I've just read the opinions in the Connecticut gay marriage case (available here). I'm sorry to say the dissent, or at least the smart dissent (never mind Justice Zarella's ramble about procreation), has a compelling argument-and that the Connecticut Supreme Court has done us no favors.
Basically Connecticut reruns the May California decision imposing same-sex marriage. The majority in Connecticut finds that gays are a "quasi-suspect class," a disadvantaged minority which needs court protection. This means that laws disadvantaging gays receive heightened scrutiny. Discriminating against gay couples by denying them the right to marry does not survive heightened scrutiny. So gay marriage is required by the state constitution.
It's a defensible analysis. But here's the thing: like California, and very much unlike Massachusetts in 2004, when that state's Supreme Court ordered SSM, Connecticut was not proposing to give gay couples nothing as an alternative to marriage. To the contrary: in 2005, the state legislature enacted civil unions, granting every state right and responsibility of marriage, and withholding only the designation "marriage" itself.
As the smart dissent, by Justice Borden (joined by Justice Vertefeiulle), notes, most political observers in Connecticut agreed that the conversion of civil unions to marriage was just a matter of time, and "sooner rather than later." The state's steady stream of pro-gay legislation, topped off by civil unions, makes the idea that gays need the court's protection from a hostile majority seem obsolete. So says the dissent, and I'd add that, as a political matter, we ought to be maturing beyond official victim status, not welcoming it.
Second, the issue before the court was: Is man-plus-woman a discriminatory restriction on marriage, or is it part of the very definition of marriage? I, and probably most visitors to this site, hold the former view; but it's foolish to pretend that the notion of same-sex marriage isn't newfangled. If the people of Connecticut aren't quite ready to go all the way to changing what many regard as the core definition of marriage, should it be unconstitutional for them to compromise on civil unions while catching their breath? In effect, what the court has done here is to make patience illegal.
Back in May, commenting on the California decision ("Hold the Champagne"), I called this kind of all-or-nothing thinking "legal totalism", which,
it seems to me, is tailor-made to rule out any kind of accommodation, even if that accommodation gives gay couples most of what we need with the promise of more to come (soon). I think SSM is a better policy than civil unions. And I think denial of marriage to gay couples is discriminatory. But to make even a well-intentioned compromise ILLEGAL strikes me as a step too far, and a good example of how culture wars escalate.
And now, once again, a court pulls the rug out from under a compromise that gives us 95 percent of what we want uncontroversially. Once again, other states are put on notice that they'd better not enact civil unions unless they want to get SSM instead. And could the judges' timing possibly have been worse? This may cost us California, which is voting next month on whether to retain SSM. It may also cost us Arizona and/or Florida, which are voting on anti-SSM propositions.
I hope I'm wrong. But at the moment I wish nothing more than that our side would recognize the court-driven SSM strategy for what it has become: exhausted and counterproductive.
More: Here's a contrasting view, courtesy of Paul Varnell.
21 Comments for “Hold the Champagne—Again”
posted by Jorge on
I haven’t read any of the dissents yet. I can’t say I disagree much with this post. Yeah, you would think it’d be harder to win legal recognition for gay marriages in states that already grant civil unions that offer all the legal benefits of marriage except for the actual title “marriage.”
I don’t think the question is if it’s discriminatory or if it’s part of the definition of marriage to restrict legal marriage between a man and a woman. The only question in my mind is how are we affected by the current laws? Is it oppressive? What is the harm, where is it? How extensive and pervasive is it? That’s much more important to me than whether things are fair. Everything’s unfair, but not all unfair things can be overcome by our own resources. Sometimes we do need a judicial intervention to guarentee our civil rights. We should seek that intervention selectively, in recognition of just how vital civil rights concerns are. Civil rights is becoming a partisan issue now, and it’s because so many on the political left have really cheapened the term. It’s mind-boggling how many gays have bought into that considering how terrible the reputation of “civil rights” has become in this country–but the left never recognizes that.
