Friday, October 10, 2008

Unelected Connecticut Supreme Court Judges Impose Gay Marriage On The State By Judicial Fiat, 4-3; Strengthens Case For California Proposition 8

Connecticut became the third state in the United States to legalize gay marriage when the Connecticut Supreme Court, by a 4-3 vote, ruled that civil unions were an unsatisfactory substitute. Massachusetts and California have also legalized gay marriage, although California's Proposition 8, if passed, would restore the traditional definition of marriage in that state. The most detailed story on this decision comes from the Hartford Courant, which is the state's leading newspaper. Other stories published by OneNewsNow, CNN, ABC News, the New York Times, and the Connecticut Law Tribune.

Index to all previous Hartford Courant stories on this issue HERE.

The Court released its historic ruling at 11:30 A.M. on October 10th, 2008. Citing the equal protection clause of the state constitution, the justices ruled that civil unions were discriminatory and that the state's "understanding of marriage must yield to a more contemporary appreciation of the rights entitled to constitutional protection."

"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," the majority wrote. "To decide otherwise would require us to apply one set of constitutional principles to gay persons and another to all others."

Click HERE to review 85-page majority decision in PDF format.
- Justice Borden's dissent HERE
- Justice Vertefeuille's dissent HERE
- Justice Zarella's dissent HERE

In one of the three separate dissents, Justice Peter Zarella said any decision on gay marriage should be left to the legislature, which approved civil unions in 2005 but has been reluctant since then to go further. "The ancient definition of marriage as the union of one man and one woman has its basis in biology, not bigotry," Zarella wrote. "If the state no longer has an interest in the regulation of procreation, then that is a decision for the legislature or the people of the state and not this court."

Justices Flemming L. Norcott Jr., Joette Katz, Richard Palmer and Appellate Judge Lubbie Harper, sitting for Chief Justice Chase T. Rogers, who recused himself, formed the majority. Justices David M. Borden and Christine Vertefeuille joined Zarella in dissenting.

Connecticut Governor M. Jodi Rell said she disagreed with it, but would uphold it. She said she was proud to sign the state's civil unions law in 2005, the first in the nation enacted without a court mandate, and thought it was equitable and just. "The Supreme Court has spoken," Rell said. "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."

Attorney General Richard Blumenthal, whose office represented the state in the case, said the decision, which takes effect October 28th, "must be respected" and cannot be appealed to the U.S. Supreme Court because it was based on the state constitution. "My office is reviewing the decision to determine whether any further action is necessary to conform our laws and procedures to the state Supreme Court's ruling," he said. [Ed. Note: Time for a constitutional amendment in Connecticut, then.]

Pro-gay State Sen. Andrew J. McDonald praised the ruling, calling it a bright day for Connecticut and all her citizens. He said the legislature must now take steps to clarify state law to comply with the court's ruling. This step appears necessary before bureaucrats begin issuing marriage licenses.

Opponents were obviously disappointed in the ruling. "The court has just usurped democracy in Connecticut and redefined marriage by judicial force,'' said Peter Wolfgang, executive director of the Family Institute of Connecticut.

The opposition will now turn its sights to the November election, when voters will be asked whether the state should convene a constitutional convention. "Connecticut voters will have one opportunity on November 4th to reassert their right to self government. We must vote yes". Advocates of a constitutional convention believe it will make it easier to craft and field a statewide popular referendum on marriage.

The case originated back in 2004. Unsatisfied with the civil unions, eight same-sex couples had brought the case, Kerrigan v. the state Commissioner of Public Health, after they were denied marriage licenses in 2004 by the Madison town clerk, who was following instructions issued by the state attorney general's office. The state, arguing that civil unions already provide all the rights and protections of marriage, prevailed in a Superior Court ruling in July 2006. The couples appealed the ruling to the Supreme Court, which heard three hours of arguments on the case in May 2007.

The Boston-based Gay & Lesbian Advocates & Defenders law firm representing the couples pursued numerous legal arguments, contending that same-sex marriage was both a fundamental right and guaranteed under the ban on sexual anti-sexual discrimination in the constitution, despite the fact that marriage is not a formally-specified right in the U.S. Constitution.

