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4-3 Connecticut Court Finds Right to Gay Marriage in Constitution that Eluded Everyone Else for 200 years!

Posted by iusbvision on October 12, 2008

This is the silliest of the silly and this is why activist judges have to be kept off the bench. There has never been a right to heterosexual marriage so how can there be a right to gay marriage? If I have a right to marry than someone MUST marry me or my rights are violated. What is next, the right to have a boyfriend or girlfriend?

Trial Attorney Bill Dyer has the analysis from HughHewitt.com

Posted by: Bill Dyer

(Guest Post by Bill Dyer a/k/a Beldar)

In Kerrigan v. Commissioner of Public Health, over the protests of three members of the court (as expressed in three dissenting opinions), a four-member majority of the Connecticut Supreme Court has overturned as “unconstitutional” a statutory system whose long-standing components were passed by Connecticut’s lawmakers and signed into law by its governors over many years, and has instead decreed that henceforth in Connecticut, “same sex couples cannot be denied the freedom to marry.” Here’s the majority’s own summary of its reasoning:

We conclude that, in light of the history of pernicious discrimination faced by gay men and lesbians, and because the institution of marriage carries with it a status and significance that the newly created classification of civil unions does not embody, the segregation of heterosexual and homosexual couples into separate institutions constitutes a cognizable harm. We also conclude that (1) our state scheme discriminates on the basis of sexual orientation, (2) for the same reasons that classifications predicated on gender are considered quasi-suspect for purposes of the equal protection provisions of the United States constitution, sexual orientation constitutes a quasi-suspect classification for purposes of the equal protection provisions of the state constitution, and, therefore, our statutes discriminating against gay persons are subject to heightened or intermediate judicial scrutiny, and (3) the state has failed to provide sufficient justification for excluding same sex couples from the institution of marriage.

[How about this you pinhead judges, a marraige is a religious ceremony that has a contractual agreement with each other and the state. The legislative majority decides contract law by the consent of the people. Now four judges have decided that the people of Connecticut must enter that contract and issue a marraige license against their own will; not based on a characteristic, but based on the behavior of those demanding the license.  – IUSB Vision Editor]

Because the court relied upon its interpretation of the equal protection provision in the Connecticut state constitution rather than upon the comparable provision in the Fourteenth Amendment to the United States Constitution, there is effectively no chance that the U.S. Supreme Court will review today’s decision. That decision is now the law of Connecticut, subject only to being overturned by the Connecticut Supreme Court itself or by an amendment to the state constitution.

The judges who made up the majority in this ruling are precisely the kinds of judges whom Barack Obama and Joe Biden want to appoint the the federal bench. That’s why Obama and Biden voted against confirmation of both Chief Justice John Roberts and Justice Sam Alito. Instead, they want judges who will make law from the bench — and especially laws on the most controversial subjects (like gay marriage) that couldn’t possibly gather a majority vote in Congress and a presidential signature. It’s worse than meaningless, but rather a complete fraud, for Obama and Biden to tell voters that they oppose gay marriage when they will appoint judges who will bring about gay marriage by judicial decree.

This decision will alarm and dismay two partially overlapping groups of people: (a) those who believe that recognition of single-sex marriage will ultimately destroy the traditional institution of marriage and foster other bad effects in society, and (b) those who decry unrestrained judicial activism as a tyrannical seizure of political power by rogue judges in a manner that undercuts the legislative and executive branches of government, thereby rendering impotent the political decisions made by democratic majorities.

As a matter of constitutional law and basic principles of civil government, this is another well-intentioned but awful decision — one that may, ironically, end up frustrating rather than advancing the ultimate goal of its proponents. Using courts to cram this sort of policy down people’s throats — without majority support, and in fact in defiance of majority opinion — is a very bad plan.