If a core liberty is being denied, it should be easy to explain just how pervasive that harm is. Yet the majority opinion only cited the pervasiveness of historical discrimination. I am not convinced that just because we have one particular restriction, we are obligated to link it to a pattern of pernicious homophobia. (Heterosexism, maybe, but I see nothing wrong with heterosexism in a society that’s at least 90% straight.)
posted by Geoff on
There is one distinction between civil unions and marriages, which is mostly important for ex-pats. Canadian immigration law provides for same-sex spouses to be treated just like heterosexual spouses for immigration purposes. It does not recognize civil unions. I’m not aware if any other countries make this distinction.
http://www.cic.gc.ca/english/immigrate/sponsor/spouse-apply-who.asp#spouse
There are provisions for “common-law partners”, but unlike marriage there is no automatic recognition of the relationship; you need to provide proof of cohabitation (and presumably common-law status can be rejected if your evidence is insufficient).
posted by GeorgeP on
I’m one pissed off Connecticut resident. My partner and I had a beautiful civil union ceremony three years ago, and while it may not be the exact replica of a marriage, it has been good enough for us. Suddenly marriage replaces civil unions… now what do we do? Is our civil union invalid? Must we have another ceremony? And most importantly, will there be a similar ballot initiative as there now is in California that, if passed, will negate both marriage AND civil unions?
It’s not well publicized here in the Constitution State, but there is a ballot initiative this election on instituting a constitutional convention. The ConnConCon (cute), as it’s known, will make it possible to have the very proposition facing Californians this year on the ballot in Connecticut. Already the Catholic bishops are urging their congregations to vote yes.
The timing of this ruling is lousy. And for those gays who complained that civil unions aren’t good enough: you just screwed things up for the rest of us.
posted by Huntington on
Jorge, reading you “see nothing wrong with heterosexism in a society that’s at least 90% straight” brought me up short. It made me realize I didn’t have a working definition of heterosexism vs. homophobia. Now, dictionary.com isn’t Authority, necessarily, but it’s a good starting point:
Heterosexism: a prejudiced attitude or discriminatory practices against homosexuals by heterosexuals.
Homophobia: unreasoning fear of or antipathy toward homosexuals and homosexuality.
Hmmm. I think it’s actually heterosexist practice that we’re trying to eliminate here, right? Homophobia will have to fade away on its own, but why are “discriminatory practices against homosexuals by heterosexuals” OK in a society that’s 90% straight.
posted by Jeff Jacobberger on
I agree with Rauch’s comments. The courts should step in to defend civil rights where the political process is not working. The political process almost always works imperfectly and incrementally. California’s domestic partership law provides a clear example. It started as a bare-bones registry that gave almost nothing other than hospital visitation rights, but has been amended repeatedly so that it is the virtual equivalent of marriage. The state legislature twice has passed marriage bills, which were vetoed by Schwarzenegger. We were a Democratic governor away from legislatively-enacted same sex marriage. It would be a different story in a state like New York, where wide majorities support gay civil rights, but an obstinate Republican leadership in the State Senate has kept most gay rights bills from even coming up for a vote. In California, only 60,000 people have contributed to the No on 8 campaign. Even among gay people, we have lost any sense that we must fight for our rights, and instead think that we can sip martinis while courts hand them to us.
posted by Mark on
While you’ve made it clear that you think the consequences of the decision may be negative for gay equality, it’s hard to tell from your post if you think the CT Supreme Court actually made the wrong decision considering their proper role and constraints.
It’s one thing to argue that civil unions are best from a policy perspective as they are a decent compromise and lessen the chance of any immediate backlash or pushback from the majority. It’s another thing to argue that the CT Supreme Court should reject SSM claims for policy reasons that favor gay equality, which is what you seem to be doing.
