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Connecticut Supreme Court Okays Same-Sex Marriage

Jim Burroway

October 10th, 2008

The Connecticut Supreme Court has ruled 4-3 that same sex couples are entitled to marriage (PDF: 591 KB/84 pages).

PALMER, J. The issue presented by this case is whether the state statutory prohibition against same sex marriage violates the constitution of Connecticut. The plaintiffs, eight same sex couples, commenced this action, claiming that the state statutory prohibition against same sex marriage violates their rights to substantive due process and equal protection under the state constitution. The trial court rendered summary judgment in favor of the defendant state and local officials upon determining that, because this state’s statutes afford same sex couples the right to enter into a civil union, which affords them the same legal rights as marriage, the plaintiffs had not established a constitutionally cognizable harm. We conclude that, in light of the history of pernicious discrimination faced by gay men and lesbians,1 and because the institution of marriage carries with it a status and significance that the newly created classification of civil unions does not embody, the segregation of heterosexual and homosexual couples into separate institutions constitutes a cognizable harm. We also conclude that (1) our state scheme discriminates on the basis of sexual orientation, (2) for the same reasons that classifications predicated on gender are considered quasi-suspect for purposes of the equal protection provisions of the United States constitution, sexual orientation constitutes a quasi-suspect classification for purposes of the equal protection provisions of the state constitution, and, therefore, our statutes discriminating against gay persons are subject to heightened or intermediate judicial scrutiny, and (3) the state has failed to provide sufficient justification for excluding same sex couples from the institution of marriage. In light of our determination that the state’s disparate treatment of same sex couples is constitutionally deficient under an intermediate level of scrutiny, we do not reach the plaintiffs’ claims implicating a stricter standard of review, namely, that sexual orientation is a suspect classification, and that the state’s bar against same sex marriage infringes on a fundamental right in violation of due process and discriminates on the basis of sex in violation of equal protection. In accordance with our conclusion that the statutory scheme impermissibly discriminates against gay persons on account of their sexual orientation, we reverse the trial court’s judgment and remand the case with direction to grant the plaintiffs’ motion for summary judgment.

On page 66 of the majority opinion:

Interpreting our state constitutional provisions in accordance with firmly established equal protection principles leads inevitably to the conclusion that gay persons are entitled to marry the otherwise qualified same sex partner of their choice. 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

The judgment is reversed and the case is remanded with direction to grant the plaintiffs’ motion for summary judgment and application for injunctive relief.

In this opinion NORCOTT, KATZ and HARPER, Js., concurred.”

UPDATE:Connecticut Governor Jodi Rell (R) has issued a statement:

I disagree with today’s State Supreme Court ruling but as governor, I will uphold it. I continue to believe that marriage is the union of a man and a woman.

I also believe that the historic civil union law that I proudly signed in 2005 is equitable and just. We were the first state to enact such a law through legislative action and not a court mandate.

The Supreme Court has spoken. I do not believe their voice reflects the majority of the people of Connecticut. However, I am also firmly convinced that attempts to reverse this decision – either legislatively or by amending the state Constitution – will not meet with success. I will therefore abide by the ruling.

UPDATE: Because this is a ruling that touches on state law and the state constitution, there is no recourse for appealing to the U.S. Supreme Court.

The Connecticut Constitution does not have an initiative process for placing a proposed constitutional amendment on the ballot. The Constitution however does mandate a question to be placed on the ballot every twenty years asking voters if they wish to call a constitutional convention. That question is now on the ballot this year. Opponents say they hope to use that ballot question to force a constitutional convention to change the constitution to allow for an citizen’s initiative process.

It is unclear right now what steps need to be made either in the courts, the legislature, or the governor’s office to allow same-sex marriages to become available.

Comments

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rusty
October 10th, 2008 | LINK

WOOO HOOO!

Jeff in Surprise, AZ
October 10th, 2008 | LINK

This is great but the timing is bad. This will just push the right to say, see if we don’t change the state constitutions the court will step in. Watch out CA, AZ & FL they’re coming for us.

Johno
October 10th, 2008 | LINK

The timing has been bad during every election for the past 8 years… funny how these decisions come down just in time to stir the pot.

AJD
October 10th, 2008 | LINK

I agree, the timing was bad for this. A wave of attempts to legalize same-sex marriage in 2004 was one of the reasons why Bush won and 11 states moved to ban it. I don’t think the court in Connecticut did the people in California, Florida and Arizona a favor. This is only going to feed the sense among anti-gay zealots of a domino effect.

Kevin
October 10th, 2008 | LINK

I’ll be the contrarian here and say that I think this is a great thing and it may even help defeat these anti-same-sex marriage initiatives as more and more Americans grow weary of the anti-gay antics of the Christian Right and begin to believe that same-sex marriage is an inevitable right that should be granted.

cd
October 10th, 2008 | LINK

Oh, calm down with the gloom&doom. There isn’t going to be significant backlash among voters, despite the noise the antis make: that has expended itself. It’s a good day, a glorious fall day here in New England. :-)

devlin bach
October 10th, 2008 | LINK

Either way it’s a fab day for Connecticut, and for all of us who believe in equality for all.

I do have a question: if Cali does pass Prop 8, what is the next step? I know it’s a gray area, but has anyone heard lately any comments about a plan B?

Thanks for posting this Jim. Not only did I do a big “yahoo!” outloud, it has also put a spring in my step and more sunshine in my day. :)

AJD
October 10th, 2008 | LINK

Kevin and cd: It’s not “gloom and doom” — it’s being realistic. I’m not assuming that Prop 8 will win while the Connecticut court’s decision will spur a wave of anti-gay bigotry as happened in 2004, but we also shouldn’t assume that everything will be fine and dandy.

True, a lot of people are getting sick of the religious right’s anti-gay activism, but a lot of people are still very much on their side. If the outlook was as positive as you guys say, every poll would indicate that Prop. 8 was set to lose by a huge, huge landslide, and the Connecticut Supreme Court’s decision would be unanimous and national polls would show Americans favoring same-sex marriage by a wide margin. Instead, No On 8′s own internal polls show that the pro-amendment side is ahead, and they’re taking in more money to boot.

