Connecticut has become the third state where a high court has
ruled that a hitherto unknown (and still unwritten) provision of
the state’s constitution mandated redefining marriage to include
same-sex couples. Like California, the state legislature had
already provided all of the benefits of marriage to same-sex
couples but four of the state supreme court’s seven judges felt
that the inability of same-sex couples to claim the status of
marriage itself consigned them to “an inferior status.”
The court’s reasoning was that the class of people identifying
themselves as gay or lesbian was politically powerless and thus
all laws affecting this class had to be treated with heightened
suspicion by the court. This shifted the burden of proof to the
state to show that the marriage statute had a really good
justification and the court concluded that the state had not done
so (it had not really made a robust effort to do so in any
event).
Ironically, the “political powerlessness” diagnosis by the court
would seem to have been undercut by the fact that Connecticut was
one of very few states to create an alternative legal status for
same-sex couples that provided all of the incidents of marriage.
As one of the three dissenting justices noted, the court majority
actually used this fact to argue for the opposite conclusion. The
majority said the enactment of a civil union status showed that
same-sex couples were so disadvantaged they had to have a special
status created for them. The dissent pointed out that if the
legislature had not created civil unions, the majority could have
used the lack to show political powerlessness. The majority’s
opinion thus looks like a result in search of a rationale.
THE CONNECTICUT DECISION to redefine marriage comes when three
states, California, Arizona and Florida, are considering measures
on their November ballots that would provide constitutional
protections to their legal definitions of marriage as the union
of a husband and wife. Unlike these states, however, Connecticut
has no mechanism for amending its constitution by initiative, so
citizens of the state are powerless to respond directly to the
decision in the short run.
The California vote is particularly significant because that
state’s supreme court had redefined marriage in a May decision.
That California decision was relied on heavily by the Connecticut
court in support of its reasoning (such as it was).
The Connecticut court also relied heavily on the 2003 U.S.
Supreme Court decision in Lawrence v. Texas,
invalidating the few existing state sodomy prohibitions. For the
Connecticut judges this decision was relevant because it advanced
the idea that constitutional principles change and can emerge
over time, often ex nihilo.
The common thread running through the decision is that the court
sees itself as the body uniquely qualified to determine what
marriage ought to mean in Connecticut. It feels unconstrained by
the rejection of redefinition by the legislature in 2005, by the
lack of legal precedent for its decision, and by the lack of
textual support in the state’s constitution.
On reading the decision, it seems clear that the really
politically powerless group in Connecticut is the majority of
citizens who believe marriage should remain a social institution
uniting men and women in the interests of the future, rather than
a vehicle the state can use to dole out recognition and esteem to
committed adult relationships.
THERE IS A GLIMMER of hope for this group, though. On the
November ballot in Connecticut is a proposal that would authorize
a constitutional convention to revise and amend the state’s
constitution (by law this provision is on the ballot every twenty
years). If approved, presumably the state constitution could be
amended to include some sort of protection for marriage, either a
definition or a mechanism for initiative amendments that would
then be used for a marriage amendment.
Power brokers in Connecticut vociferously oppose a constitutional
convention and have poured enormous funds into the campaign in
opposition. Perhaps they believe the easier route to
constitutional change, through litigation, is enough for now.
A powerful psychological tool of the groups seeking a
redefinition of marriage is the sense of inevitability. A series
of state high court decisions in favor of our inherited
understanding of marriage following the 2003 Massachusetts court
redefinition, coupled with the enactment of state marriage
amendments in the majority of states suggested that same-sex
marriage is not inevitable for the U.S. Two consecutive state
court cases may have created the appearance of a new trend, but
voters this November may very well be able to make this merely a
passing fad.