You say that what the CT Supreme Court has done is “to make patience illegal,” and that a compromise should not be unconstitutional. Unfortunately for your argument the CT Constitution is written fairly starkly in absolutes. Halfway measures, even for the benefit of a long-term strategy toward greater equality, are not sanctioned by the Constitution.
You make what looks like a halfway thought out attempt to attach your policy preference to CT constitutional jurisprudence by saying that gays should not be considered a quasi-suspect class because of the existence of civil unions and the steady stream of pro-gay legislation. That might work in the State of Rauch, but there is a long history of decisions at the CT state and federal level that explain how any suspect status is determined. The majority opinion went through an exhaustive analysis in which they very persuasively showed that denying gays quasi-suspect status would put the Court at odds with well-established precedent that granted the same status to women and suspect status to racial minorities. Would you have them contradict this precedent?
Perhaps I’ve read too far into your post, and maybe you simply feel that the CT decision was right jurisprudentially but still a potential setback for gay equality in the long run. If that’s the case however, your beef shouldn’t be with the opinion or the Court, but with the advocacy groups who decided to bring the cases in the first place.
posted by Jorge on
Hmmm. I think it’s actually heterosexist practice that we’re trying to eliminate here, right? Homophobia will have to fade away on its own, but why are “discriminatory practices against homosexuals by heterosexuals” OK in a society that’s 90% straight.
Because they are a legitimate expression of majority rule and social norms that do not necessarily infringe on the civil rights of gay people.
“Heterosexism”, as I understand it, is a very rarely used word used generally by liberal academics (I’ve certainly never heard it outside college) in the context of pervasive social discrimination, in the same way they describe racism as including institutional racism and sexism as including the Old Boys’ Network. Heterosexism also describes attitudes and behaviors that seem “natural” to most people but which in effect favor heterosexuals by assuming all people are heterosexual.
I suppose I’m using the word heterosexism more narrowly than you are. I think it’s a broader term than homophobia, which means it includes things that are not motivated by fear, hatred, or ignorance of gays, things based more or less entirely on power.
I think the ways liberals decribe institutional racism and sexism are accurate, but I don’t consider them civil rights issues. I consider the burden to be on the “disadvantaged” groups to assimilate with or assert themselves against institutions that they do not fit into, rather than on the powerful group to change an institution that has worked for most people to suit the needs of a few people.
I am very strongly against the idea that is necessary to eliminate all sexism, racism, and heterosexism in society. I consider that to be reverse-racism (etc.). Maybe it’s a desirable ideal, maybe not.
posted by Jorge on
I agree with Mark. It’s really strange to blame the courts for poor political timing. They’re supposed to act independently of politics.
That whole quasi-suspect status was a big difference between the CT decision and the NY decision in 2006. NY used the rational basis test in its decision not to overturn the marriage law. But on re-reading the decision, I see that the difference is even more basic. The NY State Court of Appeals simply did not recognize a law “limiting the definition of marriage to opposite sex couples” as “restricting the exercise of a constitutional right”. Only if the court comes to that conclusion does the quasi-suspect status apply.
posted by Throbert McGee on
And now, once again, a court pulls the rug out from under a compromise that gives us 95 percent of what we want uncontroversially.
Not only that, but assuming that Connecticut passes an SSM law to comply with the court’s ruling, exactly what will same-sex couples have gained? Well, they’ll have what they already have with CT civil unions, plus they’ll have the word “marriage.” But their newly-renamed partnerships still won’t be legally recognized by the federal government, or by most other states outside of CT, right?
Furthermore, Connecticut residents who believe that same-sex “marriage” is a phony-baloney Secular Humanist concept to be enclosed in scarequotes are STILL going to think it’s phony-baloney (as, of course, is their right), even though the gay couple next door now has an official state certificate with the M-word on it.