Timothy Kincaid
October 10th, 2008 | LINK

First, congratulations to Connecticut!!

Second, It is a good thing for the overall drive for equality that there be a bit of an enclave of marriage and New England is a good place for it. And having two neighbors with marriage may well encourage New York to legislatively select marriage equality (which is not a radical notion after the election in November).

Third, I’m not sure that this is necessarily a negative for the California. It makes it seem less about wacky CA leftist politics and more mainstream. We’ll have to wait for polling.

Eddie89
October 10th, 2008 | LINK

This is AWESOME news!!! Congratulations Connecticut! Jim, thanks for posting the PDF link of the ruling.

I think that today’s rulling will actually HELP our cause in California, Arizona and Florida. How? Because voters will see that there are now 3 States that allow same-gender marriage and ask themselves “What’s the big friggen deal?” Let them get married!

In other words, open people’s eyes to the fact of reality, that our world is changing and they will either move forward with these changes and enjoy life or be stuck back in the 20th century and continue to discriminate against this minority.

Still, we MUST continue the FIGHT! At least now when I send my emails to my friends and family to vote “NO” on Prop. 8, Prop. 102 or Amendment 2 (depending on their locale) I can show them that now Connecticut allows same-gender marriage (as early as November of this year, some say)


California – Vote “NO” on Prop. 8!
Arizona – Vote “NO” on Prop. 102! AGAIN!
Florida – Vote “NO” on Amendment 2!

Eddie89
October 10th, 2008 | LINK

Also, Lambda Legal submitted an amicus brief to the Connecticut Supreme Court and the court stated the following concerning their brief:

In its decision, the Court said: “We agree with the following point made by the Lambda Legal Defense and Education Fund, Inc., in its amicus brief: ‘Any married couple [reasonably] would feel that they had lost something precious and irreplaceable if the government were to tell them that they no longer were ‘married’ and instead were in a ‘civil union.’ The sense of being ‘married’ — what this conveys to a couple and their community, and the security of having others clearly understand the fact of their marriage and all it signifies — would be taken from them. These losses are part of what same sex couples are denied when government assigns them a ‘civil union’ status. If the tables were turned, very few heterosexuals would countenance being told that they could enter only civil unions and that marriage is reserved for lesbian and gay couples. Surely there is [a] constitutional injury when the majority imposes on the minority that which it would not accept for itself.’”

I just had to share this!


California – Vote “NO” on Prop. 8!
Arizona – Vote “NO” on Prop. 102! AGAIN!
Florida – Vote “NO” on Amendment 2!

Eddie89
October 10th, 2008 | LINK

Tim hit the nail right on the head when he wrote:

Timothy Kincaid – “Third, I’m not sure that this is necessarily a negative for the California. It makes it seem less about wacky CA leftist politics and more mainstream.”

That’s what I was thinking, but I just couldn’t express it in words! My Honors English teacher from High School would be extremely upset with me! :-)

I mean, what could be more “mainstream” than Connecticut!!! I would never think of that State as “liberal” as California! Especially after the LA Times article stating that California leads the nation in LGBT rights!


California – Vote “NO” on Prop. 8!
Arizona – Vote “NO” on Prop. 102! AGAIN!
Florida – Vote “NO” on Amendment 2!

Adam
October 10th, 2008 | LINK

Just to clarify, the reason this decision is not reviewable by the U.S. Supreme Court is not because it partially implicates state law, but because it is wholly based on the state laws or the state’s constitution alone. In constitutional law terms, the decision rested on “Adequate and Independent State Grounds,” and the judges were never ruling on a federal question. Another, it’s great news, and another domino in the effort for full marriage equality for gays and lesbians across the country!

AJD
October 10th, 2008 | LINK

Adam, that is kind of encouraging, considering this means it’s safe from the hands of Scalia & Co.

Dave
October 11th, 2008 | LINK

What a coward the Connecticut governor is!

Gov. Bell believes the ruling is legally wrong, and also believes the people disagree with it. Yet he will allow the state’s constitution to be the Court’s plaything and enforce whatever it decrees.

The is very little political leadership in the United States today.

Timothy Kincaid
October 11th, 2008 | LINK

Dave,

Governor Rell has not indicated that she thinks that the court made its decision on other than sound legal reasoning. She has only indicated that she does not favor the ruling.

And she recognizes the rule of law and the separation of powers. Perhaps it would be useful for you to take a civics refresher.

Dave
October 11th, 2008 | LINK

Timothy,

When a governor, or president, or legislator criticises a court decision, I assume he is dealing with the court’s reasoning as it is the reasoning of a court ruling that counts.

I have no need of a civics lesson. And I certainly have no need of any such lesson from the likes of you.

What I wrote recognizes separation of powers; the Court does not have law enforcement authority, the governor does.

As for rule of law, there is none if the law is simply whatever the Court’s want it to be. Just as judges have a duty to rule against the unconstitutinal acts of the poltical branches, governors have a duty not to enforce the obviously improper rulings of courts.

Dave
October 11th, 2008 | LINK

People who think that the Connecticut Court’s recent ruling is a good thing for the cause of same-sex marriage should read B. Daniel Blatt’s on the matter.

The heart of Blatt’s argument:

“In 2004, the year after Massachusetts’ Goodridge decision mandating gay marriage in the Bay State, such propositions appeared on thirteen state ballots (eleven in November, two earlier in the year). They all passed by comfortable margins, even in such “blue” states as Michigan and Oregon.

“Two years later, however, after the highest courts in Washington and New York State respectively failed to mandate gay marriage, leaving such matters to state legislatures, initiatives and referenda on various state ballots saw much smaller margins of victory, with the draconian proposal in the Grand Canyon State defeated.”

devlin bach
October 11th, 2008 | LINK

Timothy K,

Could you please give my question above a shot?

Thx

Stefano A
October 11th, 2008 | LINK

The legislature, indeed, has law making authority; however, the separation of powers grants the constitutional interpretation of the legality of such laws to the Supreme Courts.

The Supreme Court Justices of both California and Connecticut were not being “activists” by applying strict interpretations of both states’ constitutions with, for example, the application of equal protections. What would have been “activist” would be for these justices to ignore their state constitutions on such matters.

