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Same-sex marriage notes from both coasts

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Excellent news from the East coast: the Connecticut Supreme Court has ruled that same-sex couples have the right to get married.

I had no idea this was even in progress. I'm delighted.

I haven't read the full 85-page decision (PDF) and probably won't get a chance to do so anytime soon, but figured I might as well link to it.

The governor of CT says she disagrees with the ruling but won't fight it.

There's going to be a ballot initiative on the Connecticut ballot next month about whether the state should have a constitutional convention (a question that goes on the ballot only every 20 years). It sounds like if that measure passes (see last couple of paragraphs there), then the Legislature would have to pass an amendment outlawing same-sex marriage, and then the voters would need to approve it two years from now. (But it's also possible that a convention would result in CT citizens getting the ability to change the constitution via ballot initiative, which might change the game somewhat.) At any rate, it sounds like it would be very hard to stop same-sex marriage in CT at this point, and I'm hoping that even if the first steps happen, the two-year period of same-sex marriage being normal will mean voters won't approve such an amendment.

So all that is great news.

Here on the West coast, things aren't looking so rosy. The latest polls on Prop. 8 show the supporters of the measure to outlaw same-sex marriage running about four points ahead of us opponents. Which is, the pollsters hasten to note, a statistical tie, so don't panic. (Also, those polls show about 10% of respondents still undecided.) But it's a disappointing drop in polling numbers from the Field poll a few weeks back. The difference is most likely due to the yes-on-8 people coming out with a couple of provocative and misleading TV ads. OH NOES--TEH QWEERS R STEELIN UR RELIGIOUS FREDOM! Feh.

I have two or three entries about Prop 8 to post, but I haven't finished any of them, and time is short. So I'll just say this for now: if you can afford it, and if this is an issue you care about, go donate some money to No On Prop 8. (Click the big DONATE NOW button at the upper right of that page.)

And you don't have to be a Californian to donate. Something like a quarter of the funding on both sides has come from out of state.

I think you have to be a US citizen to donate, though--the donation page says "foreign nationals are prohibited from making contributions to this campaign." Don't know if there are relevant organizations that non-citizens can donate to.

Oh, and if you are a Californian, please vote on Nov. 4.

I just came up with a slogan, though I suppose it may be more confusing than helpful:

Save marriage--for everyone. Vote no on Prop 8.

4 Comments

From the decision:

Furthermore, we are mindful that state ‘[c]onstitutional provisions must be interpreted within the context of the times. . . . ‘We must interpret the constitution in accordance with the demands of modern society or it will be in constant danger of becoming atrophied and, in fact, may even lose its original meaning.’ . . . [A] constitution is, in [former United States Supreme Court] Chief Justice John Marshall’s words, ‘intended to endure for ages to come . . . and, consequently, to be adapted to the various crises of human affairs.’
[shudder]

...well, at least they're being up front about this being judicial activism. (Of the six factors they set out as criteria for interpreting the state constitution, only two of them are concerned with what the thing actually says and means—which properly should be the be-all and end-all—and those aren't the ones they use to settle this.)

The decision boils down to: there's discrimination against homosexuals (true); that has extremely harmful effects (true); state recognition of heterosexual marriage and not homosexual marriage is discriminatory (true); we, the judiciary, don't like that (well done); and therefore, even though there are no actual constitutional grounds for this, we're going to elbow the legislature aside and change the laws ourselves (so, so wrong).

All you people complaining about the right wing coming to power in the executive and legislative branches? This right here is why that happens. It's exactly the reverse of the way the system should work.


(Note: that's Connecticut. California is a different case, because the legislature actually got it right and changed the laws itself, and the governor struck it down on grounds that the judiciary ought to decide this. This means that your governor is an idiot who got it backward—I was furious when I heard that one—but it also means the judiciary was essentially accepting the mandate granted by the other two branches.)


Shmuel: You say "well, at least they're being up front about this being judicial activism. (Of the six factors they set out as criteria for interpreting the state constitution, only two of them are concerned with what the thing actually says and means—which properly should be the be-all and end-all—and those aren't the ones they use to settle this.)"

Those six factors, quoted on page 12 of the decision for anyone looking for them, are from a 1992 CT Supreme Court decision (Geisler). Those six factors have been guiding their decisions for 16 years, and they weren't revolutionary then. As for "what the thing actually says and means", that's precisely what those six factors are supposed to guide them in determining.

My reading of the decision is that it boils down to: there's discrimination against homosexuals (true); that has extremely harmful effects (true); state recognition of heterosexual marriage and not homosexual marriage is discriminatory (true); our state constitution has an equal protection clause (true); sexual orientation qualifies as at least a quasi-suspect class like gender (reasonably supported); discrimination in the marriage laws violates the equal protection clause in that case (also reasonably supported). Enforcing the equal protection clause isn't judicial activism; it's their job.


I didn't say this approach was new; 16 years is a drop in the bucket. The SCOTUS of the 1970s in particular sailed over the edge, and we're still dealing with the consequences thirtysomething years later. (This would be my single largest incentive to vote for McCain, though I'm still leaning toward Obama on other grounds, and because presidential appointments so rarely work out as intended.)

But okay, the six Geisler factors: (1) what does the constitution actually say; (2) what has this court held and said in the past; (3) what does federal precedent say; (4) what have other state courts decided; (5) what clues can we derive from historical context to determine the intended meaning of the constitutional provision; (6) "contemporary economic and sociological considerations, including relevant public policies," which appears to be a catch-all for "what do we want to legislate today?"

Of those, (1) and (5) deal with the bedrock constutionality; (2) deals with the court being internally consistent; (3) and (4) boil down to "what do the neighbors think?", and I couldn't find a way of being neutral about (6) above. The last four may all be fine things, but (1) and (5) properly trump them all.

Taking those in order, the court determines that (1) the text of the constitution doesn't really go one way or the other; (2) we haven't really addressed this as such before; (3) the federal courts have recently started to come around on the issue, so even though actual federal precedent is still clearly that gay marriage is not given the same legal status as straight marriage, we're going to steal a march and declare them to be on our side; (4) most state courts have ruled against what we're about to say, but we like the few exceptions much better; (5) looking at what the framers of the constitution meant to include obviously would have gone against them, so they conveniently skip it on page 57 to move on to (6) it's a bad, bad thing for gay marriage not to be given the same status as straight marriage, and we don't like it one bit.

...in other words, the entire decision deliberately ignores the question of what the constitution included when written, and leans entirely on minority viewpoints in other judiciaries and on factor 6: we consider this detrimental to society, and therefore we're gonna go ahead and legislate it. Which it then does.


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