Anyway, kudos to Rauch for pointing out the foolishness of disdaining Civil Union legislation as though it were a sack of dead fish, rather than a reasonable interim compromise.
posted by Throbert McGee on
I think it’s actually heterosexist practice that we’re trying to eliminate here
I think it’s better to focus on eliminating “heterosexism,” the word, from political discourse — using it is like wearing a sign on your forehead that says I’m a perpetually whining grievance-monger and you should ignore everything that emits from my mouth.
Does this mean keeping silent if heterosexuals make dumb generalizations implying that no one around them is homosexual? No — but you can say, “Gosh, that was a mighty dumb fuckin’ generalization, ass-hat.”
There are probably more tactful ways to phrase it, but the important point is that you’re attacking the illogic of his statement, rather than making your interlocutor, as a person, into the hetero-oppressor of homo-victims.
posted by Mikeybackwards on
As one who lives in Kansas (as bigoted as you thought) and self-identifies as non-gender specific; and a reader of Rauch’s book – Gay Marriage: Why It Is Good For Gays, Good For Straights, and Good For America; I find this post rather odd. It almost seems as if Rauch is arguing something completely at odds from his primary thesis in his book that not only is gay marriage good for gays, straights, and America – but that setting up any other system necessarily attacks the institution.
I will probably not ever marry – either a man or a woman; for reasons that have nothing to do with sexual identity. But, I will always defend the right of everyone to marry the consenting adult of one’s choice without regard to gender.
I find the argument that because we have all the privileges and perogatives except (as Rauch argues in his book, but seems to abandon here) the respect, social approbation, and responsibility constitutent to marriage; and perhaps the state will deign to confer these at a later date (which is by no means certain in either California or Connecticut); we should have been happy with that half-way point and subjected ourselves to continued denial of the full right of marriage; seems to me to be specious at best.
I have lost a great deal of respect for Mr. Rauch today that had been engendered by what I did and continue to see as Mr. Rauch’s views as espoused (pun intended) in his book. Should we permit fear to force us to accept a legal fiction that intra-sex relationships are as valid as inter-sex relationships in the uncertain hope that a society will someday accept and grant the protections appertaining to those rights? Or rather, should we state, as the plaintiffs in this case claimed, concurred by the Supreme Court of the State of Connecticut; that anything less than equality is inequality.
I agree that the we, as a community, need to leave behind the role of legal victimhood. However, I disagree that we should not utilize every tool at our disposal to secure legal equality. Victimhood can only be left behind when full equality is achieved – because so long as we are the victims of legal discrimination and legalized inequality – we are still victims of the same. We can not move beyond this status until we are no longer victims.
Rather than quail and quake in fear that those who refuse to grant us equality will undertake draconian action to strip away those protections of our rights already recognized under the law – we should attack the repugnant notion that a majority should ever be permitted to legislate and/or vote to strip the rights and the incumbent humanity from a minority.
So I ask – we will be moral cowards unwilling to simultaneously defend will all vigor our recognized rights will continuing the struggle towards full equality? Something Benjamin Franklin wrote in the dawn of our nation seems to me rather cogent to this discussion: He who is willing to sacrifice liberty for the illusion of safety is deserving of neither liberty nor safety. After all, if we concede that an opprobative majority has the right to strip away our freedoms by a vote – then those freedoms are not rights, but illusions. And only one who wishes to remain a victim will settle for an illusion rather than freedom.
posted by MikeyBackwards on
Edit on my previous comment; the first sentence of the final paragraph should read:
So I ask – we will be moral cowards unwilling to simultaneously defend with all vigor our recognized rights while continuing the struggle towards full equality?
posted by Rob on
Not only that, but assuming that Connecticut passes an SSM law to comply with the court’s ruling, exactly what will same-sex couples have gained?
Well for starters, less headaches when it comes to filling up forms and getting marriage benefits. It simplifies the system. Come to think of it, the government would have saved more resources if they hadn’t constructed a separate system.
Well, they’ll have what they already have with CT civil unions, plus they’ll have the word “marriage.” But their newly-renamed partnerships still won’t be legally recognized by the federal government, or by most other states outside of CT, right?