Those who disagree with such interpretations like to try to blame these valid well-reasoned rulings based on strict application of the state constitutions so as to rationalize bigotry by claiming that the prejudice is really that of “the other”.

Those fighting to amend constitutions with such ballot measures as California’s Prop 8, Arizona’s 102 and Florida’s 2 know this to be the case, that they would impose their own intensely personal feelings or religious beliefs, which the state does not bestow, upon the important secular and legal rights and responsibilities concerning inheritance, parenthood, medical decision-making, tax benefits and liabilities, and on and on, that the state does bestow.

They know this, which is why there has been the mad rush to amend so many state constitutions. Those fighting to re-write constituions know that the state, when applying strict constitutional interpretations of the civil rights and responsibilities of extent constitutions have no legitimate reason to impose biblical meanings and are full aware that such imposition is in and of itself another area contrary to strict constitutional interpretations, when strict constitutional interpretations are applied as they were in California and Connecticut .

Without such constitutional amendments as 8, 102 and 2, they know full well they otherwise cannot get their personal religious beliefs institutionalized in legal codification. Because, while again, the legislature indeed has law making authority; the separation of powers grants the constitutional interpretation of the legality of such laws to the Supreme Courts.

Meanwhile, the use of such claims as “activist judges”, and fallaciouos claims of protecting “marriage” and “family” are made knowing full well that the reality is the interpretations are not “activist”, and that it is neither civil marriage rights or responsibilities the government (which does protect families) bestows but the imposed “protection” of their own personal feelings and religious biblical meanings which they wish to have imposed upon the secular law is the battle that they are fighting.

Such actions are not protecting families, the Constitution or the founding ideal of the United States’ system of democracy, which is the protection of the minority from the tyranny of a majority.

No, the real “activists” are those who wish to tear assunder both the ideals of constitutions being used to preserve and protect rights, and trample the founding corner stone of US democracy — the protection of minorities from the tyranny of a majority — to encourage constitutional reconstructionistism. The real “activists” are not the judges who have applied strict constitutional interpretation but those who wish to disregard and toss aside (or at least fein willful ignornace) of one of the strongest confered rights within the constitution. A right which has given themselves religious protection — even from sects within their own denominations who would impose differing biblical interpretions — and that constitutional reconstructionism is to do away with the exclusionary clause to inject biblical “meanings” upon secular institutions.
Such individuals may not even rightfully be referred to as constituting a “church” in the broader meaning of, for instance, the “Christian church”, as in such denominational context the “Christian church” is an inclusive group of all “Christians” and not only those which insist on strict qualifications for membership, which in such a context and with regard to constitutional reconstructionism are, indeed, rightfully referred to as a sect. A sect which attemps to purport itself as the “church”.
No, the Supreme Court justices of California and Connecticut which applied strict constitutional interpretations are not the “activists”. The “activists” are those individuals and sectarian groups which have much less in common with western democracy — which works for and has been devoted to preventing the tyranny of a majority over a minority — than they do with theocratic autocracies wherein it is not a single individual who welds the power but a singular religious sect.

The real “activism” in these so-called “culture wars” are those who wish to disregard the founding ideals of a democracy in order to employ constitutional reconstructionism.

=========
As an aside and to offer an opinion about the “toss off” abortion argument thrown in to muddy the waters, the problem with Row vs. Wade was not a matter of “activism” but constitutional interpretation i.e., the constitutional interpretations and the claims that the constitutional rights which informed the opinions were based upon the “wrong” rights “such as right to privacy” instead of “security of person” for instance.

Stefano A
October 11th, 2008 | LINK

Sorry about the missing paragraph spacings and the ommission of a closing italics tag.

Also, simply for clarification, with my above comment ” ‘such as right to privacy’ instead of ‘security of person’ ” I latched onto those two simply for illustrative purposes of contrast, not as points of an actual argument re: Roe vs. Wade

Stefano A
October 11th, 2008 | LINK

What I wrote recognizes separation of powers; the Court does not have law enforcement authority, the governor does.

The governor has limited legal authority over certain things, but they are not a party of the legislative or judicial branch nor law enforcement. They are a part of the executive branch.

Also, from the context of her quote, it was clear to all excepting those with reading comprehensiion difficulties that she made a clear distinction between personal “druthers” or feelings” which people would wish the court had ruled and not a commentary about the legality of the decision. Hence her having made it clear that “However, I am also firmly convinced that attempts to reverse this decision — either legislatively or by amending the state Constitution — will not meet with success.”

Which in itself discredits her claim that “I do not believe their voice reflects the majority of the people of Connecticut.” If that were so, she would believe that attempts to override legislatively or through constitutional amendment would not fail because it would have majority of approval.

Her recognition that “I will therefore abide by the ruling” acknowledges it’s legitimacy and also recognizes the founding belief of our democracy which is that while a majority may have it’s druthers, the mere fact of being a majority may not be used to act in tyrrany over a minority.

Dave
October 11th, 2008 | LINK

Stefano A,

“The legislature, indeed, has law making authority; however, the separation of powers grants the constitutional interpretation of the legality of such laws to the Supreme [Court].”

What is your point? Does the legislature have the right to force the governor to enforce an unconsitutional law? If not, then how does the court have the right to force the governor to enforce an unconstitional ruling?

My point is if the laws are not to be the playthings of judges — reduced to being whatever the judges want them to be regardless of what they actually say — then the poltical branches must be allowed judgment over the constitutionality of court rulings.

Both the California and Connecticut Supreme Courts strictly interpreted their state’s constitution? Really? Then please quote the places in both documents where it says that same-sex marriage must exist or opposite-sex marriage cannot.

Unless their constitions touched on the subject of SSM the courts have intervened in a social and legal controversy without constitional direction and thereby usurped legislative authority.

I did not throw Roe v. Wade in to “muddy the waters.” I used it as an example of judicial activism produced by Republican judges.

Dave
October 12th, 2008 | LINK

Stefano A,

I dealt with your first post, now for your third.

“The governor has limited legal authority over certain things, but they are not a party of the legislative or judicial branch nor law enforcement. They are a part of the executive branch.”

A governor is the chief executive of his state. As such he is the principle law enforcment official. The fact that a state’s attorney general may be independently elected doesn’t change this fact.