Those who follow, or much care about, the constitutional law here will quickly note that the Connecticut Supreme Court has played fast and loose with its equal protection clause. In equal protection analysis, the outcome is almost always determined by the framework in which the courts choose to analyze a government classification. If the government is classifying people on the basis of race, for example, long-standing precedent from both federal and state courts typically use a “strict scrutiny” approach, under which the government must offer up a “compelling purpose” to support its decision to treat people differently from one another because of their respective races.

Classifications based on other distinctions, however, traditionally were treated as valid so long as they have a “rational basis” — a vastly easier standard to satisfy. The state discriminates, for example, against the sightless when it requires people who get drivers licenses to pass a vision test. But because sightedness — unlike, for example, race — is not a classification that has traditionally been subjected to “strict scrutiny” analysis under the constitutional precedents interpreting state or federal equal protection guarantees, the state merely need show a rational reason for treating the sightless differently. They meet that requirement by showing that people who can’t meet the vision requirements are more dangerous drivers. And as for whether someone with an uncorrected vision of 20/100 is or is not permitted to drive without corrective lenses, that sort of fine calibration of the state’s classification system the courts generally leave to a combination of state legislatures and state agencies, upholding their decisions unless they are so genuinely arbitrary as to have no correlation to reality.

Dyer is spot on correct, read the rest of his analysis HERE. Hotair.com comments HERE.

3 Responses to “4-3 Connecticut Court Finds Right to Gay Marriage in Constitution that Eluded Everyone Else for 200 years!”

  1. Jarrod Brigham said

    I think the right to have a b/f or g/f is found in the “pursuit of happiness”. As we all know, if you can’t do it on your own, there will be a government program created to help you get it done.

    [ROFL – good one :-) of course the pursuit of happiness was likely more intended to be the pursuit of wealth, property and commerce but there is no reason why BF or GF cant be in the prenumbra of the definition :-) – Editor]

  2. [Phil,

    Most of this is a repeat of arguments you posted along ago. In the process you mischaracterized one of my arguments and ignored anothers; arguments you were unable to defeat. Straw man arguments are easy to spot, but you arent trying to convince those who know better, you are hoping to convince those who do not.

    Simply repeating a massive wall of text and not seriously addressing my best arguments is no way to conduct yourself and as you well know, no one but the editor (me) is going to bother to read that wall of text. So if your goal is to convince me that when the founders wrote the constitution and when the Republican Party with the states passed the 14th amendment that they had a clear intention to create not only a right to marraige but a right to homosexual marraige, you have failed miserably. Judges who decide this way because they are judicial activists and wish to amend the constitution on the fly to suit their own emotional or social views are not only legally and historically incorrect, but they are also being intellectually quite dishonest; in doing so they earned the right to be called “pinheads”. I referred to them as pinheads because most of your arguments boil down to a logical falacy of the “appeal to authority” and then quote leftist, activist judges to validate what you laughingly try to present as a constitutionally correct point of view.

    Even though I explained all this in much greater detail before, you reduced most of that argument to a mere adhominom while leaving most of the substance behind it out. Before, I encouraged you to use more intellectual honesty in your arguments as opposed to the purely self serving and selectively edited material you have posted before, but I see that you have learned nothing.

    Why would there need to be an ERA according to intellectually honest legal scholars, or an amendment to give women the vote if the 14th amendment defined equality as you do (which isn’t equality at all it is tyranny redefined with a happy face); read Alexis de Toqueville for the meaning.

    For you and so many of the intellectually dishonest who just want what they want in spite of truth and reality – Its not what it is, its what it can be made to look like. – Editor]

    The argument has often been made by conservatives that the state high courts of Massachusetts, California, Connecticut, and Iowa “discovered” a right to gay marriage that had previously “eluded” the Justices for several hundred years. This argument is so facile and so disingenuous that I cannot understand how those who make it are able to do so without hanging their heads in collective shame.