Thanks to DOMA, pretty much yes. However their marriages would be recognized in all states and countries which have same-sex marriage. Civil unions are usually locked within the state unless arrangements have been made with other states. Simply put, there is no civil union standard, and quite frankly, it’s a waste of time and resources to implement one.
posted by Pat on
I’m one pissed off Connecticut resident. My partner and I had a beautiful civil union ceremony three years ago, and while it may not be the exact replica of a marriage, it has been good enough for us. Suddenly marriage replaces civil unions… now what do we do? Is our civil union invalid? Must we have another ceremony? And most importantly, will there be a similar ballot initiative as there now is in California that, if passed, will negate both marriage AND civil unions?
GeorgeP, congratulations on your civil union. I’m guessing that when you and your partner decided to enter a civil union, you did so because, at the time, Connecticut did not have marriage, and if they had, you would have opted to marry. If that’s the case, simply get married. If you want to have a party for it fine. If you don’t, and regard your civil union ceremony as your marriage, that’s fine too. And if people ask how long you’ve been married, say you’ve been married since 2005.
posted by Deoxy on
The whole idea of “finding” the right to SSM in existing Constitutions has always been a bad one, from many perspectives.
The most obvious (as mentioned here) is the sense of resentment it puts into the majority of people – the way it basically says, “We’re your master, and we’ll decide what we freaking want.” There’s a reason people refer to SCOTUS as the nine black-robed tyrants.
ANY judicially-imposed changes of this scale are a bad idea – Roe v Wade is still an issue 30+ years later because of this, for instance. If not for that decision, abortion as a major issue would have been decided years ago, probably with different states with somewhat various rules, but it wouldn’t rankle anywhere near as bad as it does today.
Secondly, I think SSM advocates need to be more honest about the likely effects of SSM, and make the case FOR those effects, instead of trying to hand-wave them away.
In case it wasn’t clear, I’m a pretty conservative guy, though my political leanings are libertarian (I don’t trust the government with the power to enforce the morality I like, and I’m pretty sure I wouldn’t WANT them to even if I did), and the whole redefinition of a fundamental concept of society by the elites in spite of the desires of most of society really gets my attention, and not in a good way.
BUT
I could be convinced (indeed, I can even make the argument myself, and HAVE) that the likely end effects of SSM are good for us, at least in terms of what effects it has on the government: “marriage” will be a simple contract-style arrangement that has certain legal effects (inheritance, power of attorney in certain medical conditions, property issues, etc), and it will be widely applicable to any group regardless of sexual issues (or lack thereof) – any group that has reason to live together for a significan length of time might have use for it (a child caring for an aging parent, for example).
I find it highly annoying that the term “marriage”, which has had a fairly stable definition for the entire course of human history (a man and almost always one women, though occasionally more – even societies where homosexuality was accepted still had other words for those other arrangements) is getting messed up. “Civil union” really was a BETTER term, as it describes the general situation, while “marriage” would be a specific subset of those, legally indistinct, but useful for many reasons (example: “church” and “non-profit group” – the vast majority of churches are non-profits, but there’s no reason to call all non-profits churches – no, that’s not a perfect analogy).
If you were pushing for something like that, you could get a LOT more support. People like to have words for things – there’s no reason to get hung up on the fact that “marriage” has a meaning, and that people don’t want that disctinction lost, even if they are quite willing to give all the legal rights and benefits to other arrangements.
posted by Jorge on
I find the argument that because we have all the privileges and perogatives except (as Rauch argues in his book, but seems to abandon here) the respect, social approbation, and responsibility constitutent to marriage; and perhaps the state will deign to confer these at a later date (which is by no means certain in either California or Connecticut); we should have been happy with that half-way point and subjected ourselves to continued denial of the full right of marriage; seems to me to be specious at best
How on earth can the state even grant us that respect, social approbation, and responsibility? You don’t write a law and magically respect appears. You have to convince and persuade people. This takes a long struggle. It has to make sense to people. These court decisions are doing the exact opposite of promoting respect and a recognition of the social status for gay marriage. They are turning popular opinion even more strongly against gay marriage.