Commentary: Apparently anticipating the Connecticut decision, the Church of Jesus Christ of Latter-day Saints has called on its members to advocate even more vigorously on behalf of California's Proposition 8, which would simply amend the state's constitution to define marriage solely as being between one man and one woman. As of October 8th, it is estimated that Mormons have donated $19 million of the total $25 million given to the Yes-On-8 campaign, while opponents of Proposition 8 have raised just under $16 million. But it's not just a Mormon thing; people from other denominations and faiths, and even the unchurched, have joined in this campaign to defend traditional marriage. Both the ProtectMarriage and the Preserving Marriage websites are good sources of information to wage this campaign successfully.

And the campaign to pass Prop 8 seems to be working. A recent poll by the "No" group shows Prop 8 leading by four points, while a San Francisco T.V. poll shows 47 percent support Prop 8 and 42 percent oppose it.


  1. It's interesting that one of the dissenting judges applied the "marriage is for procreation" logic considering far more infertile, old age or other biologically plagued heterosexuals couples are allowed to marry when there is no change of procreation. Ha! And he said biology, not bigotry. I think he meant hypocrisy...
    It's also funny to hear anti-gay marriage advocates complain they have lost their right to "self-govern". Sorry, when you make laws that are discriminatory and supported by the majority, it takes a court to strike them down. Just ask the blacks in the states that had majorities that overwhelmingly supported Jim Crow laws and other discrimination against minorities. We don't seem to see any empathy for the citizens of those states who demand to reinstate the Jim Crow era, why would this be any different? Discrimination is discrimination, and it doesn't matter what your religion says about it either.

  2. Anonymous - the real underlying issue isn't religion. It's whether or not one believes that marriage is a "right". Since it is not clearly identified as a formally-specified right, I do not accept is as a right.

    Thus, if we want to make it a formally-specified right, it should be done legislatively.

    BTW, comparing this case with Jim Crow laws is invalid. Jim Crow laws imposed restrictions on where blacks could live, work and vote. Gays have no such restrictions.

  3. The comparison is to a discriminatory law. It doesn't matter how that law discriminates, the bottom line is that it does not give EQUALITY to everyone. The problem with marriage is it has LEGAL weight. It's not just about a ceremony. Married couples are given very real legal rights that unmarried couples DO NOT HAVE. Do you get that? Married couples have more LEGAL RIGHTS than unmarried couples have. So denying someone the right to marry, is denying someone EQUAL RIGHTS.

  4. And yes marriage IS defined as a right in state constitutions. How else would there be a discriminatory law?
    Whatever happened to "..the right to life, liberty, and pursuit of happiness" ?
    In a 1967 Supreme Court case the struck down laws banning interracial marriages, which I don't hear you complaining there is no "RIGHT" for that, the justices said, "The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men."

  5. The additional legal rights of a married couple are commensurate with the additional legal responsibilities which come into play.

    If a casual cohabitation breaks down, both people generally go their separate ways with minimum repercussions. But if a marriage breaks down, it generally requires lawyers to resolve, and can sometimes end up in court. In some cases, the Former Spouses Protection Act may require one spouse to give part of his/her retirement to the other spouse. If kids are involved, there are custodial and child support issues.

    So gay marriage may prove to be a double-edged sword for gays. It may give them more "rights" than they actually envisioned.

    BTW, how did you get so obsessed with "equality", anyway? "Equality" is a socialist construct. The phrase you quoted was "life, liberty, and pursuit of happiness", not "life, equality, and pursuit of happiness". There is no equality in nature.

  6. Yes, but marriage is pertinent to liberty and the pursuit of happiness.

    And yes, as already mentioned, marriage has become a right in several Supreme Court decisions, notably the 1967 case Loving v. Virginia.

    And where do we get equality?

    Fourteenth Amendment, Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

    There ya go.

  7. Legalization does not remove personal responsiblity and accountability for moral behavior or the consequences of immoral behavior. It only makes the grantors of legalization a contributor to others' immorality.