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.