The American Spectator

The Public Policy

Inferiority Redefined

By William C. Duncan on 10.14.08 @ 6:04AM

Connecticut has become the third state where a high court has ruled that a hitherto unknown (and still unwritten) provision of the state's constitution mandated redefining marriage to include same-sex couples. Like California, the state legislature had already provided all of the benefits of marriage to same-sex couples but four of the state supreme court's seven judges felt that the inability of same-sex couples to claim the status of marriage itself consigned them to "an inferior status."

The court's reasoning was that the class of people identifying themselves as gay or lesbian was politically powerless and thus all laws affecting this class had to be treated with heightened suspicion by the court. This shifted the burden of proof to the state to show that the marriage statute had a really good justification and the court concluded that the state had not done so (it had not really made a robust effort to do so in any event).

Ironically, the "political powerlessness" diagnosis by the court would seem to have been undercut by the fact that Connecticut was one of very few states to create an alternative legal status for same-sex couples that provided all of the incidents of marriage. As one of the three dissenting justices noted, the court majority actually used this fact to argue for the opposite conclusion. The majority said the enactment of a civil union status showed that same-sex couples were so disadvantaged they had to have a special status created for them. The dissent pointed out that if the legislature had not created civil unions, the majority could have used the lack to show political powerlessness. The majority's opinion thus looks like a result in search of a rationale.

THE CONNECTICUT DECISION to redefine marriage comes when three states, California, Arizona and Florida, are considering measures on their November ballots that would provide constitutional protections to their legal definitions of marriage as the union of a husband and wife. Unlike these states, however, Connecticut has no mechanism for amending its constitution by initiative, so citizens of the state are powerless to respond directly to the decision in the short run.

The California vote is particularly significant because that state's supreme court had redefined marriage in a May decision. That California decision was relied on heavily by the Connecticut court in support of its reasoning (such as it was).

The Connecticut court also relied heavily on the 2003 U.S. Supreme Court decision in Lawrence v. Texas, invalidating the few existing state sodomy prohibitions. For the Connecticut judges this decision was relevant because it advanced the idea that constitutional principles change and can emerge over time, often ex nihilo.

The common thread running through the decision is that the court sees itself as the body uniquely qualified to determine what marriage ought to mean in Connecticut. It feels unconstrained by the rejection of redefinition by the legislature in 2005, by the lack of legal precedent for its decision, and by the lack of textual support in the state's constitution.

On reading the decision, it seems clear that the really politically powerless group in Connecticut is the majority of citizens who believe marriage should remain a social institution uniting men and women in the interests of the future, rather than a vehicle the state can use to dole out recognition and esteem to committed adult relationships.

THERE IS A GLIMMER of hope for this group, though. On the November ballot in Connecticut is a proposal that would authorize a constitutional convention to revise and amend the state's constitution (by law this provision is on the ballot every twenty years). If approved, presumably the state constitution could be amended to include some sort of protection for marriage, either a definition or a mechanism for initiative amendments that would then be used for a marriage amendment.

Power brokers in Connecticut vociferously oppose a constitutional convention and have poured enormous funds into the campaign in opposition. Perhaps they believe the easier route to constitutional change, through litigation, is enough for now.

A powerful psychological tool of the groups seeking a redefinition of marriage is the sense of inevitability. A series of state high court decisions in favor of our inherited understanding of marriage following the 2003 Massachusetts court redefinition, coupled with the enactment of state marriage amendments in the majority of states suggested that same-sex marriage is not inevitable for the U.S. Two consecutive state court cases may have created the appearance of a new trend, but voters this November may very well be able to make this merely a passing fad.

Letter to the Editor

topics:
Constitution, Law, Supreme Court, Unions