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Friday, April 15, 2005

Still Better to Have Rights...

Earlier this week, I argued that proponents of same-sex marriage would do well to focus on legislation rather than litigation to achieve our goals, even if it meant settling for civil unions rather than marriage.

I always knew that people tend to take my advice, but I never knew how quickly.  Connecticut is now poised to become the first State to legislatively adopt a civil union law.  The Republican governor has announced she would sign the House's bill if the Senate adopts it.

To view the version that was passed, start here, and then read these two amendments that were adopted.

Is it perfect?  Hardly: it does not come with the word "marriage," and it reaffirms that marriage in Connecticut is only between one man and one woman.  However, substantively, it appears that the bill bestows civil unions with all rights and responsibilities associated with marriage.

In my view, in this case, it is better to have rights than to be right.  Of course, there is no reason that advocates of same-sex marriage need to stop at civil unions.  We should continue to advocate full marriage equality and lobby for it.  But right now, let's enjoy the win.

Query: The theocrats have attacked VT and MA court opinions as judicial meddling in political questions.  I wonder how they will attack this one?  Perhaps they will finally admit to the real issue: the culture wars have nothing to do with principles like states' rights or judicial activism.  Rather, it is all about politics, and as soon as those principles are no longer useful, they will cast them aside and find some new reason to criticize legislation supported by the majority.

Posted by Hillel Levin on April 15, 2005 at 12:46 PM in Law and Politics | Permalink


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» Ask and Ye Shall Receive from The Debate Link
The stellar new blog Prawfs Blawg notes the passage in Connecticut of Civil Unions legislation which grants gay couples virtually all the same rights as heterosexual married couples (Balkinization points out the one niggling exception). So, they ask,... [Read More]

Tracked on Apr 15, 2005 4:18:35 PM

» Sanity and Insanity from The Debate Link
Charles Krauthammer has a very interesting column on the judiciary in today's Washington Post (Orin Kerr, among others, with the link). There were loads of points made, some which will anger liberals and others which are clear shots at conservatives.... [Read More]

Tracked on Apr 22, 2005 8:10:11 PM


living in ct, i think the process has been an interesting one. I greatly support full same-sex marriage rights and do believe that this is a step in achieving just that. The group, Family Institute of CT (classified as a "social welfare" group...interesting...) has a few major points - one which is to let the people vote (thus, their big "let the people decide" stickers) on this issue. Haven't they read history?

when the interracial marriage ban was lifted in 1967, polls indicated that 70% of americans disagreed with that decision. Thank God the public does not decide the rights of others. Legally, it is the responsibility of the government and the courts to protect minority groups from discrimination, even when the majority supports that discrimination. also, there is no harm documented to allowing same-sex partners to enter into marriage. we already allow two-parent adoption, but we don't allow those parents to be legally related to each other? now that's just silly.

overall, I am happy to hear that it passed. Much like massachusetts, I think we'll find that our state is not washed away, that couples continue living their lives, families are given added security and that public approval will continue to grow and support same-sex couples.

there's a reason that educated people overwhelmingly support allowing same-sex couples to marry. they don't fall victim to the fear-tactics and distorted "facts" offered up by the other side....

all it took was sitting at the judiciary hearings and listening to the opposition give their testimony to hear the difference...i encourage you to read their statements if you haven't already.

I appreciate your blog!

Posted by: skye | Apr 20, 2005 5:30:48 PM

Conservatives don't care, so long as the legislature decides these issues instead of the courts deciding for people

Following Bush v Gore, I no longer even have to think hard about whether to believe conservatives when they say they're applying "neutral principles" of judicial deference and federalism. When the elected branches don't do the bidding of the right, the right is more than happy to have judges step in and override the actions of Our Democratic Representatives. See, e.g., the whole 10th Amendment Jurisprudence of the past 10 years (including an admission by Scalia in Printz that he's overturning a law under 10th Amendment principles even though the Constitution doesn't literally speak to the point); the whole 11th Amendment Jurisprudence of the past 10 years (in which Kennedy, an opinion joined by Rehnquist/Scalia/Thomas) actually says that the Court "underst[ands] the Eleventh Amendment to stand not so much for what it says, but for the presupposition which it confirms"; the federal jurisdiction over the Terri Schiavo case; I could go on.

When less entrenched in power, maybe conservatives could fool some by hiding behind supposedly neutral principles to attack "the political seduction of the law" (Bork); now in power, they've been seduced by the same mistress.

Apologies for this long aside of a tirade, but nobody should let that conservative claptrap go unanswered. They're against gay marriage because they don't like gay marriage, not because "the wrong governmental body" enacted it. Do you think there's so much as one conservative politician who's against gay marriage now but would be in favor of it, if only a different branch of government enacted it?

As to the "theocrats" moniker: listen to some politicians' speeches, where every policy comes from what God tells them to do (apparently God now chooses obscure state assemblymen as His Prophets); look at the fervent support for school prayer; look at the religious basis for virtually every policy suported by the religious right. Yes, we do not have a theocracy now. We would if certain elements of the country had the power they seek.

