More judicial tyranny from Obama-style judges: CT courts overturn state law to recognize gay marriage

My latest guest-post at HughHewitt.com criticizes activist judges on the Connecticut Supreme Court who've today imposed their own views over the will of the majority of their state's voters in the guise of interpreting their state constitution. I'm not against same-sex marriage, but I'm against imposing it on an unwilling majority of the public by judicial decree. And I'm very strongly against dishonest political candidates who say they oppose gay marriage, but will appoint activist judges who will issue such decrees.

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[Copied here for archival purposes on November 5, 2008, from the post linked above at HughHewitt.com.]

(Guest Post by Bill Dyer a/k/a Beldar)

In Kerrigan v. Commissioner of Public Health, over the protests of three members of the court (as expressed in three dissenting opinions), a four-member majority of the Connecticut Supreme Court has overturned as "unconstitutional" a statutory system whose long-standing components were passed by Connecticut's lawmakers and signed into law by its governors over many years, and has instead decreed that henceforth in Connecticut, "same sex couples cannot be denied the freedom to marry." Here's the majority's own summary of its reasoning:

We conclude that, in light of the history of pernicious discrimination faced by gay men and lesbians, and because the institution of marriage carries with it a status and significance that the newly created classification of civil unions does not embody, the segregation of heterosexual and homosexual couples into separate institutions constitutes a cognizable harm. We also conclude that (1) our state scheme discriminates on the basis of sexual orientation, (2) for the same reasons that classifications predicated on gender are considered quasi-suspect for purposes of the equal protection provisions of the United States constitution, sexual orientation constitutes a quasi-suspect classification for purposes of the equal protection provisions of the state constitution, and, therefore, our statutes discriminating against gay persons are subject to heightened or intermediate judicial scrutiny, and (3) the state has failed to provide sufficient justification for excluding same sex couples from the institution of marriage.

Because the court relied upon its interpretation of the equal protection provision in the Connecticut state constitution rather than upon the comparable provision in the Fourteenth Amendment to the United States Constitution, there is effectively no chance that the U.S. Supreme Court will review today's decision. That decision is now the law of Connecticut, subject only to being overturned by the Connecticut Supreme Court itself or by an amendment to the state constitution.

The judges who made up the majority in this ruling are precisely the kinds of judges whom Barack Obama and Joe Biden want to appoint the the federal bench. That's why Obama and Biden voted against confirmation of both Chief Justice John Roberts and Justice Sam Alito. Instead, they want judges who will make law from the bench — and especially laws on the most controversial subjects (like gay marriage) that couldn't possibly gather a majority vote in Congress and a presidential signature. It's worse than meaningless, but rather a complete fraud, for Obama and Biden to tell voters that they oppose gay marriage when they will appoint judges who will bring about gay marriage by judicial decree.

This decision will alarm and dismay two partially overlapping groups of people: (a) those who believe that recognition of single-sex marriage will ultimately destroy the traditional institution of marriage and foster other bad effects in society, and (b) those who decry unrestrained judicial activism as a tyrannical seizure of political power by rogue judges in a manner that undercuts the legislative and executive branches of government, thereby rendering impotent the political decisions made by democratic majorities.

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Personally, although I understand and respect the views of those in the first group, I count myself only among the membership of the second. I think that government is much to blame for the often-tragic status of the traditional family in today's America, and there is much I would do to change those policies to promote stronger families. Were I a state legislator or governor, I would not cast my voe to deny gay couples the right to marry. But no combination of a state legislature and governor in America has yet agreed with that position.

Rather, the consistent decisions of those branches of state governments — which are regularly and directly elected by majorities of the voting public in their respective states — has been to adhere to the traditional definition of marriage as being between one man and one woman. And although I ultimately find them less persuasive, there are legitimate arguments to be made for that position that are not based on revulsion toward homosexuality or a desire to penalize homosexuals. I therefore would not demonize or seek to de-legitimize those who disagree with me on this issue. And I would continue to try to work toward obtaining majority support for what I believe to be pro-family changes in the law, and to persuade the majority to the view that pro-family isn't necessarily anti-gay.

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But I'm very definitely a member of the second group: As a matter of constitutional law and basic principles of civil government, this is another well-intentioned but awful decision — one that may, ironically, end up frustrating rather than advancing the ultimate goal of its proponents. Using courts to cram this sort of policy down people's throats — without majority support, and in fact in defiance of majority opinion — is a very bad plan.

Those who follow, or much care about, the constitutional law here will quickly note that the Connecticut Supreme Court has played fast and loose with its equal protection clause. In equal protection analysis, the outcome is almost always determined by the framework in which the courts choose to analyze a government classification. If the government is classifying people on the basis of race, for example, long-standing precedent from both federal and state courts typically use a "strict scrutiny" approach, under which the government must offer up a "compelling purpose" to support its decision to treat people differently from one another because of their respective races.

Classifications based on other distinctions, however, traditionally were treated as valid so long as they have a "rational basis" — a vastly easier standard to satisfy. The state discriminates, for example, against the sightless when it requires people who get drivers licenses to pass a vision test. But because sightedness — unlike, for example, race — is not a classification that has traditionally been subjected to "strict scrutiny" analysis under the constitutional precedents interpreting state or federal equal protection guarantees, the state merely need show a rational reason for treating the sightless differently. They meet that requirement by showing that people who can't meet the vision requirements are more dangerous drivers. And as for whether someone with an uncorrected vision of 20/100 is or is not permitted to drive without corrective lenses, that sort of fine calibration of the state's classification system the courts generally leave to a combination of state legislatures and state agencies, upholding their decisions unless they are so genuinely arbitrary as to have no correlation to reality.

In same-sex marriage cases, therefore, the constitutional equal-protection decision often is compelled by the initial question: What kind of scrutiny will the courts apply to the state decision to deny marriage to same-sex couples? If that decision is subject to an ordinary level of scrutiny, then the state may meet the "rational relationship" test merely by asserting its belief, whether correct or not, that traditional marriages promote societal interests like child-rearing — and the courts won't further second-guess that assertion.

The Connecticut Supreme Court today, however, decided that the decision to deny the right to marry to same-sex couples ought to be judged by a an intermediate standard, a "heightened-scrutiny" analysis like that sometimes (but not consistently) used by the U.S. Supreme Court in cases involving gender discrimination. Many law review articles — containing hundreds of case citations and millions of words of argument — have been, and will continue to be, written on whether this is a legitimate approach as a matter of constitutional law.

Ultimately, however, the decision to apply this standard, and the results reached once a court decides to use it, has no greater constitutional legitimacy than the individual judges' own personal views on any given policy question. It boils down to saying, "On really controversial subjects that provoke the greatest passion among the voters, we judges are going to declare ourselves smarter and wiser than the legislature and the executive whom the voters have elected, and our decisions trump all of theirs." And thus is your democratic vote — and those of your representatives in the state and federal legislative and executive branches — cheapened, even eviscerated, by judicial tyrants.

— Beldar