October 26, 2008
The Dangerous Reasoning of the Connecticut Supreme CourtBy 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:
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:
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:
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:
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:
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:
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."