Category Archives: same-sex marriages

So what happens after a Constitutional Convention?

Given the important question that will appear on our ballots here on November 4th, I’ve had a few questions swirling in my head for the past few weeks. Here are some of them:

  • Who pays for a Constitutional convention?
  • How much does it cost?
  • How long does one last?
  • How do issues get debated at a ConCon?
  • Do we still have to vote on the issues after they’re approved by the convention?
  • What happens when direct initiative is approved?
  • Why do we need legislators after direct initiative is approved?
  • Can the legislature supercede a law passed by referendum?
  • What’s to stop people from putting abortion to a popular vote?
  • What’s to stop people from repealing Article 1, Section 8 of the State Constitution (the bill of rights, as it were)?
  • How is this push for a Constitutional convention not driven by bigotry?
  • Can one voter initiative repeal an earlier one?
  • What will the point of a legislature be, if we can pass all laws?
  • Is the legislature forced to fund all initiatives that pass?
  • What if they can’t?
  • What if a Constitutional Amendment violates another provision of the Constitution?

There are so many variables here. CT News Junkie has a nice piece touching on a few of these aspects, but that still leaves many unanswered questions.

For example, if a statute is passed establishing a three-strikes law, what’s to stop the legislature from passing a new statute declaring the previous statute void? And so on and so on in circles?

It seems to me that this call for a concon is driven solely by special interest groups that know they don’t have the votes in the legislature and want to to get their agenda approved.

The system works very well as it is. Why fix something that isn’t broken?

This is why I’ll be voting no. What about you?

Same-sex marriage: How long will it last in CT?

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.

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.

Same-sex marriage legal in Connecticut (with music)

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.’’

Footnote 14.

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:

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:

Breaking: same sex marriage legal in CT

In an historic decision, the CT supreme court today struck down the civil union statutory scheme as violating the equal protection clause of the State constitution.

Gay marriages are now legal, by a vote of 4-3. The opinions are available on the judicial website.

More later. This update brought to you courtesy of my lunch hour and my new iPhone.

Can the Constitution be unconstitutional?

Okay, so I wasn’t exactly honest with that question. The real question is: can a Constitutional Amendment be unconstitutional? (But since a Constitutional amendment becomes the Constitutional, it wasn’t exactly dishonest, either.)

Now this is a purely hypothetical question, because in most cases, there wouldn’t be an amendment that also didn’t repeal a prior amendment that it contradicts. But let us assume there is no such provision.

So can Congress (or the voters of a State through a referendum or the state legislature depending on where you live) pass a Constitutional amendment that is unconstitutional?

The answer seems simple enough: No. But why? What is to stop the voters of a State like CT from voting for a Constitutional convention (which will be on our ballots Nov. 4), at which they get passed a voter referendum law, which they then in turn use to amend the Constitution to prohibit..say…same-sex marriages?

There’s nothing explicit in the CT Constitution about marriage being between a man and a woman, but CT does have the equivalent of the equal protection clause (Article I, Section 20). Assuming that sexual orientation is a protected classification like race, gender, would such a Constitutional Amendment banning same-sex marriage be in violation of Article 1, section 20? Who would get to decide that?

Can the Supreme Court of CT (or SCOTUS) decide that one State constitutional amendment violates another provision of that same constitution?

If no Court can rule that the Constitution is unconstitutional, then what is the interplay between those amendments and/or provisions that are contradictory and what is the state of the law between the passage of any such amendment and the eventual further amendment repealing either of those provisions?

Courts in the U.S. haven’t dealt with this issue yet (and I suspect won’t have to), but other countries have (holding that the government is restricted in its ability to alter the Constitution).

Any ideas? Thoughts?

Further reading: