Somewhat along the lines of this.
You can’t watch this and not feel some happiness.
The man officiating, btw, is Appellate Court Judge F. Herbert Gruendel.
The Equal Protection clause generally provides that “no state shall … deny to any person within its jurisdiction the equal protection of the laws”. It is based on this clause in their respective state constitutions that the supreme courts of Connecticut, Massachussetts and California struck down bans on gay-marriage. Not to be outdone, a segment of the population in both CT and CA sought to have these decisions reversed by some form of constitutional amendment. Prop 8 in California passed, the call for a Constitutional convention in CT failed.
So what’s a Californian to do? And where does this leave the Equal Protection Clause of California? The primary purpose of the equal protection clause, as I see it, is to protect a minority of citizens from the subjugation of a majority. Every individual should have the same rights as every other individual. That has to be the thrust of the EPC. But a slim majority of voters in California decided that gay people were less deserving of the same rights (whether this was done on the up-and-up in open to debate: there are reports that proponents of the ban were using some downright despicable tactics, like scaring people [scroll to the bottom] that gay-marriage meant a gay curriculum in schools).
So what now, anyway? Plenty, apparently, as this post from Co-op highlights. The attorney for the first gay couple to get married in CA will file a lawsuit against Prop 8 with a new and controversial legal argument (although it doesn’t state what that is), there may be a large number of ballots that have not been counted and the city of San Fran will file another suit.
But there’s yet another challenge – one that may well shape up to be the most interesting Constitutional issue of our times. Yes, whether the amendment itself is uconstitutional because it violates the Constitution. That’s the crux of the ACLU/Lambda challenge: the so called “amendment/revision” distinction. An amendment requires only a simple majority of voters, but undoing a core fundamental right and removing it from the Constitution is a revision to the Constitution and requires a constitutional convention and 2/3 majority of the legislature.
The post at Co-op seems to disagree:
Another suggestion from a friend is that the proposition fails because it is inconsistent with other constitutional provisions. That seems to misunderstand the function of constitutional amendments. Where these are inconsistent with other provisions, they are typically intended to overrule those provisions. (I.e., the 13th amendment and the slavery provisions; or the Prohibition amendments.) As a matter of basic interpretation, I think that the reading one would give it is that to the extent that the Equal Protection clause required marriage to be extended to same-sex couples (Marriage Cases), that interpretation is now overruled.
I do think the examples he gives above are different from the situation at hand. At least with the prohibition amendments, a later amendment specifically repealed an earlier amendment. That’s not the case here, where a fundamental right is at stake.
Could a State decide to take away fundamental rights? Can CT tomorrow pass an amendment banning inter-racial marriage? Or making all immigrants slaves? Or preventing women from marrying men younger than them? Or heck, rolling back all the way to the days of “separate but equal”? After all, it was an interpretation of the Constitution that banned racial discrimination.
Why would that not be subject to challenge? And if it is, then why isn’t CA’s Prop 8?
I think the coming months will indeed see this challenge and the question of what happens when a provision of the Constitution clashes with a subsequent amendment. Which is given more weight?
To end, I leave you with this personal note from this DKos post about Prop 8:
I still can’t believe that millions of total strangers who have never so much as laid eyes on me had the right to vote on my rights and equality at all, let alone that they voted against them. If this was, in fact, an unconstitutional proposition, it means they did not have that right. It won’t change the fact that they voted how they did, but it will take some of the pain away.
And that’s just it. Do we want one group of people deciding the rights and freedoms of another group? Thank you, CT, for having the good sense to not fall for this one.
Last week brought the thoroughly good news that same-sex marriage was now legal in CT. Ah, but were that the end of the story. As I mentioned in my oddly prescient post the morning of the decision, there will be a question on the ballot this Nov. 4th, asking voters whether CT should hold its first Constitutional convention since 1965.
The battle lines have been drawn: the anti-gay marriage folks are pushing hard for this constitutional convention. Their ultimate goal is get an amendment passed at the convention that would be similar to California’s Proposition 8 [pdf] (banning gay-marriage), but the sentiment seem to also be that they would like an amendment to the constitution authorizing voter referendum, which could lead to other questionable legislation: banning abortion, a true three-strikes law, etc.