Law enforecement is part of the executive branch.

As I have already explained to Tim Kincaid, I assume the governor was dealing with the court’s reasoning. To simply state her druthers about the cases outcome without concern to the reasoning would be a silly and superficial move. Of course I may be giving the governor to much credit. In any event, let my congratulate you on your excellent reading comprehension that allows you to read minds.

Gov. Rell’s decision to abide by the ruling is not an acknowledgment of its correctness at all. It is a statement of her cowardice and lack of leadership as revealed by her own stated reasons.

Stefano A
October 12th, 2008 | LINK

There has been some posting problems on my part in so much as I have been posting with you in two different threads while mistakenly thinking the comments were attached to a single thread. That said…

… is your point? Does the legislature have the right to force the governor to enforce an unconsitutional law? If not, then how does the court have the right to force the governor to enforce an unconstitional ruling?

Who says the ruling was unconstitutional? You? That’s your assertion.

Neither the governor nor the state legislature can unilateraly uncontestably state the State Supreme Courts ruling was unconstitutional.

There is no higher legal recourse within the state for legal interpretation of the constitution or legislated law.

The Federal Supreme Court might be able to intervene, but the Connecticut Supreme court was not making a ruling with regard to the constitutionality of the Federal Constitution. Only the state constitution.

If the ruling had been by a lower state court regarding a legislated law, then the higher court could intervene and over-rule.

Look, I’m not going to try to argue which parts of government have what “powers” with you and who has what authority and who does not for the simple reason that I’m not well-educated myself enough on the bodies of government and it’s also somewhat an irrelevant argument that you’re trying to create.

I’ll be the first to admit my failings in “civis”.

But these accusations you are tossing around and assertions such as “the Supreme Courts ruling was unconstitutional” to paraphrase you and that they were legislating law is nothing more than an assertion or accusation at this point and one evidently being made simply because you don’t like their decision.

Not the least of which because they did not write or create a law. They did strike down a legislated law for constitionally based reasons.

If the SC’s ruling in California and Connecticut were both so unconsitutional as you contest, then the burden is now on you to PROVE how the ruling was unconsitutional. Not that you think it was simply an “activist” position because you disagree with the ruling or are asserting it was uncosntitutional because it overturned a popular legislated law, a law which was in and of itself being contested for its constitutionality and whose very constitutionality was being requested.

Again, neither in Connecticut nor in California did the SC “write” a law.

The court did not write a new law, it struck down a law designated as being unconstitutional. For ****’s sake, why
do you think people are now pressing so hard for the constitution to be amended?

Certainly not because they feel the current ruling was unconstitutional, but because they want to strip any constitutional basis for finding the legislated law (past) as unconstitutional and prevent (future) legislation of similar nature from being struck.

If the ruling itself were unconstitutional as you contest they wouldn’t need a constitutional amendment.

I don’t know for sure how it works, but one would think judicial impeachment proceedings would be implemented instead if the SC ruling were truling unconstitutional.

But how, based on the Connecticut and California constitutions, do you decide the SC rulings themselves were unconstitutional?

The governors and legislators and pundits may be grumbling because they don’t like the decision, and grumbling loadly because they don’t like the fact that as with racial segregation and separate but equal the “majority” didn’t get to dictate the civil rights a minority could expect, but I’ve not heard anyone other than you claim that the ruling itself was unconstitutional.

Both the California and Connecticut Supreme Courts strictly interpreted their state’s constitution? Really? Then please quote the places in both documents where it says that same-sex marriage must exist or opposite-sex marriage cannot.

This is a strawman and fallacious argument and you know it!

The constitution of neither state says anything specifically about marriage for anyone (as far as I know, excepting possibly with regard to inter-racial marriage). You know as well as I do the relevant constitutional sections regarding equal protection and benefits and related clauses were what was taken into consideration (among other considerations) along with a strict review to see if the state had a legitimate and compelling reason to deny state recognitions of one group being denied to others in similarly situated positions excepting their genders with regard to existing laws, not some new law the SC was then dictating.

The consideration of the biblical meaning of marriage (which is really what this “fuss” is all about for those opposing SSM) is totally irrelevant to the state in terms of that being a compelling reason.

And neither ruling was with regard to the Federal Constitution but the respective State Constitutions. Although the Federal Constituion may have informed the opinions.

So again, if you are going to claim the State SC ruling was unconstitutional the burden is now on you to prove it.

Evidently the Governor of Connecticut and California neither one felt this way. Oh but wait, they’re just cowardly, that’s right.

Also, don’t forget that California’s governor had the oportunity to make such a decision himself regarding the legislation but passed it off to the Supreme Court. In other words, he may have been cowardly, but at least he recognized the Highest State Court as being the final authority whether he liked it or not personally.

So again, if these state legislators aren’t crying “unconstitutional” ruling and seeking impeachments for abuses of judicial powers, then who are you to call the rulings unconstitutional and without any evidence other than your own personal opinions, dissatisfactions because you don’t like the outcome.

No. It’s so much simpler for you to just kick back and cry “acitivist judge”, “unconsitutional ruling” without providing any evidence to that effect at all.

The ruling was not unanimous across judges, so I am NOT CONTESTING that their was unanimous agreement among the SC judges on legal opinion. But that does not mean the ruling was unconstitutional. Rather it shows that the prevaling opinions were better argued and better founded on existing laws and precedents and thus more legallly persuasive to result in the votes that resulted from the considered opinions.

Stefano A
October 12th, 2008 | LINK

… anyway… to answer your question of “enforcement”…

I honestly don’t know in this instance what the protocol/procedure would be to contest the state SC’s ruling other than as I mentioned to possibly go to the Feds for a hearing. However, since neither the legislative or executive branches in California or Connecticut are refusing to abide by the SC’s legal opinions that seems like a moot argument other than being a legitimate question of academic curiosity.

Nothing comes to mind as an answer except for Federal intervention as previously mentioned.

I don’t forsee an action by either state such as calling out the military to enforce rulings such as the Feds did upon the states in the striking down of racist legislation they refused to implement, which I would think was probably a joint decision between the Federal Excutive and Legislative branches — or more probably a Federal Executive branch decision.

