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October 26, 2008

The Dangerous Reasoning of the Connecticut Supreme Court

By Larrey Anderson
The Supreme Court of Connecticut recently embraced legal reasoning that opens a Pandora's Box. The Court recently handed down the latest in a series of bizarre rulings from state courts on "gay marriage." Using the court's logic any and all sexual conduct could be deemed constitutional -- and any and all sexual partners allowed to "marry." The Connecticut court's ruling brings America another step closer to moral nihilism.

The facts of the case, Elizabeth Kerrigan et al. v. Commissioner of Public Health et al. (SC 17716), are all too familiar. Eight same sex couples sued the state of Connecticut. They claimed that the state statutory prohibition against same sex marriage violated their rights to substantive due process and equal protection under the state constitution. The Supreme Court, in convoluted fashion, agreed.

It is not the facts of a case like this that concern me -- it is the logic. Gay people in America do feel aggrieved and, to some extent, they are.[i] But to address these grievances by changing the definition of marriage requires strange legal rhetoric.

The court's written decision rambles on for almost one hundred pages. (With page after page of footnotes in very small print.) The gist of the court's argument comes in two parts. The first is this:

The legislature has subjected gay persons to precisely that kind of differential treatment by creating a separate legal classification for same sex couples who, like married couples, wish to have their relationship recognized under the law. Put differently, the civil union law entitles same sex couples to all of the same rights as married couples except one, that is, the freedom to marry, a right that ‘‘has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men [and women]'' and ‘‘fundamental to our very existence and survival.'' [Emphasis added.]

Notice two things here.

(1) Marriage, the court claims, is "vital" to the pursuit of happiness; "vital" ... like blood to the living.  So unmarried people, of all sexual persuasions and deviancies, are not happy; the Supreme Court of Connecticut has confirmed it. And it is the fault of the unmarried that they are not happy; they have not been able to fulfill the pursuit of their constitutional right to "marry."

(2) This foggy assertion of (and definition of ) "marriage" that is "fundamental to our very existence and survival" stands because these Connecticut judges say so. "Marriage," at least now in Connecticut, has nothing to do with a commitment between a man and a woman to create a family for the stability and protection of offspring. Most Americans believe that the children, and only the children, produced by a marriage, are ‘‘fundamental to our very existence and survival."[ii] The Supreme Court of the State of Connecticut does not.

The court defended its ridiculous position thus:

Gay persons have been subjected to and stigmatized by a long history of purposeful and invidious discrimination that continues to manifest itself in society. The characteristic that defines the members of this group-attraction to persons of the same sex-bears no logical relationship to their ability to perform in society, either in familial relations or otherwise as productive citizens.

Because sexual orientation is such an essential component of personhood, even if there is some possibility that a person's sexual preference can be altered, it would be wholly unacceptable for the state to require anyone to do so. [Emphasis added.]

Did you get that? The state has no right to require anyone to alter his or her sexual preference. But Connecticut had no laws that required gays to change their sexual orientation. So where does the court's "reasoning" lead? Are pedophiles soon to rejoice over a safe haven in Connecticut?

The second important part of the decision begins thus:

In view of the central role that sexual orientation plays in a person's fundamental right to self-determination, we fully agree with the plaintiffs that their sexual orientation represents the kind of distinguishing characteristic that defines them as a discrete group for purposes of determining whether that group should be afforded heightened protection under the equal protection provisions of the state constitution.

The decision digresses, page after page, wondering whether or not "the group [of gay people wanting to be married] is ‘a minority or politically powerless.'" The court finally decides that it is:

In sum, the relatively modest political influence that gay persons possess is insufficient to rectify the invidious discrimination to which they have been subjected for so long. Like the political gains that women had made prior to their recognition as a quasi-suspect class, the political advances that gay persons have attained afford them inadequate protection, standing alone, in view of the deep-seated and pernicious nature of the prejudice and antipathy that they continue to face....
We conclude, therefore, that, to the extent that gay persons possess some political power, it does not disqualify them from recognition as a quasi-suspect class under the state constitution in view of the pervasive and invidious discrimination to which they historically have been subjected due to an innate personal characteristic that has absolutely no bearing on their ability to perform in or contribute to society.

That is the crux of the Connecticut Supreme Court's position. The court abandoned legislatively created civil union rights and imposed judicially created "gay marriage" on the citizens of the state of Connecticut. If you have doubts you can read the entire decision here. Let's briefly review the steps in the court's "logic."

