Wednesday, April 13, 2005

Blumenthal and the Ambiguities

Gov. Jodi Rell pledged to sign the civil union bill now snaking its way through the legislature only on condition that Attorney General Richard Blumenthal, the White Knight of Connecticut politics, assured her that the measure would not allow gay marriage.

Here, as always, language was important. Even though nothing in the bill under consideration “allowed gay marriage,” the bill would not be a barrier to gay marriage – unless there were a provision in the measure that reserved marriage for couples of the opposite sex.

The senate has resisted such language. Many states have adopted constitutional Defense of Marriage Acts (DOMAs) to prevent courts from overturning traditional social conventions such as male, female marriage. States without DOMAs are especially vulnerable to court ordered legislation legalizing same sex marriage.

The Attorney General position in Connecticut historically devolved from the King’s Attorney in colonial times. The attorney general is historically and constitutionally mandated to provide legal advice and assistance to the governor and other administrative officials. Only recently – first under the administration of former attorney general Joseph Lieberman and now under Blumenthal – has the office overflowed its historic and constitutional banks.

Under instructions from the governor to provide advice that was “unambiguous,” Blumenthal could have found himself between a rock and a hard place, not altogether an uncomfortable spot for a well greased politician.

"If the attorney general in any way equivocates, is unclear or indicates that the bill would allow gay marriage,” Rell had said, “then I will ask the House to pass an amendment specifically prohibiting gay marriage and defining marriage as solely between one man and one woman. Such an amendment will be required in order for me to sign the bill."

The governor here was asking Blumenthal, a possible future candidate for governor on the Democrat ticket, to put his fingerprints on the legislation. At the same time, she had unambiguously pledged to oppose same sex marriage.

Blumenthal, as usual, rose to the occasion. "This bill," he responded, “clearly in no way expands the definition of marriage to same-sex couples. By its express terms as well as its legislative history and intent, the statute would maintain the current definition of marriage, which applies only to opposite-sex couples."

If the civil union bill passes both houses of the legislature and is signed by the governor upon assurance from Blumenthal that nothing in the bill “allows gay marriage” -- which is not exactly what Blumenthal affirmed -- it is likely that proponents of same sex marriage will first try to put before the legislature yet another bill establishing same sex marriages. That bill almost certainly will not pass in the legislature.

The proponents of gay marriage already are seeking redress from courts in Connecticut. The same lawyers who persuaded the Massachusetts Supreme Court that gays had constitutional right to same-sex marriage, are suing Connecticut (Kerrigan v. State of Connecticut) on the grounds that current statutes, regulations and common law rules violate Article First, §§ 8 and 10 of the Connecticut Constitution.

In both Massachusetts and Canada, same sex marriage proponents, frustrated by legislative opposition, successfully sought court decisions to secure their goals. The courts, in their decisions, simply voided thousands of years of statutory law. Statutes are to courts bent on social change what straw is to fire. Courts in Connecticut are likely to follow suit.

It is at this point that civil union legislation and the opinion requested from Blumenthal become relevant.

In future court proceedings in Connecticut, will the passage of a civil union bill be a help or a hindrance for opponents of gay marriage? In the absence of a constitutional provision defining marriage as a contract between a man and a woman, will courts be more or less likely to rule in favor of the proponents of gay marriage?

These questions already have been answered by thirty nine states that have adopted DOMA legislation. Clearly, the legislation is considered a bar to social disruptions caused by questionable court decisions. Though Blumenthal has never been shy in offering opinions, questions such as these may be beyond his purview as attorney general and are not touched upon in his advisory to Rell.

But these questions are pertinent to candidates for governor and legislative offices.

Blumenthal recently gave a wink and a nod to George Jepsen, who stepped down as Democratic state chairman to explore running for attorney general in 2006, a gesture interpreted by some as an indication that Blumenthal may throw his hat into the gubernatorial ring.

If Blumenthal leaves his politically safe redoubt to run as governor, he will have to answer unambiguously many of the questions he has sidestepped in his role as attorney general.

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