    The movement for equality of gay Americans dates back to the late 1960s or the early 1950s (depending on whether one wishes to mark the beginning of this movement with the formation of the Mattachine Society, or whether one wishes to mark the beginning of this movement with the Stonewall Riots of 1969). Over the course of the past 40 years, gay Americans have made almost unbelievable strides in terms of securing legal recognition and legal rights. There were those conservatives such as Pat Buchanan, who gleefully predicted that the AIDS epidemic had dealt a literal and metaphorical death blow to the movement for gay equality; these commentators could not have been more wrong, as is evident today merely by glancing at the popular culture and by reading about the developments that gay men and lesbians have made, as a community, socially and politically since the late 1960s. Far from crushing and silencing the gay rights movement, the AIDS crisis galvanized that movement and made it clear to heterosexual Americans that gay persons are their brothers and sisters; their teachers; their postal worker; their doctors; their nurses; their police officers; and their soldiers, sailors, and aviators. I remember the 1990s as being a time of incredible energy and change within the movement for gay equality; even as I developed my career in Information Technology, I found my political voice and learned that I was able to write about issues impacting the rights of gay Americans, successfully and cogently. In short – instead of crushing the gay community, the AIDS crisis galvanized that community into broad-based social and political action, even changing the manner in which Big Pharma tested and released promising new anti-HIV drugs onto the market (today, almost all AIDS drugs that show promise are rapidly switched over to the experimental access arm of treatment, without sacrificing statistical integrity and without weakening or watering down the double blind placebo controlled protocols so widely used in the development and testing of such drugs). As we speak, a second integrase inhibitor is now undergoing Phase II clinical trials (elvitegravir, marketed by Gilead Sciences), while a third such drug, which may have a duration of action of up to four times longer than raltegravir (the existing integrase inhibitor), is also being developed.

    Never before have gay men and lesbians approached state high courts seeking marriage equality. I am aware of the case of Baker v. Nelson (1972), but to the best of my knowledge, this case was the only case on record since the early 1970s in which a gay couple sued a state seeking the issuance of a marriage license, and in which a state high court addressed the legal merits of their suit. Never before in history has the Connecticut Supreme Court been asked to decide whether the prohibition of gay marriage violates the equal protection or due process provisions of the Connecticut state constitution. To argue, therefore, that the Connecticut Supreme Court Justices “found” a right that it had never recognized before in its history is grossly disingenuous; this Court had never before been approached with this specific issue. Naturally, the Court would not have handed down a contrary decision in the past in the absence of a lawsuit approaching this Court and requesting the handing down of such a decision.

    Note – this is not to say that the framers of the state constitution anticipated the possibility of a gay couple approaching the state high court seeking a declaration of invalidity of the heterosexual-only marriage statute. I do not make this claim. Clearly, the framers of the state constitution were highly unlikely to have considered this issue when drafting the provisions of the state constitution. However, the fact that the framers of the state constitution presumably did not think such an issue would ever come before the state high court does not foreclose the right of the state supreme court to issue an opinion relative to this issue for the first time in its history. As the majority in Kerrigan noted, “A cognizable constitutional claim arises whenever the government singles out a group for differential treatment. The legislature has subjected gay persons to precisely that kind of differential treatment by creating a separate legal classification for same sex couples who, like married couples, wish to have their relationship recognized under the law. Put differently, the civil union law entitles same sex couples to all of the same rights as married couples except one, that is, the freedom to marry, a right that ‘‘has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men [and women]’’ and ‘‘fundamental to our very existence and survival.’’ Loving v. Virginia, 388 U.S. 1, 12, 87 S. Ct. 1817, 18 L. Ed. 2d 1010 (1967). Indeed, marriage has been characterized as ‘‘intimate to the degree of being sacred’’; Griswold v. Connecticut, 381 U.S. 479, 486, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965); see also Turner v. Safley, 482 U.S. 78, 96, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987) (‘‘many religions recognize marriage as having spiritual significance’’); and ‘‘an institution more basic in our civilization than any other.’’ Williams v. North Carolina, 317 U.S. 287, 303, 63 S. Ct. 207, 87 L. Ed. 279 (1942). Marriage, therefore, is not merely shorthand for a discrete set of legal rights and responsibilities but is ‘‘one of the most fundamental of human relationships . . . .’’ Davis v. Davis, 119 Conn. 194, 203, 175 A. 574 (1934). ‘‘Marriage . . . bestows enormous private and social advantages on those who choose to marry. Civil marriage is at once a deeply personal commitment to another human being and a highly public celebration of the ideals of mutuality, companionship, intimacy, fidelity, and family. . . . Because it fulfills yearnings for security, safe haven, and connection that express our common humanity, civil marriage is an esteemed institution . . . .’’ (Citation omitted; internal quotation marks omitted.) Goodridge v. Dept. of Public Health, 440 Mass. 309, 322, 798 N.E.2d 941 (2003).

