The Republic of T.

Black. Gay. Father. Vegetarian. Buddhist. Liberal.

Equality in Connecticut

Part of the problem with my morning routine is that by the time I get around to checking the news, it  isn’t news any more. That is, it’s already been blogged by everybody and their brother. But in case you haven’t heard, the Connecticut Supreme Court overturned the state’s marriage ban.

Connecticut’s Supreme Court ruled Friday that same-sex couples have the right to marry, making that state the third behind Massachusetts and California to legalize such unions.

The divided court ruled 4-3 that gay and lesbian couples cannot be denied the freedom to marry under the state constitution, and Connecticut’s civil unions law does not provide those couples with the same rights as heterosexual couples.

“I can’t believe it. We’re thrilled, we’re absolutely overjoyed. We’re finally going to be able, after 33 years, to get married,” said Janet Peck of Colchester, who was a plaintiff with her partner, Carole Conklin.

Justices overturned a lower court ruling and found in favor of the plaintiffs, who said the state’s marriage law discriminates against them because it applies only to heterosexual couples, therefore denying gay couples the financial, social and emotional benefits of marriage.

I haven’t had time to read the entire decision, but here’s what I’d call the “money quote” from the decision.

Even though the right to marry is not enumerated in our constitution, it long has been deemed a basic civil right. E.g., Loving v. Virginia, supra, 388 U.S. 12 (“[m]arriage is one the basic civil rights of man” [internal
quotation marks omitted]); Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541, 62 S. Ct. 1110, 86
L. Ed. 1655 (1942) (same). Although we traditionally have viewed that right as limited to a union between a man and a woman, “if we have learned anything from the significant evolution in the prevailing societal views and official policies toward members of minority races and toward women over the past half-century, it is that even the most familiar and generally accepted of social practices and traditions often mask unfairness and inequality that frequently is not recognized or appreciated by those not directly harmed by those practices or traditions. It is instructive to recall in this regard that the traditional, well-established legal rules and practices of our not-so-distant past (1) barred interracial marriage, (2) upheld the routine exclusion of women from many occupations and official duties, and (3) considered the relegation of racial minorities to separate and assertedly equivalent public facilities and institutions as constitutionally equal treatment.” In re Marriage Cases, supra, 43 Cal. 4th 853–54

Like these once prevalent views, our conventional understanding of marriage must yield to a more  contemporary appreciation of the rights entitled to constitutional protection. Interpreting our state constitutional provisions in accordance with firmly established equal protection principles leads inevitably to the conclusion that gay persons are entitled to marry the otherwise qualified same sex partner of their choice. To decide otherwise would require us to apply one set of constitutional principles to gay persons and another to all others. The guarantee of equal protection under the law, and our obligation to uphold that command, forbids us from doing so. In accordance with these state constitutional requirements, same sex couples cannot be denied the freedom to marry.The judgment is reversed and the case is remanded with direction to grant the plaintiffs’ motion for summary judgment and application for injunctive relief.

In this opinion NORCOTT, KATZ and HARPER, Js.,
concurred.”

My initial reaction, not being a legal scholar, is that it seems to follow the precedent set by the California Supreme Court.

It also bring sup something else I meant to post about back when Brad Pitt donated $100,000 to the fight against Proposition 8 in California and made this statement.

Because no one has the right to deny another their life, even though they disagree with it, because everyone has the right to live the life they so desire if it doesn’t harm another and because discrimination has no place in America, my vote will be for equality and against Proposition 8.

And the anti-gay initiative supporters responded thusly in one of their emails.

“Mr. Pitt is obviously an uninformed donor and voter if he fails to understand the ramifications of homosexual marriage in our society,” stated Karen England, campaign manager for Yes on Proposition 8. “Homosexual marriage will harm married couples and our nation’s children. Redefining marriage means that all marriages will immediately be devalued. Young children will be exposed to all sorts of unhealthy variations on marriage: one man and three women, two men and a woman, and eventually marriage with minors. Destroying the government-transcending definition of marriage will have far-reaching implications that we cannot even predict at this time because no society has ever survived such an anti-social experiment.”
 
Pitt has famously declared that he won’t consider marrying the mother of his three children-actress Angelina Jolie-until “everyone else in the country who wants to be married is legally able.”
 
“Perhaps Miss Jolie should reevaluate whether Mr. Pitt is sincere in his intent to marry her,” stated England. “All couples have been legally allowed to marry since 1967, when the historic case of Loving v. Virginia ended anti-miscegenation laws. This case recognized that marriage is between one man and one woman, regardless of race. But unlike truly historic civil rights advancements, the homosexual movement wants to completely redefine marriage and twist it into an unrecognizable relationship.”

Did you catch that? “All couples have been legally allowed to marry since 1967…”  All couples? The next line — or the next lie, actually — clears it up: “The case recognized that marriage is between one man and one woman regardless of race.”

Except that it didn’t. Just to be sure, I went and read the entire decision. I even searched it for just such a declaration, and found none. Because Loving v. Virginia didn’t “recognize that marriage is between one man and one woman, regardless of race.” You can argue that the justices in that case couldn’t have conceived of same-sex couples marrying, but that’s speculating.

