CT Supreme Court Points Out Obvious, Will Obama Listen?

In a 4-3 decision the Connecticut Supreme Court affirmed the right of same sex couples to marry just as heterosexual couples do. reading the decision the logic is not complex or even particularly hard. The reasoning given is straight forward and obvious. Separate is not Equal.

Especially in light of the long and undisputed history of invidious discrimination that gay persons have suffered; we cannot discount the plaintiffs’ 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 the institution of marriage. In other words, ‘‘[b]y excluding same-sex couples from civil marriage, the [s]tate declares that it is legitimate to differentiate between their commitments and the commitments of heterosexual couples. Ultimately, the message is that what same-sex couples have is not as important or as significant as ‘real’ marriage, that such lesser relationships cannot have the name of marriage.’’

Although the legislature has determined that same sex couples are entitled to ‘‘all the same benefits, protections and responsibilities . . . [that] are granted to spouses in a marriage’’; General Statutes § 46b-38nn; the legislature nonetheless created an entirely separate and distinct legal entity for same sex couples even though it readily could have made those same rights available to same sex couples by permitting them to marry. In view of the exalted status of marriage in our society, it is hardly surprising that civil unions are perceived to be inferior to marriage. We therefore agree with the plaintiffs that ‘‘[m]aintaining a second-class citizen status for same-sex couples by excluding them from the institution of civil marriage is the constitutional infirmity at issue.’’ Accordingly, we reject the trial court’s conclusion that marriage and civil unions are ‘‘separate’’ but ‘‘equal’’ legal entities; and that it therefore ‘‘would be the elevation of form over substance’’; to conclude that the constitutional rights of same sex couples are implicated by a statutory scheme that restricts them to civil unions. Although marriage and civil unions do embody the same legal rights under our law, they are by no means ‘‘equal.’’ As we have explained, the former is an institution of transcendent historical, cultural and social significance, whereas the latter most surely is not. Even though the classifications created under our statutory scheme result in a type of differential treatment that generally may be characterized as symbolic or intangible, this court correctly has stated that such treatment nevertheless ‘‘is every bit as restrictive as naked exclusions’’; because it is no less real than more tangible forms of discrimination, at least when, as in the present case, the statute singles out a group that historically has been the object of scorn, intolerance, ridicule or worse.

Civil Unions are not marriage and two institutions is not going to work when one will do. The question should be put to Senator Obama and to Senator Biden exactly how there conceptual scheme for civil unions would avoid this kind of logic. Biden from the debate:

Q: Do you support, as they do in Alaska, granting same-sex benefits to couples?

BIDEN: Absolutely positively. Absolutely no distinction from a legal standpoint between a same-sex and a heterosexual couple. Same-sex couples should be able to have visitation rights in the hospitals, joint ownership of property, life insurance policies, etc. That's only fair.

and Obama

Q: On the grounds of civil marriage, can you see to our community where [your stance of separating gay rights from the word "marriage"] comes across as sounding like "separate but equal"?

A: Look, when my parents got married in 1961, it would have been illegal for them to be married in a number of states in the South. So obviously, this is something that I understand intimately, it's something that I care about. But if I were advising the civil rights movement back in 1961 about its approach to civil rights, I would have probably said it's less important that we focus on an anti-miscegenation law than we focus on a voting rights law and a non-discrimination and employment law and all the legal rights that are conferred by the state. Now, it's not for me to suggest that you shouldn't be troubled by these issues. But my job as president is going to be to make sure that the legal rights that have consequences on a day to day basis for loving same sex couples all across the country.

Both Senator Obama and Senator Biden are lawyers. Senator Obama taught con law at the university of chicago. If anybody understand exactly what the constitutional and civil rights impact of granting civil unions that are like marriage in everything but name are it should be senator obama. i can only think that he believes a constitutional challenge to the institution he would create would fail. He may get to this position through several possibilities. The most obvious would be that the US supreme court would not operate at the same scrutiny level that the CT court did. Adam B points this out over at KOS,

Much ink is then spilled on turf familiar to Con Law nerds -- what level of scrutiny do discriminations against gays receive under the law? The Court struck a middle course -- not merely rational basis (or the rational basis + animus of Cleburne/Moreno/Romer), and not quite strict scrutiny, but quasi-suspect status and intermediate scrutiny, which is how gender-based classfications are evaluated under the law. This is a more heightened level of scrutiny than that currently afforded to gays under the federal Constitution, and it requires that the state provide an "exceedingly persuasive" justification that the classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives.

Obama probably believes that the current make up of the court would not increase the scrutiny level for any challenge to a civil unions law. Leaving the scrutiny level at the appallingly low bar of rational basis. Rational basis level means that the government need only show that the challenged classification is rationally related to serving a legitimate state interest. That interest could be "keeping the peace" for all we know.

It is also possible that Obama's thought process as illustrated by his debate response proceeds along the lines that once the actual rights are in place through one means or another the nomenclature barriers will fall away or if they dont that homosexuals will not be materially worse off than heterosexuals. This is a really pragmatic and cautious view in keeping with Obama's style and history. He could not care less about the naming of things as long as the underlying substance is the same. What then does it matter that the names are different? This of course ignores the point that the CT court used as a basis for its reasoning,

Even though the classifications created under our statutory scheme result in a type of differential treatment that generally may be characterized as symbolic or intangible, this court correctly has stated that such treatment nevertheless ‘‘is every bit as restrictive as naked exclusions’’; because it is no less real than more tangible forms of discrimination, at least when, as in the present case, the statute singles out a group that historically has been the object of scorn, intolerance, ridicule or worse.

Obama may be relying on a pessimistic and pragmatic view that should homosexuals fail to win on getting the entire distinction between marriage and civil unions tossed they would still be left in the substantively better position by acquiring the important rights he enumerates like visitation rights in the hospitals, joint ownership of property, life insurance policies. Sen. Obama has never presented himself as a radical despite the rights cries to the contrary. i think though that his cautious and pragmatic nature may be limiting the fight on this topic.

the biggest example is california's prop 8. It is true that Obama's stated position on the issue is very much against prop 8.

As the Democratic nominee for President, I am proud to join with and support the LGBT community in an effort to set our nation on a course that recognizes LGBT Americans with full equality under the law. That is why I support extending fully equal rights and benefits to same sex couples under both state and federal law. That is why I support repealing the Defense of Marriage Act and the "Don't Ask Don't Tell" policy, and the passage of laws to protect LGBT Americans from hate crimes and employment discrimination. And that is why I oppose the divisive and discriminatory efforts to amend the California Constitution, and similar efforts to amend the U.S. Constitution or those of other states.

For too long. issues of LGBT rights have been exploited by those seeking to divide us. It's time to move beyond polarization and live up to our founding promise of equality by treating all our citizens with dignity and respect. This is no less than a core issue about who we are as Democrats and as Americans.

Obama is not going to campaign against 8. Not going to happen. However his views opposing the prop do not seem to be widespread imo. I worry that many of california's voters will take his continued advocacy for a separate institution as a fig leaf for supporting 8. The mormon army that has descended on California and is pouring millions of dollars into the pro-8 campaign seems to be winning. Two recent polls show Prop. 8 winning, though not over 50% yet. A more vocal statement by obama about not taking away the rights of gay people might help. He does not have to start stumping for it but i cant help but feel he might be able to lend some more vocal disapproval of 8.