not enter another domestic partnership or a marriage with someone other than their registered domestic partner unless they have dissolved their existing domestic partnership. See Cal. Fam. Code § 298.5(c). California law does not require, however, that the parties to a domestic partnership dissolve their domestic partnership before getting married to each other.