The only time I can think of otherwise when government bodies in this country refused to abide by legal rulings we ended up in a civil war.

Bottom line, I honestly don’t know the answer to your “enforcement” question.

Timothy Kincaid
October 12th, 2008 | LINK

Devlin,

I’m unaware of a Plan B. I would assume the battle goes on but shifts to a different battlefield.

Whether we retain our equal standing in California on November 4, I remain confident that popular opinion has shifted so strongly in the past few year and has every indication of continuing in the direction towards equality that it will be but a short time until another vote will occur to reverse and remove discrimination from our constitution.

In the meanwhile, there may be other action that can be taken. I’m not certain.

Timothy Kincaid
October 12th, 2008 | LINK

As for rule of law, there is none if the law is simply whatever the Court’s want it to be. Just as judges have a duty to rule against the unconstitutinal acts of the poltical branches, governors have a duty not to enforce the obviously improper rulings of courts.

This is laughable.

What exactly do you envision? Are you supposing that Jodi Rell could order the county clerks not to provide licenses and that the registrars not record them?

And when clerks were uncertain what to do, they’d turn to their counsel who would without exception advise that they follow the court ruling.

And what would Rell do when the clerks and registrars didn’t follow her command? Sue them in court?

Perhaps that would work in Magic Pixie Land or your fevered imagination but the glue that holds government together is that each branch respects and observes its own limitations.

Rell will not defy this ruling of the courts nor, indeed, any other. And not due to some lack of courage or conviction, but because she knows that she is not Queen but a servant of the public.

Devlin Bach
October 12th, 2008 | LINK

Thanks for your input Timothy. Much appreciated.

Jason D
October 12th, 2008 | LINK

“Both the California and Connecticut Supreme Courts strictly interpreted their state’s constitution? Really? Then please quote the places in both documents where it says that same-sex marriage must exist or opposite-sex marriage cannot.”

Dave you really show off your ignorance about how this country works.

if you’re looking for us to quote the “same sex marriage” section of the constitution, there isn’t one. Nor is there a marriage section, or a cellphone section, or a section on baseball caps. The constitution is not now, nor was it ever intended to be an exhaustive list of specific rights.

You also don’t seem to understand what the constitution is for. It is not a billy club in which to beat people, it is actually a shield to keep both the government, and the majority of voters from disenfranchising unpopular minorities. The whole purpose of this document is to make sure no matter the political weather, everyone is safe. Even gays.

The onus is not on us to show you where the constitution says it’s okay for gays to marry, the judges did that in their ruling. The onus is on you to explain how equality under the law does not apply to gay people.

“judicial activism” is a buzzword for people who didn’t pay attention in civics class and think the government is in place to protect them from people and concepts that they find icky.

Dave
October 13th, 2008 | LINK

Stefano A,

“There has been some posting problems on my part in so much as I have been posting with you in two different threads while mistakenly thinking the comments were attached to a single thread.”

I haven’t noticed any problem at the other thread, so don’t sweat it. ;)

“Who says the ruling was unconstitutional? You? That’s your assertion.”

Not quite. While I am skeptical in the exteme about the ruling, it was Gov. Rell herself who said she disagreed with it. I have explained above (repeatedly) why I take such critiques to be directed at a legal opinion’s reasoning and not its outcome; the only conclusion I can come to is she considers the opinion to be an abuse of the Connecticut Constitution. Got it?

“Neither the governor nor the state legislature can unilateraly uncontestably state the State Supreme Courts ruling was unconstitutional.”

Says who? I assure you that the political branches have more than enough power and authority to counter the Supreme Court if they so choose. If for instance they wanted to cut off funding for the Court, or for any office in the state that attempted to carry it its ruling, the Court would be powerless to stop them.

“There is no higher legal recourse within the state for legal interpretation of the constitution or legislated law.”

There is no higher recourse within the judiciary. But this should not relieve the political branches from their duty to act as checks and balances on the judiciary.

If you have an explanation for how executives and legislatures can be proper checks against unconsitutional actions by the judiciary while slavishly obeying all the judiciary’s rulings on constitutional matters, I would very much like to hear it. (This goes for anyone else who posts comments at this blog.)

“Look, I’m not going to try to argue which parts of government have what “powers” with you and who has what authority and who does not…”

I’m glad to hear this, Stefano, but up to this point you could’ve really fooled me! But given what follows this statement you go right back to fooling me.

“for the simple reason that I’m not well-educated myself enough on the bodies of government”

I do wish you’d remember that.

“it’s also somewhat an irrelevant argument that you’re trying to create.”

NO IT IS NOT! It is the very heart of my argument. For you, for Kincaid, for just about everyone else here at BTB this is all about the place of homosexuality in American culture and law. For me it is about the proper function of the judiciary in American government. The gay rights aspect is irrelevent.

“these accusations you are tossing around … [are] evidently being made simply because you don’t like their decision.”

Are you so sure of that, Stefano? Could’nt it be that your certitude about the legal correctness of these decisions stems from your approval of their results?

“the burden is now on you to PROVE how the ruling was unconsitutional.”

My God! You people just can’t stand to be challenged in any way, can you? In two threads filled with hoorays over a court’s mandate of SSM I hint at my skeptism of the legal propriety of the ruling. Do those who jump for joy at what the courts in California and Connecticut did have to prove those rulings were correct? NO. Only the one skeptical voice is asked to bear this burden. And how am I to fulfill this requirement? It’s doubtful you’ll accept any case I make because you don’t want to.

For now let me say that it is extremely difficult to believe that constitutions originating long ago in a country devoid of any history of legal accomdations for gay couples could possibly require that same-sex marriage be equated with opposite-sex marriage.

“This is a strawman and fallacious argument and you know it!”

Like hell it is! I’m sorry, Stefano, but you have no understanding of what those of us who want judicial restraint view as the proper role of the courts.

Whenever a court intervenes in a social or political controversy without clear and specific direction from the written law that court has exceeded its authority.

With respect to the issue of SSM, marriage in our country has always been a union that is consumated by engaging in the reproductive act. A same-sex couple cannot engage in this act. In order to require “marriage equality” a court must either change the consumation requirement for opposite-sex marriage, or create a brand new form of marriage for same-sex couples. Either way the court has acted as a legislative body.