Nothing in the decision says what England said it does. What the ruling did was establish marriage as a basic civil right, as cited by the Connecticut court.

Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). See also Maynard v. Hill, 125 U.S. 190 (1888). To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

The justices in loving weren’t addressing same-sex marrige, and they didn’t offer any rulings on same-sex marriage. Their ruling, however, has informed courts that are currently addressing marriage equality.

But the lie-within-a-lie is that “All couples have been legally allowed to marry since 1967…” What England isn’t saying is a familiar argument the other side trots out on a regular basis, and some of them can’t even say it with a straight face: “Gay people already have the right to marry. They just have to marry someone of the opposite sex.”

Which of course, is no right at all. Unless people whose objections to same-sex marriage are based in religion are suggesting that gay people enter into dishonest sham marriages. That — requiring people to lie to themselves, their spouses, the world, etc., and pretend to be something they’re not — should undermine any claims to morality on the other side, as they are recommending one “sin” in place of another “sin.” That is, it would undermine them as far as any reasonable person is concerned.

My only other thought about the Connecticut decision right now is that it will do some good for couples like the one I blogged about a while back, Rob Scanlan and Jay Baker.

Having to face something like this is one of my greatest fears. It’s a story that reminds me a lot of Laurel Hester.

They live on a circle of tidy houses in a subdivision nestled in Windsor Locks, a couple in love since they met in a Hartford bar 30 years ago.

Another gray-haired, tax-paying family of two. You might like them as neighbors.

They own their home. There are retirement accounts for the future. They go to church. There were these plans, too, for hiking, kayaking and enjoying life for years to come.

This being the land of civil unions, Rob Scanlan and Jay Baker figured things were looking up for an aging gay couple in the suburbs.

Then, a little over a month ago, Rob was diagnosed with amyotrophic lateral sclerosis – ALS – and they were reminded that there isn’t equality.

It’s different for gays, even in a blue state with a civil union law. The problem is not that ALS is a death sentence. It’s that Congress and the federal government recognize only marriage when it comes to taxes, Social Security and medical issues.

Because federal law does not recognize civil unions, Rob and Jay could be faced with liquidating everything – home, savings, retirement – to pay for costly care. Meanwhile, I’m told, a married heterosexual couple can sometimes take advantage of federal benefits so that a surviving spouse can at least protect the home.

Rob and Jay’s case is not entirely clear yet, but the inequity remains.

“You have a couple that has been together all this time. They have paid their taxes and they have contributed to the community,” said Gary Buseck, legal director for the Gay & Lesbian Advocates and Defenders in Boston. “Why are they treated differently? There is no answer.”

There’s an answer alright, but it’s not one you would want to hear the other side articulate: Because they want it that way. They will say they’re not opposed to things like hospital visitation, etc., but then they turn around oppose anything that would give us that right, because it “too closely resembles marriage.” They will say that we can have legal documents drawn up, but then they turn around and try to pass laws that could undermine those documents (marriage resemblance again).

They will say they’re not opposed to x, y or z. What they won’t say is that they are opposed to x, y or z being a right. Of course, that means that if you’re denied x, y or z, you’re out of luck. No right has been violated, and you have no recourse. Anyone who wants to discriminate against your or otherwise give you trouble can, and there will be nothing you can do about it. And it will be when you’re at your most vulnerable.

I wish sometimes that someone would ask them why they don’t think their “gay friends” should have that right, and others. Hell, I wish their “gay friends” would ask them.

I don’t know how Scanlan and Baker are doing now, but I found this update about them from about a year after my post.

But if I and the rest of planet heterosexual owns this word called marriage, what do my friends Jay Baker and Rob Scanlan have? How do we define a loving relationship of more than three decades, of two men together facing Rob’s terminal diagnosis of ALS?

I called Jay at their place in Dibble Hollow in South Windsor after listening to a morning’s worth of lawyers talking about what marriage means. I just couldn’t accept our state’s view of who owns this word, as if love can be defined in a thick legal brief.

When we last talked, Jay and Rob had quit their jobs and were traveling to favorite destinations, intent on savoring whatever amount of time they had left together. I wrote about their fear that this catastrophic illness would ruin them financially. That hasn’t happened, but the ravages of ALS have overtaken them, and Rob’s future is now defined by months, not years.

“Marriage has a whole different connotation to it,” Jay said when I asked him whether he thinks of himself as married or just in a civil union. “It’s about heart and soul. It’s been the center of our life.”

Jay’s partner Rob can no longer speak. He’s in a wheelchair. Jay takes care of him full time. He told me he loves this man as much today as 31 years ago.

But is it an intimate experience, I asked, as in, the kind of emotional, spiritual connection shared by a man and a woman in a loving marriage?

“It’s far more intimate than anything I’ve ever experienced,” Jay told me. “I firmly believe marriage is a church thing and civil union is a law thing. If there is a church that wants to bless a marriage, then go ahead.”

The Connecticut ruling won’t affect federal law, so I don’t know how much it will help  Scanlan and Baker. But if it can help them, I hope it came in time.

I’ve posted the full decision to Scribd. You can read it or down load it here.

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