A. The court ruled that Connecticut's "civil union law entitles same sex couples to all of the same rights as married couples except one, that is, the freedom to marry...."

B. This right to "marry" that has been denied to gays is a "vital" right. It is so important a right that the Connecticut Court finds it to be a fundamental constitutional right -- the right to pursue happiness.

C. Gays have been denied this right because (1) they are a minority-voting block and have not been able to elect representatives who would pass a law allowing them to "marry." And (2) their right to "marry" has (historically) been denied to them by the discriminatory acts of the majority. (The court presents a long drawn out comparison of the women's suffrage movement with homosexuals' demands for the right to "marry.")[iii]

D. Because the elected representatives have failed to allow gays to "marry" (all of the other legislation that guarantees everything but a marriage license notwithstanding), and because past discrimination gave homosexuals special standing, the Connecticut Supreme Court granted gays the right, under the Constitution of the State of Connecticut, to "marry."

E. The Connecticut Supreme Court claims that it has the power to grant the right of "marriage" to gay couples.

Where in the state constitution does it state that the judicial branch has the right to legislate a civil union between same-sex couples and call it "marriage?" Nowhere. But the court has an answer for that as well:

The drafters of our constitution carefully crafted its provisions in general terms, reflecting fundamental principles, knowing that a lasting constitution was needed. Like the framers of the federal constitution, they also ‘‘knew [that] times can blind us to certain truths, and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the [c]onstitution endures, persons in every generation can invoke its principles in their own search for greater freedom.'' Lawrence v. Texas, supra, 539 U.S. 579. Not long ago, this court made the same essential point, explaining that ‘‘as we engage over time in the interpretation of our state constitution, we must consider the changing needs and expectations of the citizens of our state.'' State v. Webb, 238 Conn. 389, 411, 680 A.2d 147 (1996).

You need to read this last quote very carefully. Gay "marriage" is not a right in the state constitution because the constitution's framers put it there. It is not a right under the law because the elected representatives of the people put it in the legal code. It is a "right" because four politically appointed selected-for-life judges say so.

Remember the exact words of the decision are:

Because sexual orientation is such an essential component of personhood, even if there is some possibility that a person's sexual preference can be altered, it would be wholly unacceptable for the state to require anyone to do so.

The question is not: why did the Connecticut Supreme Court grant gay couples the right to "marry?" The question is: why did the Connecticut Supreme Court stop there?

Necrophiliacs are people too. Talk about a history of discrimination! Or minority voting status!

Pedophiles, necrophiliacs, bigamists, and anyone else claiming any sexual orientation at all cannot be forced to change by the state of Connecticut if you apply this logic. As long as you assert your status as a "quasi-suspect class," as victims of historical discrimination, and as a minority voting population, the Supreme Court of Connecticut has written eighty-four pages of legal positioning (and dozens of long footnotes) to sustain all of your arguments.

The fact that the Supreme Court of Connecticut can get away with this kind of judicial insanity, and brag about it in the process, should frighten all reasonable Americans.

Larrey Anderson is a writer, a philosopher, and a deputy editor for American Thinker. He is the author of the award-winning novel The Order of the Beloved.

[i] On issues like insurance, wills and inheritance, medical visitation, etc., the gay community has had, and in some states still does have, legitimate concerns. Connecticut is not one of these states. The Connecticut legislature had already passed full blown civil union protection for gays. (Connecticut General Statutes, Sections 46b ff.) These statutes were declared unconstitutional in the decision because they did not allow gay partners to "marry."

[ii] Providing for their offspring is a moral and legal responsibility of the parents; and it is necessary for the preservation of the lives of their helpless infants. But that, at least as a legal issue, has nothing to do with a "vital right" to be legally married. People, gay or otherwise, do not have to be married to raise a child.

[iii] Suffrage involved women and men who were willing to be jailed, prosecuted, and persecuted. They fought to obtain women's right to vote. Much like African Americans, they were tenacious and persevering. They changed the minds of a nation, securing their rights through legislative change. In the state of Connecticut, same sex couples had achieved social change that resulted in the legislative creation of civil union laws. These laws gave same sex couples all of the rights of heterosexual couples, except the right to call themselves "married."

on "The Dangerous Reasoning of the Connecticut Supreme Court"