Gay Marriage? Why Not?

I am not sure who set my libidinal compass, but I suppose I should be grateful that it points in the direction it does. I have been able to marry the love of my life. She and I enjoy the law's recognition as a couple. We've not been stigmatized and asked to wear a disabling patch signifying second-class citizenship.

Not so with those friends and acquaintances of mine whosecompasses are set in a different way. A man cannot marry a man; nor can a woman marry a woman, at least not in Connecticut. This distinction between straight and gay love has no place in our law. The justices hearing arguments this week at the state Supreme Court should not shirk from courageous application of the principal of equality before the law.

The arguments for and against gay marriage have been rehearsed in other courts in other places. No new ground will be broken in Connecticut. What will be tested here is our vision of ourselves. Just how far are we willing to go to be one people bound together by rules that show equal respect for all?

Some argue that marriage is a legal doctrine of almost sacramental import. It is the union of a man and woman, they say. That is how it has always been. Indeed, the concept of marriage is bound inextricably with that of family. Husband and wife become one flesh and from their loins are spawned new flesh. The family is at the center of what holds a society together. Undermine the family, and loosen the bonds of society.

Let's drive the dross from this. Marriage is a sacrament in some religious traditions, and those worshiping in such traditions are free to treat it as such. Members of the various religious sects can define marriage any way the want, and they can bar from membership whomsoever they choose. That is a right of private association.

But the government has no business giving religious sacraments the force of law. That is the point of the First Amendment's establishment clause. And no credible claim can be raised that permitting gay marriage abridges a person's right to exercise freely his or her creed. Permitting gay marriage merely eliminates the majority's power to impose its creed sub silencio.

Gays can get all the rights of a married couple under civil union, we just don't permit them to marry. What silliness is this? The doctrine of separate but equal is reborn and this time it's pointed not at people of color, but at people whose desire seems different.

Those who flirt with disguised judicial activism in the form of originalism will argue that at time the state constitutions were formed, marriage meant man and wife. Originalism, whether practiced in Connecticut or by the likes of Antonin Scalia is not a form of judicial restraint. It is merely an active application of intellectual doctrine to defend the status quo against change.

Originalism means slavery is the norm. But new wine burst through the old skins of legal doctrine to recognize people of color as more than property. Can't this process of fermentation also yield a better understanding sexual preference?

Homosexuality is not a disease or an illness to be scorned. It may not even be a choice. It is the expression of a preference. What law says we must classify such preferences and stigmatize those in the minority with second-class citizenship? •

Reprinted with permission of The Connecticut Law Tribune.

Comments

[KipEsquire]

Good stuff -- bravo!

[S.cotus]

Norm. Just a few points.

First of all, “Originalism” doesn’t necessarily mean that slavery is the norm. The 13th amendment is pretty clear that slavery is not to be the norm. At the time of the articles or amendments it WAS the norm. I am not sure that Scalia’s Originalism protects the status quo. After all, he probably authored opinions in recent years that had the most profound (or invasive) effect upon the status quo of criminal procedure. But, I do agree with you that the cry of “Originalism” can be used for political gain.

Secondly, you know, and I know, and they know (and they know that we know), that CT’s civil union statute was a political compromise intended to draw this very court battle.

Third, as you sort of admit, homosexual unions can always be recognized by churches.

[Lear's Fool]

Sodomy is a violation of nature. Such abominations are banned by societies desiring to endure. America's acceptance of this abomination is but another indication of her resigned "eat, drink and be merry, for tomorrow we die" mindset.

We're all aware that male-male and female-female couplings are unnatural. (Ever wonder why, say, an extension cord has a "male" end and a "female" end? Ever wonder if so-called "homosexuals" have trouble figuring out how to use extension cords?) And we all understand that "marriage" joins disparate things.

Atheists understand these things. Heck, even Muslims understand these things. You don't even have to dust off your heirloom Bible to understand these things.

But you do have to look somewhere besides the artificial world of manmade law.

[mike]

Norm,

Your point about the Federal Establishment Clause might be irrelevant.

Without knowing the details of this case, I expect that the cause of action is under the Connecticut Constitution, not the Federal Constitution. Big difference!

In the New Judicial Federalism, state constitutions are a mechanism for rights expansion that have not been vindicated under the Federal Constitution. Gay rights activists in Massachusetts, New Jersey, Vermont, and Hawaii, and any other places I might have left out, were all decided under the state constitution. That has been the tactic of choice among gay-rights activists.

Lear's Fool has raised many of the objections to gay marriage. For those who oppose gay marriage, these objections are tremendously powerful.

However, if the Connecticut Court, as an exercise of Horizontal Judicial Federalism, follows the model of Massachusetts and other state judiciaries, then the Connecticut civil union statute will probably carry the day in court.

But the Connecticut Supreme Court does not have the final word! The final word is with the People of Connecticut who can vote to overturn the Supreme Court and amend their constitution. That's part of the package with state constitutions. That is what happened in Hawaii.

If my information is correct, this is what happened in Hawaii, Vermont, New Jersey, and Massachusetts.

Hawaii
In Hawaii, the state supreme court ruled on the issue of "marriage" and required the State to demonstrate a compelling state interest for not permitting gay marriage. However, while on remand, the People of Hawaii Constitution amended the constitution to allow legislature to restrict marriage to man and woman. That ended the litigation. The Hawaii formulation preserves the option for the legislature to act or to not act. It constitutionalized the existing statute banning same-sex marriage, but it did not ensconce the ban on same-sex marriage in the constitution itself.

Vermont
The state supreme court based its ruling on “marriage” or “civil union” so the legislature passed civil union statute.

New Jersey
The N.J. Supreme Court based its ruling on “marriage” or “civil union” so the legislature passed civil union statute. See Lewis v. Harris, 908 A.2d 196 (N.J. 2006).

Massachusetts
The Massachusetts ruling was based on “marriage” and apparently there has been some political movement to overturn it by popular vote. See Goodridge v. Dept. of Public Health, 798 N.W.2d 941 (Mass. 2003).

Personally, I tend to doubt that Connecticut voters will overturn a ruling that supports the state's civil union statute. Connecticut is a blue state. But don't make any bets based on my prediction.

[Aaron]

(Ever wonder why, say, an extension cord has a "male" end and a "female" end? Ever wonder if so-called "homosexuals" have trouble figuring out how to use extension cords?)

I doubt that they do, but I suspect I would be amused by seeing you try to figure out a male-female crossover. (Wow... I think you could actually plug this one into itself....) Actually, the world of electronics (or plumbing) would probably leave you apoplectic. Anyone up for a three-way? And what about a gender changer?

[markm]

A common extension cord will plug into itself, and I do this all the time when I put one away. Does this make me a pervert?

[Lear's Fool]

"A common extension cord will plug into itself, and I do this all the time when I put one away. Does this make me a pervert?"

It means you can tell what goes where - just like the normal 97% of the human race. As for the other 3%: they simply need a corrective, not an accommodation such as that Norm suggests. Maybe a basic "What Goes Where?" one-page instruction pamphlet for dummies.

This is not complicated. No more so that the made-up malady called "gender confusion". (Drop trou and figure it out - and quit asking for your own private restroom.)

Or "sex change operations," which are nothing more than amputation/surgical-attachment operations. (You can amputate his legs, shave his fur and sew scales on him, but that doesn't mean your dog will be swimming around in your aquarium.)

See? It's really not that complicated. Why have some tried to make it seem so? Cui bono?