Enough said.

Benjamin
October 13th, 2008 | LINK

Dave, the courts did prove that the ruling was constitutional. Also your hollow argument that same gender couples should not be allowed marriage because they cannot reproduce doesn’t hold water. If that were the case then women who have had hysterectomies or men who are sterile or couples who get married after childbearing years would not be allowed to get married. Your argument is baseless. Enough said. You obviously have a bigoted axe to grind otherwise you would not be so didactic and dogmatic in your approach to the Court’s decision. Your response sounds like a typical Neocon Republican who says that courts are “legislating from the bench”. Fortunately the majority of the Repubs are on their way out the door. They can’t leave too soon as far as I’m concerned.

The bottom line is what our Founders intent was regarding human rights. They never once dreamed of the Constitution keeping the basic rights of marriage from a minority group. The intent of the court is to extend that right to same gender couples including those who have adopted children and who have children from previous relationships (i.e. heterosexual marriages, etc.).

Dave
October 13th, 2008 | LINK

Jason D,

You are insulting. I know perfectly well how this country works, and unlike you I know how its governments are supposed to work.

The points you raise are dealt with in my reply to Stefano A. I will not repeat them.

I will say that judicial activism is not a mere buzz word for “for people who didn’t pay attention in civics class.” It is phrase used by people who want the courts to play their proper role and not act as legislatures. This concern goes back as least as far as Thomas Jefferson. If you don’t know this you shouldn’t be calling others ignorant.

Dave
October 13th, 2008 | LINK

Benjamen,

[Edited for violations to the Comments Policy]

I said the gay rights aspects were irrelevent. I made no argument about gay couples being unable to reproduce. I made a legal argument about the differnces between what a same-sex marriage must be and how an opposite-sex marriage has always been defined.

[Edited for violations to the Comments Policy]

Timothy Kincaid
October 13th, 2008 | LINK

Unlike Dave, the rest of us do not advocate for anarchy whenever we do not like a judicial decision. I did not insist that the decision in New York was “unconstitutional”, though I personally find it to be contrary to my understanding of the New York State Constitution.

So for Dave to insist that those decisions with which he disagrees are “judicial activism” and “unconstitutional”, and then to insist that it is we who are illogical strikes me as both sour grapes and a less than principled thinking on this matter.

Timothy Kincaid
October 13th, 2008 | LINK

Benjamin,

Please keep in mind that this is not an anti-Republican site. If you wish to post anti-Republican comments, do it elsewhere. Thanks.

Dave
October 13th, 2008 | LINK

Kincaid,

Nice one. You are such a gentleman. I never accused you of supporting tyranny by applauding courts for removing a matter from the people. Of course if I had you probably would have accused me of making an ad hominem attack. Yet you blithely accuse me of supporting anarchy. (Not going to delete part of your own comment now are you?)

Just like you can say I have a “fevered imagination” without violating the comments policy, but I can’t ask a question about the maturity of my fellow commenters. Do you know the meaning of the word “hypocricy,” Kincaid? Hmmm? Just wondering.

Instead of accusing me of advocating anarchy, why don’t you answer my question:

Explain “how executives and legislatures can be proper checks against unconsitutional actions by the judiciary while slavishly obeying all the judiciary’s rulings on constitutional matters”?

And instead of accusing me of unprincipled thinking and sour grapes tell me:

— How it isn’t judicial activism ” whenever a court intervenes in a social or political controversy without clear and specific direction from the written law.”

— How “constitutions originating long ago in a country devoid of any history of legal accomdations for gay couples” came to equate traditional opposite-sex marriage and same-sex unions. Did they change on their own?

— Since “marriage in our country has always been a union that is consumated by engaging in the reproductive act,” how can a court require SSM recognition without acting like a legislature?

Stop treating me like an anti-gay bigot or some self-hating homosexual and start taking my concerns seriously, Kincaid.

Stop attacking me pesonally and start dealing with the points I honestly and fairly raised.

[Edited for violation of the Comments Policy]

Stefano A
October 13th, 2008 | LINK

Finally! The answer to my question about the “germaineness” of sexuality. Herein you do, indeed, state what I have been saying you were implying all along but that you kept denying… that you are imposing procreational purposes and biblical meanings upon the institution.

I made no argument about gay couples being unable to reproduce. I made a legal argument about the differnces between what a same-sex marriage must be and how an opposite-sex marriage has always been defined.

marriage in our country has always been a union that is consumated by engaging in the reproductive act. A same-sex couple cannot engage in this act.

You are not making a legal argument.

You are making an emotional argument for social tradition, traditions based on biblical meanings for marriage.

There is not in the history of the US and not today any legal stipulation that one must engage in reproductive acts or be capable of reproduction in order to marry.

There is no fertility test applied to be eligible for marriage. There are only four (4) means tests applied.

Family law currently allows marriage based on the conditions that the couple are:
1) over the age of consent;
2) opposite sex,
3) not within a particular degree of consanguinity, and
4) neither individual applying to marry is already married to another.
These are the only means tests placed upon an application to marry and for governmental recognition of that union — aside from a tangential condition that they are deemed mentally competent which is not a stipulation or means test only reserved for marriage but for entering into any legal agreement.

The government does not currently place a test of fertility upon those applying for marriage so to argue that this should be a prerequisite condition for SS couples to marry is fallacious and does not take into account contemporary alternative methods for reproduction if SS couples so choose to avail themselves of those alternative methods. (Nor does it take into account SS couples who already may have biological or adopted children from previous relationships any more than that is a current consideration for eligibility to marry for MF couples.)

To insist that the government place a condition on marriage that the couple be of opposite sex based on the premise that procreation is the purpose of marriage while not performing fertility testing to ensure the condition is met and the couple can indeed procreate or have the potential to procreate in a traditionally biological manner is, indeed, discriminatory toward SS couples in so much as it is not taking into account any existing children, the ability of the SS couple if they so chose to avail themselves of the same alternative reproductive methods available to sterile MF couples and in so much as nonsterile MF couples are not required to procreate to be eligible for marriage. The government poses no means test to ensure procreation occurs either before or after marriage. The change here being requested by SS couples is that the family law be amended so similarly situated individuals who can otherwise pass all of the other means tests to marry have their unions recognized and that the condition of #2 (opposite sex based upon a premise of procreative ability or potential ability) be changed to two consenting adults who meet conditions #1, #3 and #4 of the family law as a fertility means test is not one of the existing means test for any marriage.