I do not think we should ever be happy with the halfway point. Settling for even legal recognition of marriages falls far too short of our goals. Most Christian religions and most people will still be hostile toward gay marriages. But there is such a thing as the perfect becoming the enemy of the good.
posted by tavdy79 on
If the people of Connecticut aren’t quite ready to go all the way to changing what many regard as the core definition of marriage, should it be unconstitutional for them to compromise on civil unions while catching their breath?
53% of Connecticut residents support the state Supreme Court’s action; 42% oppose it. That’s better odds than California’s had so far.
posted by Marty on
If you want a second-class “separate but equal” marriage, then by all means, marry someone of your own gender.
But if you believe that separate can never be equal, and demand a first class marriage, then you’re going to have to bite the bullet and make sure your marriage includes members of both sexes.
Mother Nature is heterosexist. Get over it.
posted by Rob on
How on earth can the state even grant us that respect, social approbation, and responsibility? You don’t write a law and magically respect appears. You have to convince and persuade people. This takes a long struggle. It has to make sense to people. These court decisions are doing the exact opposite of promoting respect and a recognition of the social status for gay marriage. They are turning popular opinion even more strongly against gay marriage.
Wrong. Those decisions are only unpopular in the short term. They’ve allowed people to be exposed to the concept of married same-sex couples, from which they’ve realized that the sky hasn’t fallen. In Canada and in Massachusetts, the majority is now in favour of keeping same-sex marriage, and recognize the positive effect it has on society. A lot of the opposition really came from fear of the unknown, and the only way of defeating it is by exposure.
Anyhow here are the polls indicating the trends:
http://www.religioustolerance.org/hom_poll5.htm
http://bostonphoenix.com/boston/news_features/this_just_in/documents/04669634.asp
I do not think we should ever be happy with the halfway point. Settling for even legal recognition of marriages falls far too short of our goals. Most Christian religions and most people will still be hostile toward gay marriages. But there is such a thing as the perfect becoming the enemy of the good.
Not that it matters, religious institutions are on the decline in North America and Europe.
posted by Jorge on
I’m a little skeptical of the Massachussets poll because… it’s only one poll, and it was commissioned by a gay rights group. I don’t know who they are or how the asked the questions.
What I’m getting from the poll numbers from religioustolerance.org is that support for gay marriage is increasing, but it also mentions that among Republicans and white evangelical Protestants, opposition remains virtually unchanged since 2004.
I think your position that the spike in opposition is only momentary is still on shaky ground. That short-term spike lead to over a dozen state constitutional amendments banning gay marriage being passed–every state that proposed one passed one. Let’s see what the poll numbers are for whether they should be overturned. Let’s what happens with Proposition 8 in California–that most liberal state in the union has a little time to absorb legalized gay marriage. And do not dismiss the either stablility of the opposiion among Republicans and white Evangelical Protestants between 2004 and 2008 or the possibility that methods other than forcing gay marriage down their throats through the courts might win their support.
Not that it matters, religious institutions are on the decline in North America and Europe.
I’m talking about the United States, where new religious revivals are constantly emerging and we are having increased immigration from groups with strong religious traditions that are firmly anti-gay. Where the evangelical right has become very stable and very well-respected. I don’t hold the view that they can really control the country, but I do think a very large number of people take their righteousness seriously.
posted by Bobby on
“I’m talking about the United States, where new religious revivals are constantly emerging and we are having increased immigration from groups with strong religious traditions that are firmly anti-gay.”
—And who supports massive immigration? The left. And who wants us to embrace multiculturalism and not demand that immigrants become more like us? The left.