kerrigan

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.

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.