Same sex marriage: Does Justice Borden really oppose it?

We all know the vote tally in Kerrigan v. Comm’r of Public Health: 4-3 in favor of the plaintiffs. Justices Palmer, Norcott, Katz and Judge Harper voting in favor and Justices Borden, Vertefeuille (Ryan takes a stab at unpacking her dissent) and Zarella against. But is that really the vote tally for/against gay marriages?

The answer, as alluded to in passing by Gabe, is no. In order to understand how (or why), one must look closely at Justice Borden’s dissent. Essentially he does what I predicted he would do.

Let’s lay this out:

Borden agrees with the majority that:

contrary to the conclusion of the trial court, the plaintiffs have stated a cognizable constitutional claim. I agree that there is enough of a difference between the new institution of civil union and the ancient institution of marriage to permit a constitutional challenge on equal protection grounds. There is no doubt that the institution of marriage carries with it a unique and important history and tradition in our society and state.

Where he disagrees with the majority is the finding that gay couples hold an inferior position in the State, which ties in nicely with his major disagreement: that they are politically powerless.

I also agree, however, with the majority that the same factors that trigger strict scrutiny under our equal protection clauses trigger intermediate scrutiny, and I agree generally with the majority’s four factor test applicable to trigger those tiers of judicial scrutiny, including the notion that there is no formula for applying the four factor test. Furthermore, applying those four factors to the facts of this case, I agree that gay persons have suffered a deplorable history of invidious discrimination, that their sexual orientation is a distinguishing characteristic that defines them as a discrete group, and that one’s sexual orientation has no relation to a person’s ability to contribute to society. My fundamental disagreement with the majority focuses, however, on the relevance and application of the fourth factor, namely, the political power of gay persons in this state.

This is the only significant place where Justice Borden (and by association Vertefeuille) departs from the majority: that they don’t need heightened protection because they are damn well capable of getting what they want from the legislature.

It is to blink at political reality to ignore or to dismiss, as the majority does, this extraordinary and unprecedented public record. No other court that considers the political power factor as relevant has been  presented with this unique demonstration of political power. Moreover, I note that it is influential elected politicians—not appointed judges—who think that gay marriage through legislation is inevitable in Connecticut; who have discussed the issue with their elected colleagues and their constituents; who have read the public opinion polls, and have concluded that gay marriage will be enacted legislatively in  Connecticut sooner rather than later; and who determined, in April, 2007, more than one year ago, that within one or two years from then a strong, bipartisan majority likely would pass a gay marriage bill…

But Justice Borden’s personal beliefs about gay marriage and civil unions are revealed, uncharacteristically I think, in a footnote (footnote 5):

In reaching this conclusion, I emphasize that, if I were a legislator voting on legislation, I would recognize the legitimacy of the plaintiffs’ aspirations to have the legal status of marriage and would vote accordingly. I am, however, not a legislator; I am a judge, and my analysis of the applicable legal principles leads me to conclude, contrary to the majority, that the legislation at issue is not unconstitutional. That is where my obligation must end, and that of the legislature begin. As Justice Madsen stated, writing for the majority in Andersen v. King County, 158 Wash. 2d 1, 8, 138 P.3d 963 (2006), ‘‘[p]ersonal views must not interfere with the judge’s responsibility to decide cases as a judge and not as a legislator.’’

So, in reality, 6 out of 7 justices on the CT Supreme Court favor same sex marriages. 2, however, thought it was best left to the legislature and that it would come about, sooner or later.

I disagree with Justice Borden on his interpretation of the law, but not his views on gay marriage.

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