Just a brief comment on this column by Jonathan Rauch and his criticisms of the Connecticut Supreme Court decision affirming the right to marriage for same-sex couples.
Back in May, commenting on the California decision (“Hold the Champagne”), I called this kind of all-or-nothing thinking “legal totalism”, which,
it seems to me, is tailor-made to rule out any kind of accommodation, even if that accommodation gives gay couples most of what we need with the promise of more to come (soon). I think SSM is a better policy than civil unions. And I think denial of marriage to gay couples is discriminatory. But to make even a well-intentioned compromise ILLEGAL strikes me as a step too far, and a good example of how culture wars escalate.
And now, once again, a court pulls the rug out from under a compromise that gives us 95 percent of what we want uncontroversially. Once again, other states are put on notice that they’d better not enact civil unions unless they want to get SSM instead.
The major problem with this, in my view, is that compromise is not the role of the courts, and Rauch is fuzzing the issue by insisting that the courts should allow compromises that violate fundamental rights to stand. Courts are faced with basic principles that are simply not amenable to that — I mean, what kind of compromise is allowable in the concept that “all are equal under the law”? Compromise is what happens in legislatures, as it did in Connecticut on this issue.
As for culture wars escalating, let’s be very clear on why this is a front in the so-called “culture wars” to begin with: James Dobson, Donald Wildmon, Peter LaBarbera, Matt Barber, et al.
I don’t have time for an in-depth post right now, but you can be sure I’ll come back to this — watch for updates.
The last sentence of the quote strikes me as unlikely — that having civil unions would make the courts *more* likely to insist on going all the way to marriage. It seems like no unions is a graver injustice, and therefore would be more likely to motivate courts to insist on change, whereas they may accept civil unions as good enough. Insofar as civil unions “lead to” marriage, it seems more likely to be due to a common underlying cause in increasing public acceptance of LGBT people.
Stentor,
Read the CA decision — it specifically says it is not starting from the position of whether same-sex marriage is a right in the California constitution, but rather “The question we must address is whether, under these circumstances, the failure to designate the official relationship of same-sex couples as marriage violates the California Constitution.” I haven’t even glanced at the Connecticut decision yet, but it may be similar.
It provides additional legal fodder for the attack on the no-marriage laws. A civil union law may be poorly written, may have inconsistencies which aid the lawyers who are suing for marriage, or may provide legislative history which works against the conservatives.
That does not mean that the court will necessarily go all the way to marriage, but it certainly adds something to the legal side of things. As a very simple matter: depending on the state, it is possible that the issue of gay marriage has already been raised and rejected. A new law provides a new way to challenge the antigay folks.