Courts Legalize Same-Sex Marriage in Connecticut

By Alan Stewart Carl | Related entries in Connecticut, Marriage, Sexuality

Same-sex marriage is now legal in Connecticut by decree of the state’s supreme court.

Once again, a matter that should be decided through the democratic process is usurped by the courts.

What’s really unfortunate is that Connecticut was the first state to allow civil unions not because of a court order, but because of a law passed by the state government. With enough time and effort, Connecticut could have become the first state to legalize same-sex marriage in a democratic manner.

I do not place all the blame on the courts. They have the right to interpret the law and certainly people of good conscience can disagree on such interpretations. What really irritates me is politicians who support civil unions but oppose gay marriage. That’s political expedience boarding on cowardice.

During the Vice Presidential debate, when Joe Biden affirmed his and Barack Obama’s opposition to gay marriage, I thought I heard chickens bawking in the background. I don’t for a minute believe politicians like Obama and Biden have a moral problem with gay marriage but are just fine with civil unions and homosexuality in general.

If they and other elected officials had the courage to fight for same-sex marriage in the court of public opinion, we might not see so many courts of law preemptively deciding the matter.


This entry was posted on Friday, October 10th, 2008 and is filed under Connecticut, Marriage, Sexuality. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

12 Responses to “Courts Legalize Same-Sex Marriage in Connecticut”

  1. Tim in Wisconsin Says:

    “What really irritates me is politicians who support civil unions but oppose gay marriage. That’s political expedience boarding on cowardice.”

    I disagree. Why is the government marrying anyone anyway? The government should get out of the marriage business entirely and remove all references of the term from the legal code. The term has too much religious backstory for the government to adopt it. Instead, there should be legal recognition of civil unions, which would exist for heterosexual and homosexual couples alike. By separating the legal implications from the social and religious ones, much of the objection evaporates. For much of America, the hangup is in that word.

    Let the churches decide who gets “married”. The Unitarians and Congregationalists would jump at the opportunity to marry homosexual couples. The Southern Baptists and Catholics would never do it. Let them argue about it. For the government to be involved in this debate is as inane as them taking sides in consubstantiation versus transubstantiation or faith versus works. The government would just recognize civil partnerships and accord them the tax breaks, property rights, and whatever else goes along with the deal. God may not like gay marriage, but he can’t do anything about who gets to file jointly.

  2. mike mcEachran Says:

    Or we go the other way, and gays could establish a Church of Gayness, and declare gay marriage a central tenet. Then they could invoke “Free Practice”. Sounds ridiculous? Exactly. Keep the government out of church sanctioned anything…including marriage.

  3. Alan Stewart Carl Says:

    Tim, you know, I used to make the exact same argument. I think I can even find an old post of mine from my original blog … here it is.

    But I’ve come to believe that, while it might be preferable to separate the religious act of marriage from the governmental act of bestowing rights, it’s not politically feasible. We’re not going to get municipalities to stop issuing marriage licenses and we’re not going to rewrite volumes of laws currently on the books. The only real politically possible course is to move same-sex unions into the existing legal structures of marriage. Obviously this upsets people, which is why it should be done democratically and not through court decree. But I just don’t see how we can advance the cause any other way.

  4. Jacob Says:

    The courts are right. I don’t think this is an issue that the people can decide. It’s about fairness. I understand gay marriage might make some people uncomfortable but so did: interracial marriage, desegregation, slavery, women voting, etc. The courts may not have made the decisions on each of those issues, but the courts that sanction same-sex marriage are doing so based on these now legal institutions and the equality clause that is the 14th amendment. If left up to the democratic process people would be unequal. That is why we have the courts- to make sure people are treated fairly. Beware the tyranny of the majority.

  5. duus Says:

    Carl wrote: while it might be preferable to separate the religious act of marriage from the governmental act of bestowing rights, it’s not politically feasible.

    …and gay marriage *is*?

  6. Karen Says:

    “Let the churches decide who gets “married”. The Unitarians and Congregationalists would jump at the opportunity to marry homosexual couples.”