    The Kerrigan majority made short work of the notion that no cognizable constitutional claim was brought before it by the plaintiffs when it noted that “We must interpret the constitution
    in accordance with the demands of modern society or it will be in constant danger of becoming atrophied and, in fact, may even lose its original meaning.’ . . . [A] constitution is, in [former United States Supreme Court] Chief Justice John Marshall’s words, ‘intended to endure for ages to come . . . and, consequently, to be adapted to the various crises of human affairs.’ . . . [McCulloch] v. Maryland, 17 U.S. (4 Wheat.) 316, 415, 4 L. Ed. 579 (1819). . . . ‘In short, the [state] constitution was not intended to be a static document incapable of coping with changing times. It was meant to be, and is, a living document with current effectiveness.’ . . . The Connecticut constitution is an instrument of progress, it is intended to stand for a great length of time and should not be interpreted too narrowly or too literally so that it fails to have contemporary effectiveness for all of our citizens.’’ (Citations omitted; emphasis in original.) State v. Dukes, 209 Conn. 98, 114–15, 547 A.2d 10 (1988).

    In short, the state high court had every right to consider, for the first time in its history, the constitutional claims of equal protection violation brought before it by the plaintiffs.

    The above passage highlights more clearly than could any academic treatise the difference between mainstream jurists, who view a constitution not as a static collection of statutes but as a living document that does not exist in a vacuum, and so-called “origionalists”, who view a constitution in precisely the opposite terms…

    Reason prevailed. In years to come, reason will continue to prevail.

    PHILIP CHANDLER

    IUSB Vision Editor writes: “How about this you pinhead judges, a marraige [sic] is a religious ceremony that has a contractual agreement with each other and the state. The legislative majority decides contract law by the consent of the people. Now four judges have decided that the people of Connecticut must enter that contract and issue a marraige [sic] license against their own will; not based on a characteristic, but based on the behavior of those demanding the license.”

    ************
    Response:
    ************

    First, note the usage of ad hominem by the Editor in his effort to make his point. Instead of rebutting the analysis adopted by the Kerrigan majority, the Editor dismisses the four-Justice majority by using the term “pinhead judges” to describe the Justices comprising that majority.

    Then the Editor makes a very serious epistemological error by alluding to gay marriages as being contracts based not on a characteristic but instead based “on the behavior of those demanding the license”. If this is indeed so – if being gay is merely a reflection of personal behavioural choice – then it follows, inexorably, that heterosexual marriages are also contracts based not on a characteristic but instead based “on the behavior of those demanding the license”. This is simple logic – if the Editor insists on reducing homosexuality to the sum of a number of sex acts, then the Editor is forced to reduce heterosexuality to the sum of a number of sex acts too. This is so because homosexuality is merely the obverse of heterosexuality; whereas most people are heterosexual (meaning that they are sexually and romantically attracted to, and form sexual and romantic relationships with, members of the opposite sex), some people are homosexual (meaning that they are sexually and romantically attracted to, and form sexual and romantic relationships with, members of the same sex). The Editor cannot have it both ways – if he is going to define homosexuality in terms of mere behaviour, then he is forced by logic alone to define heterosexuality in terms of mere behaviour. To attempt to do otherwise is to attempt to talk out of both sides of one’s mouth.

