As you have no doubt read or heard, on Oct. 10 the Connecticut Supreme Court struck down the state's civil union laws and ruled 4-3 that denying the right of civil marriage to same-sex couples violated the equal protection provision of the state constitution. The ruling makes Connecticut the third state to permit same-sex marriage, joining California and Massachusetts.
In his majority decision Justice Richard Palmer wrote, "To decide otherwise would require us to apply one set of constitutional principles to gay persons and another to all others."
The decision was important for its specific denial that civil unions are an adequate substitute for marriage. Several states including Hawaii, Washington, Oregon, New Hampshire, and Maine have passed civil union or domestic partner statutes, and the ruling gives ammunition to gays in those states who might file suit to obtain full marriage status.
"Marriage and civil unions ... are by no means equal," Palmer wrote. Marriage "is an institution of transcendent historical, cultural and social significance, whereas [civil unions] are not." Further on he wrote, "There is no doubt that civil unions enjoy a lesser status in our society than marriage." In so writing, Palmer took a familiar Religious Right claim about the importance of denying gays the right to marry and turned it in a gay-supportive direction.
As jubilant as Connecticut gays were, many gays in other parts of the country were pained by the decision, fearing that it would add fuel to the conservative effort in California, Arizona and Florida to pass constitutional amendments prohibiting same-sex marriage. Sadly, they are probably right. At least, it was impolitic to issue the decision just before the election.
But, at the same time, the decision is a gratifying affirmation of the legitimacy of our legal and moral arguments for marriage equality. Future state courts ruling on the issue will no doubt examine earlier court decisions carefully, so the more decisions there are on our side, and the better the arguments they offer, the more likely future courts will also rule in our favor. Certainly a negative decision would have a harmful impact.
In addition, the more gays and lesbians who marry and are able to present themselves to their friends, relatives, co-workers and fellow church members as married couples, the more that will get people used to the idea of same-sex marriage and move public opinion in a gay-supportive direction.
And finally, we have to believe that in the long run good arguments, whether they are advanced by gay organizations or trickle down from the nation's courts, will eventually prevail over poor arguments in the court of public opinion. Democracy is founded on this belief. And at some point in the future it will become possible to repeal those constitutional gay marriage bans.
Gratifyingly, the arguments of the dissenters against gay marriage were largely poor and seem drawn from the playbook of the Religious Right. One dissenter argued that there was no evidence that civil unions were inferior to marriage. But an earlier study in New Jersey found that many people did not view civil unions as conferring the same status as marriage and documented cases in which people in civil unions were not treated as legal couples in public accommodations such as hospitals.
Another dissenting argument was that gays do not qualify as a "suspect class" that has been traditionally disadvantaged. On the contrary, the dissent argued, gays have "unique and extraordinary" political power that does not justify such scrutiny.
I confess that I have never understood this argument. Why the actual or imagined political power of any group, much less one that is widely believed to be only 4 or 5 percent of the population, should justify denying its members basic constitutional rights is far from clear.
As for gays' supposed political power, is that why sodomy laws existed until very recently? Or why gays were long arrested and jailed for engaging in sex? Or why only 0.5 percent of House of Representatives members are openly gay and why there are no openly gay Senators? Or why open gays are barred from the U.S. military? Or why gays are unable to pass a national gay civil rights law? Or why there is no gay-inclusive national hate crimes law?
The final anti-gay marriage argument is the hoary one that marriage deals with procreation. But of course, once the state allows infertile couples to marry, as all of them do, it has effectively denied the legitimacy of the "procreation" argument. In addition, eight years ago Connecticut allowed gays to adopt children, further severing the connection between parenting and child rearing. The question to be asked is, Are the children of gay couples better off if their parents are married, or are they not? The answer seems obvious.