    This scenario already exists – except for the equality of same-sex and opposite-sex couples. Church marriage I have (Unitarian) – legal marriage I do not. They are two completely separate entities, and neither depends on the other. The current legal term for “legal recognition of civil unions” is “marriage”.

    The problem is, we’re using the same word to mean two different things. That’s fine, except that it confuses people. Also, we’re having a hard time getting to that place where “legal recognition of civil unions” – marriage actually does “exist for heterosexual and homosexual couples alike.”

  7. Alan Stewart Carl Says:

    Jacob: you have high faith in the judgement of a very few people. There is no right to gay marriage in the constitution, it has to be interpreted. I prefer the messier democratic process over the interpretations of a very few.

    duus: long-run, I believe it is.

  8. kranky kritter Says:

    Well Alan, I don’t recall any right to ANY marriage in the federal constitution. Let’s not forget that these recent rulings are all state rulings. And they’ve been haphazard because each state has different ways of wording and assembling their laws.

    It’s reasonably defensible for a justice to rule that a practice is allowed if a state has not specifically prohibited it, and to rule that a simple generic declaration of equal rights across classes extend quite broadly. It’s utterly within the domain of variance of judicial philosophy.

    I strongly agree with Tim above on the ideals and the best way to draw the lines. And I agree with you that the feasibility issue is a legitimate question. I also agree with you that IDEALLY such matters would be determined by legislatures. However, the lesson of variance in judicial philosophy really ought to be that you should write the law you want with great care and specificity.

    I wonder whether courts ruling in favor of gay marriage where state constitutions fail to prohibit it while generally extending broad civil rights will be subject to the same level of vitriol as say RvW. While a substantial fraction of several post RvW new generations has seen fit to adopt a pro-life perspective, I am skeptical that this will be mirrored with gay rights. My perception is that the vast majority of the young adults in the current generation view anti-gay sentiment as the province of cranky old douches.

    In other words, abortion is likely to remain an issue and keep alive the “judicial activism” issue, but 20 or 30 years from now most folks will regard anti-gay sentiment with the same disgust most of us view racist and sexist sentiment. So adding the gay marriage rulings to the list of grudges held by anti-judicial-activism folks will be a tough sell.

  9. John Says:

    I may be wrong, but there is no right to marriage at all in the constitution? So, should a state be able to outlaw marriage entirely in that state? Along with that, similar to states that refuse to acknowledge gay marriages in other states be permitted to dissolve the marriages in their state from states that allow marriage? I realize this is reducing this discussion to a ridiculous point, but it goes to the overall argument, that it is a freedom in this country that should be shared by all. Courts, if the government will not act, are there to insure Justice. This is a case of justice.

  10. Alan Stewart Carl Says:

    It’s true that marriage is not mentioned in the constitution. Of course, there is a lot of common law history — so much so that I imagine it didn’t even cross the Founders’ minds to include a specific right to marriage. Of course, that makes the whole issue all that more tricky for judges who tend to rely more on their state’s specific constitution rather than the U.S. version. So, yeah, I think everyone here has good points and I’m glad to see this being discussed intelligently.

  11. wj Says:

    I don’t know about other states, but in California the major difference between “domestic partners” (the California version of civil unions) and marriage is that domestic partners get most of the benefits of marriage, without having to take on the obligations. That ability to evade the obligations is why the majority of domestic partnerships here remain heterosexual ones.

    What I don’t inderstand is how any conservative with a belief in people taking responsibility, can favor anything but abolishing domestic partnerships, even if that requires legalizing marriage for homosexuals.

  12. Jay Says:

    It would be extremely feasible to get government out of marriage, the state simply passes a law that states “This state shall not grant or recognize marriage from such and such day forth, any two persons may legally contract in a civil union and receives the same rights and benefits as those formerly given to married persons. All persons married before said date shall have their marriages still recognized. All out of state marriages shall be deemed and treated as civil unions by this state” Then the Federal government has to give equal status to persons in civil unions and domestic partnerships as those given to spouses, and you are there. simple. The President by executive order could require Federal agencies and the military to treat civil unions/domestic partnerships the same as marriage All the eons of old law with marriage in them translates over to civil unions.

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