Friday, October 10, 2008

The Supremes on Homosexual and Lesbian Marriage

Connecticut’s Supreme Court has decided, by judicial fiat, to ignore for purposes of law any differences between heterosexual and homosexual marriage. The court’s decision, which can be reversed only through a constitutional amendment, moves the state behind a bunker defended by only two other state supreme courts: Massachusetts and California.

As always, the dissenting opinions were the more interesting

Justice Peter T. Zarella denied there was a fundamental right to same-sex marriage and asserted the primacy of the legislature in deciding such issues. “The ancient definition of marriage as the union of one man and one woman has its basis in biology, not bigotry,” he wrote. “If the state no longer has an interest in the regulation of procreation, then that is a decision for the legislature or the people of the state and not this court.”

The majority opinion, written by Judge Richard Palmer, is little more than juridical piddle, social engineering parading as judicial reasoning.

When the rhetorical fat is boiled out of Palmer’s decision, the majority decision will be found to rest upon the following hilarious judicial principle: justice requires judges to bend to powerful lobbies once the desires of those lobbies have been ratified by socially conscious judges.

Palmer’s decision is not subject to appeal. State Attorney General Richard Blumenthal, who once thought that Connecticut’s statutory law would serve as a breakwater against attempts such as those made in Massachusetts to subvert by judicial fiat the positive law of the states, now tells us, a little belatedly, that what the Connecticut Supreme Court has decided cannot be undone by the laws of God and man.

And no one need ask Blumenthal whether he personally would support the reversal of such judicial arrogance through a constitutional amendment, because the attorney general, concerned with maintaining himself in power and an ardent supporter of the present order of things, has already told us he would oppose the convening of a constitutional convention, an option offered to Connecticut citizens once every twenty years. The option will be on the ballot this November.

Put into the language of advertising and political campaigning, Palmer’s written decision amounts to little more than a revocation of one of the guiding principles of law: that justice requires unequal things to be treated unequally. There is no equivalence between homosexual and heterosexual marriage, and the decision reached by the court will make it nearly impossible logically to object to the sanctioning of other kinds of marriages that may be objectionable even to the fine sensibilities of the chairmen of the legislative committees that oversee laws relating to the courts, Rep. Michael Lawlor and state Sen. Andrew McDonald, both of whom are gay.

Chairman of the legislature's Judiciary Committee Lawlor believes that the legislature will be quickly brought to heel by the Supreme Court’s decision. “It's important," he said, “that both the legislature and the court weigh in. The court is saying that it's a constitutional requirement that marriage should be equally available to gays and straights and the legislature should weigh in saying whether or not it's constitutionally required, it's the right thing to do.”

In his position as Judiciary Chairman, Lawlor will see to it that right, as he understands it, is done.

Having decided to treat male/male and female/female marriages as being equal to heterosexual marriages, and having cut down the laws that obstruct the social mission of the state supreme court and gay lobbyists in the state, upon what legal principle will any of the state courts rely to deny other clamorous partners the questionable “right” to socially unacceptable arrangements? Polygamous marriages are certainly acceptable among Muslims, and they would seem to be sanctioned by a rigorous application of that clause in the First Amendment that prohibits the state from prohibiting the free exercise of religion. If Connecticut’s Supreme Court should choose to object to such arrangements, what principle will the court advance to prevent polygamy, especially since the practice is, and has been for centuries, socially acceptable among religious Muslims?

The quasi-legal principle upon which Palmer rested his reasoning -- that gay marriage is becoming more socially acceptable -- may be true among a handful of jurists in three states. The people in California, Massachusetts and now Connecticut have not instructed their legislators, either directly or through the ballot box, to write laws permitting homosexual and lesbian marriages, evidence, if any were necessary, of the justice of Barry Goldwater’s quip that if you lop off California and New England, you’ll have a pretty good country.
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