1. Civil Unions versus Marriage
First off, like California, Connecticut had a separate non-marital legal word for same-sex couples that granted them all of the state rights and benefits of marriage. Same-sex couples just couldn't call their unions marriage. Because of this legal set-up in which same-sex couples could get "civil union-ed" but not than married, the state had argued that same-sex couples did not actually suffer harm. That's a pretty common argument, actually, among "marriage defenders." They don't understand what all the fuss is about since same-sex couples can at least get all of the statewide benefits of marriage.
It's always seemed extremely odd to me that some "marriage defenders" will grant us all the rights of marriage as long as we don't call our relationships marriage. If you're willing to concede that same-sex relationships deserve the exact same rights as opposite-sex relationships, you should be willing to concede that the relationships should be called the same thing. Because, you know, they are the same thing since they deserve the same rights and all.
Effectively, as the Court articulates, insisting that same-sex couples refer to their legal unions as something other than marriage sends a clear message to gay men and lesbians that they are that fabulous type of inferior citizen of the second-class type. The Court says:
"Especially in light of the long and undisputed history of invidious discrimination that gay persons have suffered... we cannot discount the plaintiff's assertion that the legislature, in establishing a statutory scheme consigning same sex couples to civil unions, has relegated them to an inferior status, in essence, declaring them to be unworthy of marriage."
This is true, of course. Interestingly, I think many "marriage defenders" would actually agree with part of that statement. In their eyes, gays and lesbians are not worthy of marriage. Many of them believe that because of how speshul it is that some heterosexuals can procreate together, same-sex relationships are less than, not as important, and not as significant as the relationships that opposite-sex couples have. That's sort of the point of creating this separate legal animal called a civil union. In the "marriage defender's" eyes, marriage is reserved for those who procreate together. Civil unions are for non-breeders. Er, civil unions are for gay and lesbian non-breeders, that is. Heterosexuals who are unable to procreate can still get married. Because... umm... yeah. Because.
Essentially, the "marriage defenders" who will actually concede that same-sex couples deserve rights are saying that even though we deserve equal rights, society has to make sure everyone knows that marriage is for (heterosexual) breeders (and heterosexual non-breeders) otherwise people will get really confused, start believing that marriage is about love rather than "responsible procreation," and thus they will start having children out of wedlock and getting divorced and that would be really bad for society. Marriage is a very special and sacred institution in our society, you see.
In fact, the Court here acknowledges that marriage is quite exalted in America. No one would deny that, right? Yet, that exaltation of marriage necessarily makes other relationships, like "civil unions" and "domestic partnerships" inferior to marriage. And that, my friends, is precisely what our legal system takes issue with. Placing two separate labels on what is the same type of relationship doesn't jive with equal protection guarantees.
While many "marriage defenders" undoubtedly do believe that opposite-sex relationships are superior, what these folks fail to understand is that our legal system doesn't allow for such distinctions if there is no good reason for these distinctions. Equal protection under Connecticut's constitution requires "all persons similarly situated" to "be treated alike." To put it generally, the Court simply agreed that heterosexual couples and same-sex couples are too much alike to justify legally calling their relationships by different names. The state failed to put forth strong enough reasons for treating these couples differently. After all, as the Court stated as part of its heightened scrutiny analysis, the public policy of Connecticut is such that "sexual orientation bears no relation to an individual's ability to raise children," it bears no relation to an individual's capacity "to enter into relationships analogous to marriage," and bears no relation to an individual's "ability otherwise to participate fully in every important economic and social institution that the government regulates." Check. Mate.
2. The State's Bad Arguments
Another interesting aspect of the case were the astoundingly poor arguments that the state offered against marriage equality. First, it offered that trusty old appeal to history "argument" that goes two people of the same-sex cannot get married because same-sex couples have never been able to marry. Erp. And then, the state argued that all people, gay and straight, already had the right to marry. They just had to marry a person of the opposite sex. Of course. A-der.
When people utter these arguments, it shows how they are completely missing the point of the debate. Precisely, we are arguing about whether gay men and lesbians should be allowed to marry someone of the same-sex even if marriage has historically been between a man and a woman. Answering that question by merely saying same-sex couples can't get married because same-sex couples have never been allowed to marry doesn't get to the heart of the debate. All that historical information tells us, as the Court rightly notes, is that the discrimination has existed for a long time. And, suggesting that gays and lesbians already have the right to marry (people of the opposite sex) and, therefore, that they do not require the right to marry people of the same sex evidences a profound lack of understanding of what it is to be gay.
I applaud the court for articulating cogent arguments in favor of marriage equality Maybe I've just been reading too many asinine "marriage defense" arguments lately but I've found it really refreshing to read smart people in positions of prominence and authority deconstruct profoundly bad and illogical "marriage defense" arguments. Thank gawd members of our judiciary, unlike the pro-Prop 8 mobs, are able to transcend anti-gay propaganda and sexual prejudice.
Unfortunately, as I will blog about tomorrow, this decision has already cued another ignorant round of Activist Judge (tm) bleating from those who misunderstand the role of the judiciary in our democracy. In fact, I predict that the Yes-on-Prop-8ers will use this victory as more "evidence" that elite activist judges are ruining everything by overturning The Will of the People (tm).
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