[I later heard how timely the below truly is given today is National Coming Out Day!]
Breakfast with Scot is a pleasant little film about a former Canadian hockey player (now t.v. sports guy) who grows to love the 11 year old son of his partner's brother's girlfriend (victim of a drug overdose). Eric (Thomas Cavanagh of the U.S. t.v. show Ed) is particularly uncomfortable with Scot's effeminate ways (including a love of show tunes), which might be a sign of his homosexuality, or a reflection of his attachment to his mother. Eric might be gay, but he remains partially closeted, still hurt by comments made when he was a player ("Erica" and such). Noah Bernett is very good as Scott.
This film, nothing too surprising but still pretty good, is timely in that the Connecticut Supreme Court (4-3) has just decided that same sex marriage is protected under the state constitution. The state was a pioneer in recognizing civil unions legislatively. The Massachusetts Supreme Court held that a ban on same sex marriage did not meet rational basis review. The Californian Supreme Court went the strict scrutiny route as did the minority of the New York Supreme Court. This time, it was quasi-suspect scrutiny, which is where gender lies in the federal courts. But, the federal courts is only one factor in the Connecticut weighing scheme:
(1) the text of the operative constitutional provision; (2) holdings and dicta of this court and the Appellate Court; (3) persuasive and relevant federal precedent; (4) persuasive sister state decisions; (5) the history of the operative constitutional provision, including the historical constitutional setting and the debates of the framers; and (6) contemporary economic and sociological considerations, including relevant public policies.
The court here found California more "persuasive" than a majority of its sister state courts. It recognized a living Constitution approach. As to contemporary considerations, the bottom line was that a ban would harm homosexuals, while true equality would not harm the real interests of different sex marriage. The federal courts as a whole tend to be hurt by misguided reference to Bowers or limited analysis of the equal protection matter at hand. As to the equal protection analysis, the core issues are:
subject of long-standing and invidious discrimination and whether the group’s distinguishing characteristic bears no relation to the ability of the group members to perform or function in society ... It is evident, moreover, that immutability and minority status or political powerlessness are subsidiary to the first two primary factors
There is long-standing discrimination, and (one dissent notwithstanding) some support for equality doesn't negate it; see, gender as a quasi-suspect class. Anyway, the legislature making clear it does not "condone" homosexuality and so forth underlines the limited gains. Sexuality "bears no relation" and reliance on conformity to other states or tradition doesn't justify making it so. As to "immutability," the importance of sexuality to a person meets the test, putting aside the whole nature/nurture debate. Anyway, the court takes a sort of sum of the parts approach to the question, not allowing any one factor decide the question.
The dissents* focused on the usual dubious matters. As noted, one issue was the assumed powerful nature of homosexuals, though this does not make classifications by gender or race justified. The fact the state Constitution specifically lists various classes of people does not mean others might be "quasi-suspect," as precedent suggests. One dissent raised the children factor, though the majority noted the state specifically did not rely on that (cf. New York). But, many married people cannot or will not have children. This is surely not the only reason for marriage, so that does not work either. Anyway, same sex couples often have children as well. As the majority noted:
primary reason why many same sex couples wish to marry is so that their children can feel secure in knowing that their parents’ relationships are as valid and as valued as the marital relationships of their friends’ parents
Marriage has a central role in our society; a "separate but equal" regime of civil unions, especially given the continuing history of discrimination in this realm, is not true equality. When the Massachusetts Supreme Court first decided that a ban on same sex marriage was unconstitutional, I thought that civil unions might be a suitable path. Since my own state of New York does not even have them (New York City has domestic partnerships), that would be a leap. Still, is it really truly equality? Is a pragmatic compromise the right path for a body with "the role and the duty of the judiciary to determine whether the legislature has fulfilled its affirmative obligations within constitutional principles"?
Probably not. Anyway, our governor held that the state must recognize out of state marriages as a lower court suggested. It is time for our state as a whole to match the path of two nearby states; the fact we do not even offer civil unions is particularly troubling.
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[Update] * The NYT linked to the majority opinion; but the dissents (the second is a brief one that underlines the majority opinion has a high standard to overcome) of Kerrigan v. Commissioner of Public Health can be found here. Having read over them, let me add a few more comments.
The primary dissent (two judges) is not convincing as to the political power of homosexuals; besides, the other factors in the analysis make it somewhat besides the point. As to the fundamental right to marry, procreation was simply not the only reason for its existence. The second dissent (one judge) focuses on this alleged point, which is rather lame. It surely is not the only reason now, and equal protection concerns only emphasize the point. And, the first dissent doesn't adequately cover the argument that a sex discrimination problem is present here.
The first dissent would take a cautious approach, noting the state already protects same sex couples (but as the majority notes, only so far). This message is okay, and I was sympathetic to it, though the dross of the opinion hurts its overall effect. The second does not adequately answer those that question how depriving same sex couples of the right to marry is necessary to protect heterosexuals with children. As the majority notes, the policy hurts the children of many homosexuals/bisexuals.
You are left with the idea that it's reasonable to have a state policy that favors heterosexual (man/woman) child raising. But, a same sex marriage ban is a poorly fit way to do this, especially in a state that allows same sex adoptions. The fact that it hurts many of the class is is assumed to help emphasizes the point. Finally, just how helpful is it when civil unions (this also was noted by the first dissent) in effect have most (if not all) of the benefits of state authorized marriage?
Overall, such dissents -- even to the degree they make some good points -- come out to sound rather lame.