With regard to this portion of your comment

…a union that is consumated by engaging in the reproductive act….

The only time that this has been any type of means test (whether or not a marriage had been consumated by sexual intercourse) was in the dissolution or annulment of marriage. And even then the means test was not one of whether or not children had been conceived nor if the partners were even fertile. And that means test stemmed from the biblical values placed upon female virginity. And the value of female virginity was directly related to the females’ value as undamaged property, the determination of dowery price and whether or not or how much of a dowery would have to returned.

Stefano A
October 13th, 2008 | LINK

And, Dave, while you continue to assert that the courts acted unconstitutionally, and since you consider yourself to be the sole voice of authority on that matter around here, instead of asking us to explain why don’t you educate us?

how executives and legislatures can be proper checks against unconsitutional actions by the judiciary while slavishly obeying all the judiciary’s rulings on constitutional matters”?

So! What is the answer?

How DO THEY?

Dave
October 13th, 2008 | LINK

“You are not making a legal argument.

“You are making an emotional argument for social tradition, traditions based on biblical meanings for marriage.”

If you honestly think that, Stefano, there is no point in my continuing to dialogue with you.

It is not pleasant to be called a liar, but I know you don’t intend any malice toward me so I’ll let it go.

Good-bye.

Stefano A
October 13th, 2008 | LINK

BTW: While you’re at answering that question…

You have kept insisting to me personally that you have not said these rulings were unconstitutional, but time and time again you keep implying that they were.

So, while you are educating us on the above question, also please educate to me as to how EXACTLY AND EXPLICITLY the justices did not act within the constitution?

In other words, upon what grounds (factual, specific) would either the executive branch or legislative branch found their accusations that these judicial rulings were unconstitutional?

Because it does, indeed, seem to me you are asserting that they are because you did not like a majority vote. Completely ignoring as I have pointed out previously, the legal opinions were presented by 7 justices. Three of which discented from the majority opinion. And I mention this to point out that the court did rule as a single mind but within the confines of a democratic vote which occured after legal discussion.

Stefano A
October 13th, 2008 | LINK

Whoops…

I meant to say “mention this to point out that the court did [not] rule as a single mind…” but by democratic vote.

As Timothy said, it does indeed smell of sour grapes on your part that the discenting justices had not been more persuasive in their legal arguments and so now you are thus looking for a means to overthrow the court.

And also as Timothy has mentioned, I did not agree with the Maryland supreme courts majority opinion but found that the discenting justices in Maryland had made the more persuasive legal argument. But I nevertheless respected the majority rule has having abided by the rules of the court for now. However, I do not assert their behavior as a court was unconstitutional and the ability to again challenge their legal decision at some later date remains an option.

Just as how the Federal USSC rulings have at times been made, challenged, and reversed. As with segration laws for example.

Timothy Kincaid
October 13th, 2008 | LINK

Dave,

Explain “how executives and legislatures can be proper checks against unconsitutional actions by the judiciary while slavishly obeying all the judiciary’s rulings on constitutional matters”?

An unconstitutional act of the judiciary would be one in which the courts took action unauthorized by the constitution. The determination of the constitutionality of a law is the expressed perview of the court and is by definition not an unconstitutional act.

How it isn’t judicial activism ” whenever a court intervenes in a social or political controversy without clear and specific direction from the written law.”

The courts apply principles to law, not follow the written word of the law. It is the responsibility of the court to address laws – particularly those that deal with social and political controversy. That, Dave, is what a judge does.

Sure a circuit court judge applies the laws of the legislature to Joe Citizen to see if he has truly broken the automotive code. But a constitutional jurist applies te principles of the Constitution to Joe Legislature to see if it has broken the principles within the Constitution. I don’t think I can explain this any clearer.

No one – other than perhaps yourself – is questioning whether the courts rightly addressed this law. It is only “judicial activism” to those who do not like the outcome.

How “constitutions originating long ago in a country devoid of any history of legal accomdations for gay couples” came to equate traditional opposite-sex marriage and same-sex unions. Did they change on their own?

The nice thing about principles is that they can apply to unanticipated situations.

Since “marriage in our country has always been a union that is consumated by engaging in the reproductive act,” how can a court require SSM recognition without acting like a legislature?

I do not accept your assertion that marriage has “always been” about the insertion of tab a into slot b. Marriage has never truly been a license to copulate in this country other than during some early colonial periods.

If you wish to believe that the essence of marriage is copulation and that the particular orifaces involved are the driving issue then you, of course, may do so. But I do not wish to see my civil government replaced with a fertility cult and will fight your efforts to do so.

Dave
October 13th, 2008 | LINK

Kincaid,

You state:

“An unconstitutional act of the judiciary would be one in which the courts took action unauthorized by the constitution. The determination of the constitutionality of a law is the expressed perview of the court and is by definition not an unconstitutional act.”

So the “determination of the constitutionality of a law is the expressed perview of the” judiciary? I don’t know what the California or Connecticut (or the New Jersey or Massachusetts constitutions either) say about that. But I have to wonder about this “expressed perview” business. Judicial review of laws was invented by the federal judiciary because it seemed (quite reasonably I admit) to be a judicial power implied by the federal constitution. There was not expressed perview of the courts involved.

Anyway, your attitude states that no constitutional ruling by any court can ever be considered wrong by anyone — except the court that issued it.

To this I reply: horsefeathers. If a supreme court ruled that its governing constitution considered homosexuals to be non-persons, would you expect executive and legislative officials to abide by said ruling? I think not. So spare me your hypocricy. The one playing the results are the thing game here is you.

Although my own thoughts on the issue are irrelevant, you have never bothered to ask me what I think about the legal recognition of gay couples. Not once. You are too absorbed in the self-pitying self-righteousness typical of leftist activism to bother.

“The courts apply principles to law, not follow the written word of the law.”

Wrong. Courts apply principles to cases, not to laws. These principles are supposed to originate with the written laws and are supposed to be neutral.