    The Editor then goes on to write: “This decision will alarm and dismay two partially overlapping groups of people: (a) those who believe that recognition of single-sex marriage will ultimately destroy the traditional institution of marriage and foster other bad effects in society, and (b) those who decry unrestrained judicial activism as a tyrannical seizure of political power by rogue judges in a manner that undercuts the legislative and executive branches of government, thereby rendering impotent the political decisions made by democratic majorities.”

    ************
    Response:
    ************

    Not one person opposed to gay marriage has yet clearly enunciated the manner in which the recognition of gay marriage “will ultimately destroy the traditional institution of marriage and foster other bad effects in society”. This assertion is merely repeated by those who make it as though this assertion gains credence through sheer force of repetition. I find it extremely difficult to imagine a scenario in which a heterosexual couple living in a state which permits gay marriage decides to call off their proposed wedding because that couple believes that the recognition of gay marriage in some way nullifies the meaning of their proposed marriage; and I find it even more difficult to imagine a scenario in which a currently married heterosexual couple living in a state which permits gay marriage decides to obtain a divorce because that couple believes that the existence of gay marriage in some way nullifies the meaning of their existing marriage. Indeed, the argument to the effect that the recognition of gay marriage “destroy[s] the traditional institution of marriage” boils down to a rephrasing of the “post hoc, ergo propter hoc” redundancy identified earlier – therefore and because of this, gay marriage destroys “traditional” marriage. A point which has been made, over and over, is that no church anywhere in the nation can be compelled to perform a marriage of which that church disapproves. The Catholic Church flatly refuses to remarry people who have been divorced. Some churches flatly refuse to marry mixed-race couples. In the six years that gay marriage has been legal in the Commonwealth of Massachusetts, not one instance has arisen in which any church has been forced to perform a gay marriage against its will. This is simply a non-issue – churches enjoy absolute discretion, rooted in their rights under the Free Exercise Clause of the First Amendment to the US Constitution, to marry or to refuse to marry any couples that come before them.

    Then we come to the tired old refrain about “unrestrained judicial activism” and the “tyrannical seizure of political power by rogue judges in a manner that undercuts the legislative and executive branches of government”. What this tired argument overlooks is the fact that our system of democratic government is predicated on the notion of checks and balances between three independent but co-equal branches of government. For well over 200 years, since the US Supreme Court handed down Marbury v. Madison, 5 U.S. 137 (1803), the nation has recognized the premise that “[i]t is emphatically the province and duty of the Judicial Department to say what the law is.” The Court went on to note that “[t]hose who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each. So, if a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.”

    Conservatives may indeed decry this decision as a “naked power grab” (God knows I have heard this description, and worse descriptions, before); nevertheless, this is the predicate decision on which rests the entire notion of judicial review itself. Other nations, as near as Canada and as far away as South Africa, have chosen to emulate this system in the creation of their own judiciaries. I was born and raised in South Africa; I left that nation for political reasons back in 1986 and became a US citizen by naturalization in 1994. The High Courts in South Africa may now strike down not just the implementation but also the substance of government legislation; any High Court decision striking down the substance of a statute on constitutional grounds must be ratified by the South African Constitutional Court, which sits at the apex of the South African judiciary. (A fine example of this exists in the form of The National Coalition for Gay and Lesbian Equality v. Minister of Justice (1998); this unanimous decision by the Constitutional Court upheld a strongly-worded decision handed down by Judge Heher of the Witwatersrand High Court, overturning the South African sodomy statute on constitutional grounds; the concurrence, written by CC Justice Sachs made the dissent written by Justice Stevens in Bowers v. Hardwick, 478 U.S. 186 (1986) sound tame by comparison.)

