POLITICS OCTOBER 13, 2008
Over the weekend, I read the Connecticut Supreme Court’s gay marriage decision. It’s actually a rather moving document: a cogent defense of gay rights that efficiently demolishes the chief arguments against marriage equality, while offering what struck me as a reasonable defense of judicial intervention in the matter. If you have a free hour, I highly recommend reading it.
A few things popped out at me as I read the ruling:
First, the decision lays bare the absurd illogic at the heart of civil unions. In order to argue that Connecticut’s civil union law did not discriminate against gays and lesbians, lawyers for the defendants were forced to contend that civil unions are basically the same as marriage. The majority opinion summarized their argument this way: “[T]hey asserted that the plaintiffs had failed to demonstrate that they have suffered any harm as a result of the statutory bar against same sex marriage because, under the civil union law, gay persons are entitled to all of the rights that married couples enjoy.” Logic like this puts gay marriage opponents in the odd position of devaluing the institution of marriage. Marriage, they end up arguing, is nothing so special that it can’t be replicated by a parallel institution--in this case, civil unions. Yet the entire point of creating civil unions is to preserve what is allegedly special about the institution of marriage. There is a pretty blatant contradiction here. Either there is something special about the label “marriage” or there isn’t.
The majority in the Connecticut case rejected the claim that marriage can simply be replicated by a parallel institution. “In view of the exalted status of marriage in our society,” the justices wrote, “it is hardly surprising that civil unions are perceived to be inferior to marriage. ... Although marriage and civil unions do embody the same legal rights under our law, they are by no means ‘equal.’ As we have explained, the former is an institution of transcendent historical, cultural and social significance, whereas the latter most surely is not.” Doesn’t it say something about the intellectual bankruptcy of the anti-gay-marriage movement that its lawyers find themselves on the other side of these statements--that they are basically forced to deny the distinctive nature of marriage in order to hold their own in court?
Second, the justices made a pretty lengthy foray into the question of whether gay marriage ought to be adjudicated by the courts or left to the legislative process--and, in doing so, they offered an extended historical analogy that contains a worthwhile political lesson for liberals.
How they get to that analogy requires some explaining: Laws that discriminate against “suspect classes”--such as racial minorities--or “quasi-suspect classes” are subject to heightened judicial scrutiny, meaning that courts demand higher standards of justification for the laws and are more likely to strike them down. In order to determine which level of judicial scrutiny to apply to Connecticut’s civil unions law, the justices first had to determine whether gays qualify as a quasi-suspect class. They used four tests to reach their decision. The first three were relatively easy to answer: One, have gays faced a history of discrimination? (Clearly yes.) Two, does sexual orientation affect “a person’s ability to participate in or contribute to society”? (Obviously not.) And, three, is sexual orientation an immutable trait? (On this question, the court hedged a bit, declining to say that sexuality is completely fixed. But it did state that, even if people could change their sexuality, it would be a severe injustice for the government to demand that they do so. In other words, on the immutability question, the court basically said: Close enough.)
But the most interesting test--and the one that the court expended far more words on than the others--was the fourth: Is the group in question “politically powerless”? That is, do courts need to provide heightened scrutiny in part because “there is a risk that [the] discrimination will not be rectified, sooner rather than later, merely by resort to the democratic process”? Essentially, the Connecticut justices were asking whether they could be reasonably sure that gays and lesbians, working through the state legislature, would win full marriage rights in the near future. And the court’s answer was, more or less, no. Part of its rationale for this conclusion was rooted in the specifics of Connecticut politics, and part was rooted in a general discussion of the political obstacles facing gays. (In a satisfying piece of legal jujitsu, the justices used an anti-gay-marriage amicus brief submitted by a religious group as a data point to show that the forces arrayed against gay rights remain formidable--and that gays therefore lack substantial political power and are thus entitled to quasi-suspect status. Good work, Becket Fund for Religious Liberty.) But the justices also made a substantial chunk of their argument on this point by way of an extended historical analogy to the women’s rights movement in the 1970s. In 1973, when the Supreme Court ruled in a case called Frontiero v. Richardson that women should be treated as a suspect class, the Equal Rights Amendment--which would have granted women suspect-class status through more democratic means--appeared to be on the brink of ratification. Doesn’t that mean the Supreme Court was wrong to act--that it was settling a matter judicially that might have been settled more democratically? Here is what the Connecticut justices write:
We also note that, despite the likelihood of ratification when Frontiero was decided in 1973, the equal rights amendment ultimately did not muster enough support among the states, and it therefore never was adopted. ... Thus, one of the lessons to be learned from Frontiero and its treatment of the equal rights amendment--an initiative that seemed far more likely to succeed nationally than any current effort to enact a gay marriage law in this state--is that, because support for particular legislation may ebb or flow at any time, the adjudication of the rights of a disfavored minority cannot depend solely on such an eventuality.
The court’s reasoning here contains what I think is an important cautionary note for liberals. It’s tempting to assume that, because history is headed in our direction on gay marriage, there is no need for the courts to get involved. But there’s a difference between knowing that history is headed in your direction and knowing how quickly history is headed in your direction. In the case of women’s rights, history turned out to be moving a bit slower in the direction of full equality than it appeared to be moving during the heady days of 1973. In the case of Connecticut and gay marriage, it’s conceivable that it might have taken the legislature just a year to enact marriage equality. But it’s also entirely conceivable that it could have taken decades. Which is why I’m unconvinced when gay rights advocates (like John Cloud this week in Time) argue that the same-sex-marriage battle needs to be fought in legislatures not courts. The Connecticut Supreme Court makes a good case that it needs to be fought in both.
Of course, there is always the risk of backlash when courts act aggressively. And the Connecticut decision obviously comes in the shadow of what is taking place in California, where the latest polls suggest that voters are turning against gay marriage, and may override last spring’s Supreme Court decision legalizing it when they cast ballots on November 4. If this happens, many will blame the court for provoking a backlash. But, if the court is to blame, why did the polls show support for gay marriage in the months following the decision--and only now show voters trending against it? A recent advertising blitz by anti-gay forces--not a months-old decision by the California Supreme Court--probably accounts for the swing. In any event, there are still three weeks to go; gay marriage is not dead in California yet.
Final observation: With the election and the financial meltdown dominating headlines, the Connecticut ruling didn’t really get that much attention over the weekend--certainly nothing like the attention showered on the Massachusetts and California decisions when they were handed down. In fact, the entire episode felt oddly unremarkable. Maybe that is its own form of progress.
Richard Just is managing editor of The New Republic.