October 13, 2008

Connecticut Supreme Court Endorses Gay Marriage-But Please Don't Call It Judicial Activism

By Julian Dunraven, J.D., M.P.A.

Honorable friends,

The Supreme Court of Connecticut has just issued an opinion in Kerrigan v. Commissioner of Public Health, approving gay marriage in that state. I have no doubt that I will shortly be hearing a great deal about ‘judicial activism,’ given that both sides use that term whenever they disagree with a decision and neither side seems to know much about what it means. What it should refer to is the improper situation where a judge or panel of judges/justices, rules according to their own policy, independent of constitutional directives. The proper role of our judges for constitutional questions is to look at the law, match it to the constitution, and see if they fit — that is all. That is exactly what the Connecticut Supreme Court has done.

There are a few pertinent factors to keep in mind. First, Article 1 §§1& 20 of Connecticut’s constitution contains guarantees of equal protection and anti-discrimination that go well beyond the U.S. Constitution’s equal protection clause. The Court viewed this issue as a regulation upon sex, and spent the bulk of the opinion analyzing the treatment of Civil Unions verses Marriage under the same level of scrutiny it would use for any other type of sex or gender based legal distinction. Upon finding the legal status of sexual preference to be a sex based suspect class, it found no legitimate state interest whatsoever in granting heterosexual couples marriages while granting homosexual couples civil unions.

The Court was so thorough in this procedural analysis that the decision was downright dull. The opinion carried none of the fascinating historical analysis of marriage one finds in the Massachusetts case of Goodridge v. Department of Public Health, 440 Mass. 309 (2003), nor the lively discussions of civil rights in the California case of In re Marriage Cases, 43 Cal.4th 757 (2008). The only interesting language for lay people came in a footnote:
15 As one prominent legal commentator has explained in discussing the establishment of civil unions: ‘‘Such a step reduces the discrimination, but falls far short of eliminating it. The institution of marriage is unique: it is a distinct mode of association and commitment with long traditions of historical, social, and personal meaning. It means something slightly different to each couple, no doubt. For some it is primarily a union that sanctifies sex, for others a social status, for still others a confirmation of the most profound possible commitment. But each of these meanings depends on associations that have been attached to the institution by centuries of experience. We can no more now create an alternate mode of commitment carrying a parallel intensity of meaning than we can now create a substitute for poetry or for love. The status of marriage is therefore a social resource of irreplaceable value to those to whom it is offered: it enables two people together to create value in their lives that they could not create if that institution had never existed. We know that people of the same sex often love one another with the same passion as people of different sexes do and that they want as much as heterosexuals to have the benefits and experience of the married state. If we allow a heterosexual couple access to that wonderful resource but deny it to a homosexual couple, we make it possible for one pair but not the other to realize what they both believe to be an important value in their lives.’’ R. Dworkin, ‘‘Three Questions for America,’’ N.Y. Review of Books, September 21, 2006, pp. 24, 30.
The dissenting opinions did not limit their most interesting prose to footnotes, but spoke eloquently of the tradition of marriage having long been between a man and a woman. They also mentioned that only heterosexual unions can produce children, and argued that the state has an interest in that procreative function. I know that many laypeople feel very strongly about both of these arguments. Unfortunately for them, as the majority pointed out, neither argument carries any legal weight.

Though traditions are often cherished, as the majority points out, they carry no weight in their existence alone. If they did, we would still have laws forbidding interracial marriages and wives would still be regarded as property interests of their husbands. In order for tradition to hold up under law, it must have a valid reason for its existence beyond the religious convictions of some faiths. As the Court could not find any such reason, they could not uphold tradition for its own sake alone. However, keep in mind that we are talking only about civil marriages; all Churches and faiths remain free to define sacramental marriage as they see fit.

The argument regarding procreation likewise fails. In this country, though marriage itself is ancient, our concept of it has changed frequently over the years. Over time, our courts have decided that valid civil marriages do not require procreation, or sexual intercourse, or even cohabitation. It is well settled that civil marriages exist primarily to facilitate personal companionship — and our right to define the nature of that companionship on an individual level has been declared as fundamental by our courts — the state merely provides a bundle of rights which accompany the status.

After reading the opinion, I am convinced the decision fits squarely with the extraordinarily broad guarantees of the state constitution, and is not a product of judicial activism. Indeed, because it is so heavily focused on procedural analysis under sex discrimination, it may be the least judicially active gay marriage case we have seen.

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