Some friendly thoughts on the Connecticut same-sex marriage case
Posted on October 12, 2008
There is a thread on the CourtZero message board about the Kerrigan v. Commissioner of Public Health case creating same-sex marriage in the State of Connecticut. Case law is confusing to most people, so I jotted a few thoughts that I reproduce here:
Throughout most of American jurisprudential history, homosexuality has been considered a behavior, and not an intrinsic trait, like race or sex. That, obviously, is changing. Therefore, throughout most of American case law, homosexuality has not been considered what we call a “protected class”. When one is a member of a protected class (traditionally women and minorities) laws restricting the rights of those in the class are subject to strict scrutiny. If you allow me to over simplify, that means that the government has to put forth a very compelling reason for whatever the restriction would be.
Here’s an example. Let’s say there is a law that says automobiles can’t be used by Americans of Irish lineage after 10 p.m. on Fridays, the reason being that the law reduces the number of car accidents caused by drunk driving. Before you freak out on me, you are correct that the law is unconstitutional under the Equal Protection Clause, but I am intentionally using a simplistic example. Let’s pretend that the law is otherwise constitutional. Since Irish-Americans are not a protected class, such a law would stand up to scrutiny if the government could show a plausible public safety reason for it. On the other hand, the same law as applied to African-Americans or women would fall under strict scrutiny and should not stand up (yes, yes, I remember the flaw in my example — forget about equal protection for a moment). So there is the difference between a protected class (people with intrinsic traits they can’t do anything about) and a group of people who are not in a protected class, like Irish-Americans who choose to drink too much, or men who decide to have sex with other men.
In 1986, the Supreme Court gave us Bowers v. Hardwick. It was about the criminal prosecution of same-sex sodomy. That aside, the Supremes decided not only that the anti-sodomy statute was constitutional, but made it clear that homosexuality does not create a protected class or require strict scrutiny.
That’s what I learned in law school. That’s supposed to be binding precedent, you know, like that little reproductive rights case back in 1973 that people get so excited about.
Bowers is ignored now, however. In 2003, in Lawrence v. Texas, the Supremes decided that the 1986 holding in Bowers was no longer the law of the land in one respect, that criminal anti-sodomy laws cannot be enforced. There is a fascinating backstory to the Lawrence case, by the way, and there is compelling evidence that the whole thing was a setup (that is, a couple of gay men orchestrated a situation in which they gave the police no choice but to arrest them on purpose in order to set up the court case). Now the government could no longer prosecute consensual sodomy on basic, if not vague, liberty and privacy grounds. Not many people had a cow about that, as it did not have sweeping societal implications outside of people’s own bedrooms.
It is important to note that the phrase “protected class” does not appear in the Lawrence decision. The Lawrence decision does not grant that status to gays and lesbians. Instead, what the Massachusetts court did in Goodrich and what the Connecticut court just did in the Kerrigan case was to apply an equal protection standard to homosexuality. In my opinion these opinions have been issued without competent and substantial evidence presented at the trial level as to the difference between intrinsic traits and voluntary behavior. I don’t mean to have that argument here in this post, I just note that the respective courts make certain assumptions about homosexuality being intrinsic without any real evidence of that, and go with it. Either way, Goodrich and Kerrigan have created a de facto protected class, which is a big victory for gays and lesbians. I believe that reaching that conclusion is not only incorrect, but also in conflict with the US Supreme Court in Bowers and Lawrence. For now. SCOTUS, to my knowledge, has not directly taken up the issue of whether or not homosexuals are a protected class since 1986.
The trend, it seems, is to ignore what Bowers and Lawrence really mean (regarding the non-criminalization of certain behavior seen to be private) and to shoehorn the Lawrence case into a larger equal protection context (requiring society to adjust its standards on what marriage is and has always been), even to the extent of trumping state constitutional amendments that define marriage as between one man and one woman.
By the way, the Connecticut court is the same one that gave us Kelo v. New London (expanding eminent domain). Remember that?
» Filed Under ACLU, Activist Judges, Communism, Domestic Enemies, Homosexual Agenda, Judicial Impeachment, Moral Relativism, National Security, News, Secular Humanism, Socialism, Stupidity, U.S. Constitution
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7 Responses to “Some friendly thoughts on the Connecticut same-sex marriage case”
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That’s about the most convoluted argument I’ve ever heard to try and explain away how giving other people the same rights you already have is making them a “protected class.” I mean, marriage! Just like straight people! Next thing you know they’ll want guaranteed places first in line at the movies.
Who are you kidding? The real problem isn’t that gay people are demanding “special” protections or rights or whatever the buzzword is today; the problem is someone finally said that -you- don’t get to be a “special, protected” class anymore, and it BURNS, PRECIOUS.
You want to make the argument that you DESERVE to be “specially” protected as a straight person who is wedded to one very narrow and fairly recent form of relationship, go right ahead; but don’t try to make that argument and simultaneously claim that it’s everyone -else- who’s asking for special treatment; they aren’t. Just you.
Oh, sorry: and previously, the right to not be randomly attacked just for existing and/or to have sex without the risk of getting arrested for it. So demanding, those gayers.
And no, actually, there are a number of people who do not believe that civil rights are dependent on whether or not one can “help” being different (i.e. the “choice”). It’s a crap argument that people have fallen back on only because for some reason it seems occasionally like it actually lands when nothing else does. Listen, it’s really none of anyone’s business why Joe Schmo is “that way” or why he decides to marry John instead of Jill. Apparently the “nature” argument was necessary to get it through some peoples’ heads that no, actually, it isn’t just a “phase” that people engage in just to spite their law-abiding straight neighbors, it’s not something one gets up in the morning and decides on a whim.
The argument that you’re sort of tapdancing around here is, rather, that there is somehow something inherently -harmful- in Joe marrying John that directly affects Bill and Agnes down the block. What you’re trying to argue here is based on the notion that Joe and John -need- to prove that goshes they -would- marry June and Gladys, respectively, if they could, but they can’t. We all know that’s crap; they could be celibate, just like the Catholic Church advocates.
They could be, but they shouldn’t have to be. Any more than you. Because the case that it actually -does- bother Bill and Agnes in any way other than a vague sense of “I don’t like it, and it shouldn’t be happening” still hasn’t been made.
It’s really not that complicated.
I may be wrong about this, but I thought that Lawrence v. Texas expressly overturned Bowers v. Hardwick. I also thought that the Supreme Court had the authority to decide that it was wrong in the past and to correct its mistakes. I haven’t read Lawrence v. Texas in detail, so I’m not familiar to what extent it overrules Bowers v. Hardwick, but I think at the very least it’s pretty suspect to cite it as binding authority.
May I ask you if you believe in global warming? There is more evidence that homosexuality is an unchangeable, unchosen condition that shows up in people at random than there is that global warming is man-made. By your logic, all the government’s actions on global warming are premature.
Bowers is not valid precedent anymore. However, this argument is weak and pretends that the SCoTUS has absolute power over state supreme courts. This is obviously errant and shows that you have little knowledge of the law.
In case I wasn’t clear, I am questioning the “law school” degree of original poster.
Sky Cat — What argument? I didn’t make one. I did a reader’s digest explanation of what’s going on.
In theory, SCOTUS doesn’t have “absolute power over state supreme courts”, though recent history shows us that SCOTUS has absolute power over 50 states and the other two branches of government, but that is another discussion entirely. In reality, when a state supreme court rules on the basis of the federal equal protection clause, SCOTUS would absolutely have a say in that, although that hasn’t happened to date on this specific issue.
And in case I wasn’t clear: FSU College of Law 1995. I know it isn’t Yale, but the football team is much better.