Folks on both sides of this fight are getting ready, though the “no” folks seem to be getting the majority of the donations (over $800K as compared to $12K).
The question is on the ballot this year because of a decision at the 1965 convention to revisit the issue approximately every 20 years. The question was defeated in 1986 by some of the same groups that oppose it now: the American Civil Liberties Union, the Connecticut Trial Lawyers Association, Connecticut Citizen Action Group, Planned Parenthood, National Council of Jewish Women and the teachers’ unions, among others.
Opponents of the measure say Connecticut voters do not need a direct vote on the issues of the day because they have elected a governor and a state legislature to do that.
“I think it’s a mistake,” said Senate President Pro Tem Donald Williams. “We have a representative democracy that’s worked and served Connecticut very well.”
“You could wind up with the kind of train wreck that we see in California and the huge budget deficits.” Williams added, “The state constitution that we have right now has served us very well.”
Take a look at some “notable initiatives” from around the States.
The argument that the majority of citizens in CT oppose gay marriage may not hold much water anymore. A recent UCONN poll found that 53 percent favor it, while 42 percent oppose it. These numbers represent a reversal from just 3 years ago.
So, it goes without saying that I will be voting “NO” (emphatically, if it counted for more) on November 4th and so should you. I’m not opposed to the idea of a Constitutional convention per se – but only in the most extreme of circumstances. These are not them.
Others have also spoken out about their reservations:
Standing on the steps of the state Capitol Wednesday, Attorney General Richard Blumenthal, who opposes a convention, said that there are better ways to change the state constitution, than holding a constitutional convention.
He said the current state constitution has been amended 30 times through the legislative process to change how judges are appointed, eliminate the corrupt sheriffs system, and determine how an incapacitated governor should be replaced.
Wesley Horton, who specializes in constitutional law and has written a book on Connecticut’s constitution, said in a statement Wednesday “Without some overwhelming need for a constitutional convention, such a convention could easily be dominated by single-issue special interest groups,” he said. “If zealous groups to not get what they want from the legislature or the governor or the courts, they could put the issue to the convention.”
Horton warned that “If we think the Connecticut legislature is dominated by special interest groups, wait until Connecticut has a constitutional convention called, not because some major upheaval requires it, but because special interest groups band together to dominate it!”
As Scott puts it:
It doesn’t matter that some call gay marriage an abomination. We all have things we consider “abominations”, though they tend to vary wildly. Why is your abomination better than mine? If the constitutional proposition commands discrimination that would deny equal protection to a specific class, then it creates an internal constitutional conflict. We can’t discriminate, but we must discriminate, hardly seems to make for an acceptable situation (personal abominations aside).
On the other hand, however, it would raise a very interesting Constitutional law question: Would a new Constitutional amendment banning gay marriage violate the Equal Protection Clause of the Connecticut Constitution? If it did, would there be any recourse?
Oh that gets me excited just thinking about it. But that’s not a good enough reason to vote yes.
I will repeat: these are my views only. Not my employer’s. Don’t assume them to be, because you will be wrong.
Has your marriage gotten worse since Monday? Do you somehow feel “less” married? Husband/wife refusing to act “spous-y”? Please share if you answered yes to any of the questions.
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?
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.
In a landmark decision (with three dissents), the Connecticut Supreme Court today ruled in Kerrigan v. Commissioner of Public Health, that prohibiting same-sex marriages violates the State Constitution’s equal protection clause.
In doing so, CT joins CA and MA in legalizing gay marriages via judicial decisions.
I cannot overstate how happy and proud I am of this decision and the implications. For the first time in a very long time, the Supreme Court issued a passionate, reasoned and intelligent decision that thoroughly discusses the law and the reasoning behind its decision.
I suspect that this decision will (or should) be referred to, studied and taught in law schools in the State for years to come. If anything, this decision is an excellent primer on equal protection law – both State and Federal.
The court ruled that sexual orientation is a “quasi-suspect” classification, warranting intermediate scrutiny.