And you said I was “often ill informed”? It is to laugh.

I did not say that the essence of marriage was copulation. That is a deliberate distortion of what I wrote. I’m sorry, Timothy, but I’m too smart for such sophistry to work on me.

If you think that having civil governments that recognize only traditional male-female unions as marriages is the imposition of a fertility cult, then your problem is with the founding generation of the United States, not with me. (Be sure to spread this news while you campaign — I’m sure it will make you very popular.)

As for me, I think if a the people of a state want same-sex marriage that is their right. But I also think that if the people of a state don’t want SSM that is their right. And no court has the authority to replace the people’s will with its own.

The consideration of the individual’s sex is decidedly neither arbitrary nor capricious when what you are attempting to define and regulate is a sexual relationship.

Stefano A
October 13th, 2008 | LINK

Brilliant:

As for me, I think if a the people of a state want same-sex marriage that is their right. But I also think that if the people of a state don’t want SSM that is their right.

Using this line of logic, when the courts ruled in Loving vs Virginia (and every other civil righs case that set precedent) every racial supremacist in the land ought to be able to vote against it.

Stefano A
October 13th, 2008 | LINK

And has been stated before, yes the courts have made rulings that stood for long periods of time until being re-challenged.

In Pace v. Alabama, for instance, the Supreme Court ruled that the conviction of an Alabama couple for interracial sex, affirmed on appeal by the Alabama Supreme Court, did not violate the Fourteenth Amendment.

Now, several years later as society as evolved, that ruling seems archaic.

But, my point is that, while a ruling may be abided by, that does not mean it will never be challenged.

If you don’t like the ruling of the CA or CT court, find yourself an attorney and file to challenge the ruling.

Timothy Kincaid
October 13th, 2008 | LINK

Although my own thoughts on the issue are irrelevant, you have never bothered to ask me what I think about the legal recognition of gay couples. Not once.

You finally caught on to that, did you?

Stefano A
October 13th, 2008 | LINK

In other words, if you’re going to claim that the courts acted “unconstituionally” and that somehow your rights were violated, then demonstrate exactly what rights of yours were impacted and how.

Not a single individual afforded the rights to marriage in this case has had their rights or responsibilities affected.

And, please, don’t try to go down the “Freedom of Religion” road, because this ruling did not speak to any rights of the church with regard to internal relgious dogmas or theology or dictate in any other way what a religious sect of any denomination must do (or not do for that matter).

Stefano A
October 13th, 2008 | LINK

Not a single individual [previously] afforded …

Stefano A
October 13th, 2008 | LINK

Ya, know. I think I’m finished with this discussion.

Mainly because every argument Dave has made is in support of allowing a majority to tyrannize a minority.

He seems to discount in his focus on same-sex marriage, that his arguments must also apply to every other legal decision and that he is arguing for the abolition of one of the central foundations of our form of democracy which has been developed (or at least evolved into) attempts to specifically prohbit the ability of populist majorities to tyrannize a minority.

We don’t have a democratic form of government wherein we go by strict majority rule.

Evidently Dave wishes we did.

Stefano A
October 14th, 2008 | LINK

The consideration of the individual’s sex is decidedly neither arbitrary nor capricious when what you are attempting to define and regulate is a sexual relationship.

The sexual relationship is NOT being regulated. That would be the issue of Lawrence vs. Texas or instances such as Pace v. Alabama.

Loving v. Virginia already also negated that argument as an additional part of what Loving was arrested for in that case was for interracial sex in conjunction with inter-racial marriage.

Again, in the Connecticut and California rulings, the only compelling state interest for taking the nature of the sexual relationship regarding into marriage into consideration would be to impose fertility means testing, and/or the imposition of biblical meaning upon marriage being only for procreational purposes.

Stefano A
October 14th, 2008 | LINK

BTW: I’m simply adding some afterthoughts.

Another thing to keep in mind, is that at least in California (I’m unsure of Connecticut) the SC opinions were not formulated simply by review of constitutional law, but also bearing in mind both the state constitution and existing laws, for instance, in California, other state laws informing the decision were sexual-orientation antii-discrimination laws.

Stefano A
October 14th, 2008 | LINK

The sexual relationship is NOT being regulated. That would be the issue of Lawrence vs. Texas or instances such as Pace v. Alabama.

Additionally, there is no mandate in family or marrital law that you even have to have sexual relations with your married partner or that you have to be married to have a sexual relationship.

Although granted, in some jurisdictions the withholding of sexual affections has been used as grounds for divorce.

Stefano A
October 14th, 2008 | LINK

Hell, for that matter re: the regulation of the sexual relationship of marriage, there’s not even a mandate that a married couple has to be monogamous, only that a marriage can’t be polygamous.

Stefano A
October 14th, 2008 | LINK

One last afterthought re:

The consideration of the individual’s sex is decidedly neither arbitrary nor capricious when what you are attempting to define and regulate is a sexual relationship.

What is being defined is a form of familial relationship, not the sexual relationship.

Dave
October 14th, 2008 | LINK

My God, Stefano!

Just what about “good-bye” did you not understand?

I go against my earlier judgment by dealing with you again at all; this will be the very last time.

You are a perfect example of the sort of ideologue that cannot be reasoned with. You cannot stand that anyone would disagree with you in the slightest.

Anyone who thinks the gay left is any less dogmatic, intolerant, angry, and authortarian than the Christian right needs only to look at this site to be proved wrong.

My position is simple: Courts should not take positions on matters unless the law does so.

There are many possible positions on the legal recongnition of same-sex couples. As long as a state’s constitution remains neutral amongst these various positions, its judiciary must remain neutral also.

You can blather about the oppression of minorities by majorities all you want; the actual protections we enjoy in this country from government oppression — like freedom of speech and religion — were democratically enacted.

Stefano A
October 15th, 2008 | LINK

The California and Connectcut state Supreme Courts examined the respective states Domestic Partnership Laws and sexual-orientation anti-discrimination laws.

The courts ruled that Domestic Partnership laws neither conformed to the respective state constitutions equal protection clauses nor conformed to the states’ anti-discrimination laws.

Poor, Dave. How it burns his butt that neither court would apply one set of constitutional principles to laws effecting homosexuals and another to all others.

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