    The late Chief Judge William Rehnquist described the concept of judicial review as the “crown jewel” of the US judiciary in a speech he delivered shortly before he passed away.

    Whether or not the Editor likes it, the current state of the law in the US is that classifications based on gender (or sex) are subjected to “quasi-strict scrutiny” (a form of intermediate-level review), in which the challenged government action must be shown to promote an important government interest and must be shown to be substantially related to the promotion of the important government interest (Frontiero v. Richardson, 411 U.S. 677 (1973)); this standard of review was reformulated as requiring that the government demonstrate the existence of an “exceedingly persuasive” justification (see United States v. Virginia, 518 U.S. 515 (1996)). The US Supreme Court has long recognized that the Equal Protection Clause of the Fourteenth Amendment does not only protect racial minorities; although the protection of freed slaves may have been the catalyst for the crafting of this Clause by Representative Bingham and Senator Howard, this Clause protects all Americans from invidious discrimination. We have seen the protection of women in cases such as Frontiero, supra and Virginia, supra; and more recently, we have seen this Clause used to protect gay Americans (see Romer v. Evans, 517 U.S. 620 (1996), in which the Court appeared to embrace the logic contained in an amicus brief filed by Laurence Tribe, in which Tribe argued that Colorado’s infamous “Amendment 2” constituted a per se violation of the Equal Protection Clause). While there are indeed some so-called “origionalists” who assert that this Clause should not be used to protect minorities other than racial minorities, this is NOT the state of the law in this country at this time – and a massive body of equal protection case law exists, in which this Clause (and the equal protection component of the Fifth Amendment’s Due Process Clause (see Bolling v. Sharpe347 U.S. 497 (1954)) has been used to protect groups as varied as optometrists, schoolchildren, and voters (see Bush v. Gore, 531 U.S. 98 (2000), in which the Court effectively handed the Presidential election of 2000 to George W. Bush, employing an equal protection analysis over the vociferous objections of the separate dissenting Justices).

    The Kerrigan majority correctly reasoned that gay Americans possess even less political power than do women back in 1973, when Frontiero was decided using quasi-strict scrutiny; and it was on this basis that the Kerrigan majority held that gay citizens of Connecticut constituted a quasi-suspect class for the purposes of state equal protection analysis. The majority examined all four factors that are pertinent to the “suspectness” (or “quasi-suspectness”) inquiry, and correctly held that gay citizens met all four criteria. The majority opinion was praised even by one of the dissenting Justices for the degree of scholarship, analysis, and care that characterized the majority opinion.

    Gay marriage is now permitted in Massachusetts, Connecticut, Iowa, Vermont, and New Hampshire. Gay marriage is also now permitted in the District of Columbia. Furthermore, gay marriages performed in jurisdictions where such marriages are legal are recognized in New York and in Rhode Island. Slowly but inexorably, the dominos are falling. Just 10 years ago, not one state permitted gay marriage. Now, less than 10 years later, five states permit full gay marriage. Another five states (California, Oregon, Washington, Nevada, and New Jersey) have created statutory frameworks that grant to gay couples who choose to enter into these relationships all of the substantive legal benefits, rights, and privileges of marriage; and another four states (Hawaii, Wisconsin, Maryland, and Colorado) grant to gay couples a limited subset of the benefits, rights, and privileges of marriage. In other words, at least 14 states now recognize gay relationships at the state level.

    In due course, the misnamed “Defense of Marriage Act” (DOMA) will be repealed (or struck down, depending on the outcome of Perry v. Schwarzenegger).

    Both time and justice are firmly on our side…

    PHILIP CHANDLER

  3. Thanks for your blog post. I would also like to say that the health insurance agent also works for the benefit of coordinators of a group insurance policy. The health insurance professional is given an index of benefits searched for by anyone or a group coordinator. What a broker can is look for individuals as well as coordinators which usually best complement those requirements. Then he shows his ideas and if the two of you agree, this broker formulates a binding agreement between the two parties.

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