Among the arguments raised by the State (and the dissents) were that same-sex couples are not “similarly situated” to opposite-sex couples and that the real purpose of marriage is only procreation, not anything more spiritual or meaningful.
These arguments should be (and are) easily dispensed with. The Court also rejects the argument that Article 1, Section 20 of the state Constitution contains an exclusive list of suspect classifications.
6 of the 7 justices also agreed that gay persons have suffered a history of invidious discrimination, that the characteristics that distinguish the group’s members bear no relation to their ability to contribute to or perform in society, that the characteristics are immutable or otherwise not within their control and that the group is a minority.
Where the majority separates from Justices Borden and Vertefuille (who wrote two of the three dissents) is the last consideration: that the group is politically powerless.
Justice Borden, in his dissent, points to the passage of the civil union bill as evidence of the strong political power of the gay community. The majority, on the other hand, relies on Frontiero v. Richardson (establishing gender as a suspect class) and the circumstances in existence at the time of that decision (women were a voting majority, many were in Congress) that accorded women heightened protection.
I think Justice Borden is just wrong. As the majority notes, in CT, there are only 5 gay legislators (nationwide, the number is around 400 – that’s a very small number), no openly gay Supreme or Appellate Court judges and only one openly gay Superior Court judge.
Just because a civil union bill was passed and signed into law, doesn’t mean that the minority isn’t powerful. In fact, it is perhaps a sign of their lack of clout – after all, most gay couples would rather have had gay marriage from the outset. Further, this civil union bill was passed only after a decade of failed attempts.
The citations in this decision are, on one hand, predictable (In Re Marriage Cases (CA), Lewis v. Harris (NJ), Baker v. State (VT) and Opinion of the Justices to the Senate (MA)), and on the other hand, interesting (Loving gets a lot of mentions, as do Bowers and Lawrence. Brown v. Board is also mentioned as is McCulloch).
As a side note, I can’t remember the last time I saw so many citations in one decision.
In the end, it does come down to whether marriages connotes something greater than civil unions. Yes. Everything else is identical between these two (former) statuses. As my fellow CT blogger Ryan asks: “what’s in a name?”
‘‘Any married couple [reasonably] would feel that they had lost something precious and irreplaceable if the government were to tell them that they no longer were ‘married’ and instead were in a ‘civil union.’ The sense of being ‘married’—what this conveys to a couple and their community, and the security of having others clearly understand the fact of their marriage and all it signifies—would be taken from them. These losses are part of what same sex couples are denied when government assigns them a ‘civil union’ status. If the tables were turned, very few heterosexuals would countenance being told that they could enter only civil unions and that marriage is reserved for lesbian and gay couples. Surely there is [a] constitutional injury when the majority imposes on the minority that which it would not accept for itself.’’
Finally, one need only note the invocation of Plessy’s “separate but equal” to realize why this decision was the correct decision:
Accordingly, we reject the trial court’s conclusion that marriage and civil unions are ‘‘separate’’ but ‘‘equal’’ legal entities; Kerrigan v. Commissioner of Public Health, supra, 49 Conn. Sup. 664; and that it therefore ‘‘would be the elevation of form over substance’’; id., 667; to conclude that the constitutional rights of same sex couples are implicated by a statutory scheme that restricts them to civil unions. Although marriage and civil unions do embody the same legal rights under our law, they are by no means ‘‘equal.’’
On to the reactions:
The Governor issued a statement saying that, essentially, she doesn’t like it, but doesn’t want a culture war, so she will deign it appropriate to uphold the law. As of the writing of this post, she has not threatened to ask the Attorney General to imprison any of the plaintiffs in the case or any of the Justices in the majority.
The story has also gotten a lot of play on blawgs:
- Volokh (where some of the comments echo my question in this morning’s post – how prescient was I?)
- CT Local Politics
- CT News Junkie
- Capitol Watch
- Colin McEnroe
- A CT Law Blog
- The Blog of LegalTimes
- The Blogfather (Howard Bashman)
If you find more links, let me know and I’ll update.
Btw, how wrong was I?
It’s time to let the incomparable Freddie have the last word: