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.

Gay Rights, the Clash of Civilizations, and the Danger of Moderates

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

After my last posting, I received a few comments telling me that I am underestimating the importance of the clash of civilization between the Islamic world and the West. I beg to differ. Though my last posting may have carried a whimsical flavor, I am well aware of how deep the differences go.

This November, the people of Colorado will vote on no less than three ballot issues dealing with gay rights. In this country, in this state, that means we will argue over the minutia of various legal rights possessed by married couples and whether to extend those legal rights to gay couples. Members of the GLBT community are, arguably, the most disenfranchised citizens of the United States, and yet the most important issue affecting that group at the moment is the bundle of property rights that go into making a legal marriage. If a country’s level of civilization can be judged by how it treats its underclass citizens, than I would say the United States is doing fairly well.

Now, let us compare U.S. civilization with that of Iraq. There, gay rights do not even begin to contemplate the nuances of various property claims and marriage contracts. In Iraq, those who support gay rights ask only that homosexual people be allowed the right to live at all. Jennifer Copestake reports in The Observer that Shia death squads now roam the land executing gay men. “Gays flee Iraq as Shia death squads find a new target.” Barbaric as that seems, it is made worse by the fact that these death squads also target and execute young boys who have been forced into prostitution.

One might think the new Iraqi government and law enforcement would be appalled by such behavior. But one would be wrong. You see, under Islamic law, or Sharia, homosexuality is so reviled that to kill a gay man is no crime at all. Rather, it is considered an honor killing and will actually increase the killer’s chances of getting into heaven. Anyone who doubts this has only to visit the Middle East Research Institute’s TV Monitoring Project and view its collection of clips from Arab networks on homosexuality. In one notable clip from MEMRI TV, Saudi cleric 'Abd Al-Qader Shiba Al-Hamad, a teacher at the Al-Nabawi Mosque in Al-Madina, elaborates on the proper means of killing homosexuals: by flogging, beheading, or rolling down a mountain until dead. Under Islamic law, the underclasses of society have no rights, and should count themselves lucky just to survive.

I am well aware that this barbaric view does not dissipate merely through interaction with our Western culture. Many terrorists, dedicated to the absolute destruction of the West, have received their educations here in the United States or in the United Kingdom. Yet, they do not see our successes and freedoms; they see only our ‘sinful’ opulence and the riches their own nations do not have. I stand by my previous statements that, in the end, our trade and cultural exports can succeed in willingly seducing the Islamic world to our way of life. However, I also reiterate that those demanding that all people either follow the strict dictates of Islam or face death must themselves learn the meaning of fear and terror. Those who would force this barbarism on others must be met with merciless opposition.

This is not a politically correct view at the moment, I know. In this past week, I have heard the media bleat endlessly about the dangers of offending moderate Muslims. This, however, seems utterly ridiculous to me. Moderate Muslims should be offended. They should be shocked and appalled by the behavior of their fellow Muslims and the barbarism of Islamic law. I am beginning to agree with Dr. Martin Luther King Jr. in his low opinion of so called ‘moderates.’ In his “Letter from Birmingham Jail,” expressing his frustration with white moderates, he states that, “Shallow understanding from people of good will is more frustrating than absolute misunderstanding from people of ill will. Lukewarm acceptance is much more bewildering than outright rejection.” Similarly, in the current situation, it is far more difficult to understand the ‘moderate’ Muslims who see the evil and barbarism of their fellows and do nothing than it is to understand those terrorist Muslims acting under the delusion of righteousness. Those who see evil and do nothing are more terrifying to me than those too stupid or deluded to see the evil in the first place.