Sunday, May 18, 2008

The Courant, Court Ordered Legislation, Gay Rights And Polygamy

In connection with gay rights, the Hartford Courant is untroubled by the fact that a California court has vetoed the vox populi.

Rolling over the legislature, California’s state Supreme Court has decided that the right to marriage is a constitutional right.

The Courant heartily agrees.

The paper cites a dissent by Justice Marvin R. Baxter, who argued that the justices had “substituted ‘judicial fiat’ for democratic change.”

No problem, the Courant argues: “…that's what courts do when people's rights are long denied. In the celebrated Brown v. Board of Education case in 1954, the U.S. Supreme Court — headed by Californian Earl Warren — jump-started school integration in parts of the country that had been slumbering since the Civil War.

“The majority of justices found that marriage is a constitutional right and that the state had no compelling interest in denying that right to same-sex couples. ‘In contrast to earlier times,’ wrote Chief Justice Ronald M. George in the majority opinion, ‘our state now recognizes that an individual's capacity to establish a loving and long-term committed relationship with another person and responsibly to care for and raise children does not depend upon the individual's sexual orientation.’”

By some strange judicial calculus, the court has determined that because California has through statute provided additional legal rights for gays in “civil union” relationships, these provisions, add up to a constitutional right, even though other statutory regulations create a bar to marriage for gays. Apparently some statutory regulations are more “constitutional” than others.

The paper hopes for a similar ruling here in Connecticut and mentions that “California's decision does not require clergy to perform same-sex marriages, nor does it invalidate the state ban on polygamy.”

To which one is tempted to retort – why not?

If gay marriage is a constitutional right, why should churches be permitted to violate the constitution in their unconstitutional religious practices. Or, to put a finer point on the question: Why shouldn’t the governing authority force religious institutions to align their civil practices, other courts having determined that marriage is a civil right, with the constitution?

As for polygamy, there are no laws in Connecticut prohibiting what the Courant in a previous story called polyamory, polygamous relationships outside of marriage.

If marriage is a constitutional right, why should those perfectly legal relationships not be brought under the court ordered law? Are not polygamous relationships in other cultures "long term" and "loving," and have not polygamists here in the United States been unjustly discriminated against?

If love makes a marriage, why cannot love make a poligamous marriage?

And finally, what is the point in having legislative debates on such questions if legislators are not permitted by the courts to decide such issues as the courts themselves seem ill prepared to decide?

A question not considered by the courts is this one: In putative gay marriage relationships, how does the state test for fraud? But that question cannot be considered until the courts have established "by judicial fiat" a constitutional "right" to marriage for virtually anyone who fraudulently claims to be gay in order to obtain the rights bestowed by the courts on genuine gay marriage partners.
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