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Connecticut Supreme Court Finds Same Sex Marriage Right in State Constitution:
The vote was 4-3, with a majority opinion and three dissents. Howard Bashman has the links here. From the majority opinion:
  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.
gerbilsbite:
Hmm, so is the court, in deciding that civil unions and marriage are functionally equivalent, going to grandfather in the unions as marriages, or will couples who have civil unions going to have to re-file?
10.10.2008 2:04pm
GMUSL '07 Alum (mail):
Civil Unions don't have the same cultural significance as marriage?

Clearly, that's a Constitutional injury that a court can remedy!
10.10.2008 2:13pm
Mike& (mail):
But I thought civil unions wouldn't lead to gay marriage! [/sarcasm]

I support gay marriage, but have always found the argument that "Civil unions will not lead to gay marriage," to be disingenuous.
10.10.2008 2:20pm
Jay Myers:
Why do we even bother having democratically elected legislatures any more? Let's just give crowns to the dudes in black robes and get on with our serfdom.

I'm for SSM but it has to be legally enacted through the will of the people and not by stamping our foot and saying that state constitutions mean today what we want them to mean and not what they have historically meant.

There can be no rule of law when the most fundemental law changes with the whim of the judiciary. We used to understand that. That is why everyone agreed that the constitution needed to be amended to grant women the franchise. Today someone would sue and the courts would reinterpret the constitution to get the desired result.

When the people vote to put something in a constitution then they are agreeing to take that subject out of the political arena. When judges read something into the constitution they are telling the people that they know best. Eventually the people will get fed up with being told by others what they can and cannot decide. That was one of the great motivations for the American revolution. We were tired of the King and Parliment usurping our self-determination.
10.10.2008 2:24pm
Anonymouse Troll:
Next thing you know, activist judges are going let the lesser races marry white folk, and give Mrs. Griswold a pass to take "the Pill"!!
10.10.2008 2:30pm
skyywise (mail):
@Jay Myers - I generally agree, but also believe there are times when social pressure requires a judicial decision to move forward. With controversial issues like this, legislatures will get battered back and forth by constituents or referendums, such as the current CA Prop 8, such that little to no progress is made on the issue, pressure and tensions only become more aggravated.

One of the best examples of this is Brown v. Board I &II. States needed a kick in the ass to implement desegregation, and it would have been political suicide for many politicians to support it at the time without a judicial mandate. Courts exist in part to be activist, to make the hard decisions, to judge what is equitable once all other avenues to a resolution are found to be intractable. This is a function built into the system. The Conn. Sup. Ct. decided now was the time for this social policy.
10.10.2008 2:57pm
Anderson (mail):
Well, now McCain and Lieberman can make it official.
10.10.2008 3:17pm
Kathleen Bergin (mail):
The language from Justice Norcotte's concurrence explains why civil unions just wont cut it:

We agree with the following point made by the Lambda Legal Defense and Education Fund, Inc., in its amicus brief: ''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.'' . . . As one prominent legal commentator has explained in discussing the establishment of civil unions: ''Such a step reduces the discrimination, but falls far short of eliminating it. . . ."
10.10.2008 3:54pm
The Oracle of Syracuse:
Orin Kerr: "Connecticut Supreme Court Finds Same Sex Marriage Right in State Constitution."

I wonder where it had been hiding all those years?
10.10.2008 4:24pm
Jay Myers:
(link)skyywise:

@Jay Myers - I generally agree, but also believe there are times when social pressure requires a judicial decision to move forward. With controversial issues like this, legislatures will get battered back and forth by constituents or referendums, such as the current CA Prop 8, such that little to no progress is made on the issue, pressure and tensions only become more aggravated.

That's called 'democracy'. When you short circuit it to impose your will that is called "autocracy". I prefer to live in a free and democratic land even if that means that many of my policy preferences go unenacted.
10.10.2008 4:46pm
Perseus (mail):
Courts exist in part to be activist, to make the hard decisions, to judge what is equitable once all other avenues to a resolution are found to be intractable.

At least you're honest about your view of the role of the courts, unlike those who dismiss "judicial activism" as a conservative canard.
10.10.2008 4:56pm
Malvolio:
That's called 'democracy'. When you short circuit it to impose your will that is called "autocracy". I prefer to live in a free and democratic land even if that means that many of my policy preferences go unenacted.
The American system is not a democracy, at least not in the sense of unrestricted majoritarianism that Mr. Myers seems to mean. A major role of the American court is to protect the rights of minorities (in the real sense of that word) even when the majority would be happy to ride roughshod over them.

I am not sure I agree that marriage is a Constitutional right but if a court finds it to be, the court is obligated to protect that right, regardless of legislation and regardless of popular will.
10.10.2008 5:56pm
Ryan Waxx (mail):

@Jay Myers - I generally agree, but also believe there are times when social pressure requires a judicial decision to move forward. With controversial issues like this, legislatures will get battered back and forth by constituents or referendums, such as the current CA Prop 8, such that little to no progress is made on the issue, pressure and tensions only become more aggravated.


And as we all know, progress is defined as moving towards The Correct Result, and no referendum, group of constituents, or legislature is to stand in the way of The Correct Result.

What scares me is that you are able to say that with a straight face, comrade.
10.10.2008 6:04pm
William D. Tanksley, Jr:
Courts exist in part to be activist, to make the hard decisions, to judge what is equitable once all other avenues to a resolution are found to be intractable. This is a function built into the system.


It _is_ a function built into the system; it's built into the legislature. The legislature writes the law, the executive implements it, and the courts apply it to specific cases.

(Well, actually, the legislature enriches itself, the executive flounders about aimlessly while drawing a paycheck, and the courts try to do all the hard work of governing that the other two branches won't do. End of snark.)

If there's not enough support in the legislature for an actual law, there's not enough support in society for it either.
10.10.2008 6:53pm
Randy R. (mail):
""Civil unions will not lead to gay marriage," to be disingenuous"

Well, it hasn't led to gay marriage in Vermont, and they were the first.
10.11.2008 12:27am
nyu law libertarian (www):
Gay marriage gay smarriage, I'm waiting for the polygamists to get a backbone (and a lawyer).
10.11.2008 12:34am
trad and anon (mail):
The Connecticut Supreme Court applied that state's constitution to gay couples using well-established principles of Connecticut constitutional law. Nothing new here, including whiny conservatives complaining that the court didn't apply the Connecticut Constitution Doesn't Protect Homos Clause. Problem is the Connecticut Constitution doesn't include any such clause, though many other state constitutions do.
10.11.2008 4:24pm
trad and anon (mail):
It _is_ a function built into the system; it's built into the legislature. The legislature writes the law, the executive implements it, and the courts apply it to specific cases.
And in this case the Connecticut Constitution is the highest applicable law. The court applied it, and did so correctly.
10.11.2008 4:26pm
T.S. Jones:
As a Conn resident I'm extremely dismayed that our black robed oligarchy can sidestep the popular will and the legislature's reasoned prior attempts to address this contentious issue, and with one vote declare by fiat the equivalent of "so let it be written, so let it be done." A pox upon them.
10.12.2008 11:36pm
Ryan Waxx (mail):

Nothing new here, including whiny conservatives complaining that the court didn't apply the Connecticut Constitution Doesn't Protect Homos Clause.


If there was actually nothing new there, one would wonder why anyone bothered writing a news story about it.

After all, we've always been at war with Oceania, right?
10.13.2008 8:05am