Posted by: Scott Moss | Apr 16, 2005 11:05:09 AM

I am interested in seeing whether readers think civil-union statutes represent any stable resolution to this debate, in any state or in the country. My sense is not, for two reasons:
First, I think it likely that courts will strike down as irrational a classification that provides gay couples with all the benefits of marriage without calling it "marriage." The only rationale for such a distinction is animus, thereby presenting a seemingly easy case under Romer. Thus, a civil-union statute will become a gay marriage statute by way of judicial constitutional interpretation.
Second, few gay-rights advocates are satisfied with civil unions, and the vast majority (it is my sense) see laws like Connecticut's proposed one as a first step toward full equality. Thus, we will see at least an organized enthusiastic lobbying effort for the foreseeable future.
Do readers (and moderators) think I am right, particularly as to my first argument? If so, would civil unions be receiving as much support as they are if the public understood that the end result of passing a civil-union law would be to legalize same-sex marriage? What implications arise if public support is indeed not reflective of likely future court action?

Posted by: Michael Dimino | Apr 16, 2005 12:41:02 AM

I said that conservative across the country will not care, I didn't say no one in CT won't oppose the bill! How is asking the CT house and governor not to pass a bill (by the way - nothing has passed until both houses pass it and the governor signs it - bicameralism and presentment) that they allege doesn't have public support anything other than political advocacy? What is the alternative: conservatives in CT shouldn't be allowed to lobby or vote?

Let me be more specific: neither U.S. House and Senate members, nor the White House, nor conservative papers, magazines, or opinion writers will give a damn IF CT ACTUALLY PASSESS A CIVIL UNION LAW.

Supporting or opposing a bill that has not yet achieved passage, during the legislative process, is not exactly radical behavior.

Posted by: MJ | Apr 15, 2005 5:08:37 PM

Or how about the gigantic nothing from these folks:

Or are they just chalked up to the 10%? If so, that's who I was talking about.

Posted by: amosanon1 | Apr 15, 2005 4:55:04 PM

A gigantic nothing from the right? Here's what the Family Research Council has to say:

"Connecticut is known as the Constitution State. This week, Connecticut state senators ignored history and decided to also ignore the will of the people by passing a bill that would grant civil unions to homosexuals. While the senate thinks it is putting together a "great compromise" by allowing civil unions and not same-sex "marriage," it is only doing an end-run around Connecticut voters. Whatever they are called, civil unions or domestic partnerships, allowing government benefits normally reserved for a wedded man and woman to be granted to any coupling diminishes the status and stability of traditional marriage. This has significant impact since marriage is the most basic relationship in the fabric of society.

The Family Institute of Connecticut and the Connecticut Catholic Conference recently announced the results of a jointly commissioned poll which shows that seventy-six percent of Connecticut residents want the chance to vote on a constitutional amendment defining marriage in Connecticut as the union of one man and one woman. The Connecticut house should reject the senate bill and Governor Jodi Rell (R) should veto any civil union legislation that reaches her desk. If legislators are fearful of defending the cornerstone of society, then they should let the citizens have an opportunity to do so by voting on an amendment to the state's constitution defining marriage and its benefits as between one man and one woman."

In other words, now it isn't good enough that a civil union law is passed by the legislature AND included a DOMA. Now the only democratically legitimate method is a referendum!

Hat tip: The Debate Link http://dsadevil.blogspot.com/2005/04/ask-and-ye-shall-receive.html

Posted by: amosanon1 | Apr 15, 2005 4:52:01 PM

Disparaging terms like "theocrats" are just childish. If you really believe that the vast majority of Republicans and/or conservatives want to replace our government with a church, then you are just as ignorant as the folks on the right who say that the left wants to turn us into a communist country.

As to the point of your post, I think that you'll see that conservatives across the country don't give a damn if individual states enact civil unions or domestic partnerships. What people on the left don't or won't understand is that 90% of the people on the right (I wish I could say 100% but that wouldn't be true) have absolutely no animus towards gays at all; they just don't want issues such as the definition of marriage decreed to them by the courts.

As far as CT's civil unions go, mark my word: you will hear a gigantic nothing from the right. Conservatives don't care, so long as the legislature decides these issues instead of the courts deciding for people.

Posted by: MJ | Apr 15, 2005 4:31:01 PM

I must admit that I am no expert on the contours of California domestic partnership law. Each article I've read suggests that CT really is a first, but if it is a second, I'd be even happier. And would it were the 25th!

Posted by: amosanon1 | Apr 15, 2005 3:29:43 PM

I thought California adopted its domestic partner law legislatively -- a law that grants marriage-in-everything-but-name. Two states can't both be the first to do something, unless you mean that a "civil union" is different from a "domestic partnership," even though both confer the functional equivalent of marriage.

I'll agree that the fact that Connecticut, like California, adopted a civil union legislatively is significant development indeed, particularly in the Northeast, where the only other developments have been judicial. Let's hope the legislative adoption of civil unions or domestic partnerships continues -- it'll be more politically legitimate in the eyes of our enemies. It won't stop them from complaining, but it will push them closer to acknowledging their bigotry.

Posted by: keith | Apr 15, 2005 2:16:33 PM

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