This past Friday the Connecticut Supreme Court ruled by a 4-3 vote that homosexual couples have a right under the state constitution to marry, and that the state's civil union statute -- the first such statute in the country -- granting a full panoply of legal and economic rights to gay couples, violated the state's equal protection clause by denying the official status of marriage to gay couples.
I'm not going to take on the issue of gay marriage, nor will I get into the legal merits of the Connecticut case. I want to address a larger question that goes beyond same-sex marriage. Kerrigan v. Commissioner of Public Health involves not an arcane area of administrative law, but a question that goes deep into the gut of American politics. It brings about a result that both Presidential candidates and their running mates have eschewed, and which, under the "full faith and credit" provision of the US Constitution, might have to be given effect in other states. (Unless successfully challenged on constitutional grounds, the 2004 federal Defense of Marriage Act permits any state to not recognize a same-sex marriage performed in another state).
The Connecticut case was decided in a split decision, with three judges vigorously dissenting. I do not believe that a high court should put forth a decision involving significant social, moral or religious consequences other than by a strong majority. Brown v. Board of Education, perhaps the most well-known and lauded court decision of the 20th Century, was unanimously joined by the nine members of the US Supreme Court. While today we regard its rejection of "separate but equal" as self-evidently correct, it overturned precedent and overcame significant legal arguments and was hardly a preordained result. Most important, Chief Justice Warren and his colleagues understood that a decision certain to result in deep and far-reaching conflict in the ensuing years must be presented in a united front by the Court.
Even the 1973 Roe v. Wade decision establishing a right to privacy protecting a woman's decision to have an abortion reflected a very strong 7-2 majority. I would hope that in the event the Supreme Court takes up this controversial issue in the future, those justices who believe, as do many legal scholars, that the 1973 decision rested on shaky legal grounds, would not only be hesitant to overturn what is now long-established precedent, but would in any case ensure that any significant change to the law in this area not be by a narrow 5-4 majority.
This is part of a larger subject, about which I shall write more, namely, the roles that various participants have played in fanning the flames of social and religious conflicts in society being played out among the body politic. Without arguing the broad proposition of judicial activism, I will say that nothing displays judicial arrogance quite so much as the overturning of the will of the people on a matter of deeply held cultural and societal norms, by a majority of one.
