11/12/2008 05:12 am ET Updated Nov 17, 2011

Gay Marriage Comes to Connecticut

Between having one of our senators on the sort-of losing ticket in 2000, a former governor imprisoned, a House representative with the narrowest margin of victory in congress up for reelection in 2008, the only House Republican from New England, the only state in New England to vote for Barack Obama in the primaries, a Republican party that endorses Democrats, and a Democratic party that nearly tore itself to pieces over a Lexus-driving trust-funded millionaire and the leader of the creatively named "Connecticut for Lieberman" party, the last eight years have been pretty wild in the Constitution State.

On Friday, things got even more interesting. In a 4-3 decision, the Connecticut Supreme Court ruled that Gay Marriage is legal. It's about time. The precedents give clear direction: separate is not equal; semantics matter. Apparently, it is really that simple.

In fact, this ruling will constitute an important precedent in and of itself -- it is the first state Supreme Court ruling to hold that civil union statutes violate state constitutions. This doesn't come as a surprise, and hopefully this ruling will find its place in the pantheon of landmark social justice decisions.

But the most compelling feature of this decision is a broader one -- the relative weakness of the dissenting opinions. Justice Peter Zarella, for example, made a thoughtful and alliterate injunction: "The ancient definition of marriage as the union of one man and one woman has its basis in biology, not bigotry." This is because in the view of Justice Zarella, the goal of marriage is to "privilege and regulate procreative conduct." Liam O'Brien, a shrewd and acerbic observer, wondered aloud to me whether this opinion meant that infertile couples and couples that choose not to procreate should be prevented from marrying. My point here is not solely to recount Mr. O'Brien's joke, but also to suggest that it is very hard, even for talented legal thinkers, to deploy strong legal arguments in favor of the distinction (even if only semantic) between civil unions and marriage. Justice Palmer's majority opinion reflects this too: "Although marriage and civil unions do embody the same legal rights under our law, they are by no means equal [;] the former is an institution of transcendent historical, cultural and social significance, whereas the latter is not." Once again, the different ways one might describe two ostensibly identical items renders one fundamentally different from the other.

Proponents of the view that "marriage is between a man and a woman" are losing ground. There are plenty of reasons why this is so, legal and otherwise, but it comes down to the ever-important question: "Why does it have to be that marriage is only between a man and woman?" The old aphorism that "marriage is between a man and a woman" seems overly traditionalist and divorced from rationality in light of the Connecticut Supreme Court's decision. Now, the new best definition of a family is also the title of a prominent gay rights organization, "love makes a family." And since love does make a family (one doesn't have to be married to have a family, anyway), marriage too is not about procreation as such, but about love and privileging love's role in the construction of one of the most basic structural elements of society, the family. The essence of this decision is that in Connecticut there never was and nor can there be a politically-enshrined heterosexual monopoly (enforced through semantics) on familial love.

Barack Obama and Joe Biden do not support Gay Marriage, instead they support civil unions (McCain and Palin are another story). This has been a disappointing element of their platform. But, I'm not convinced that their stance on the issue matters much at all. Increasingly, it looks like the question of Gay Marriage is out of the hands of legislators and the executive branch, and into the hands of the courts. That's a good thing, because it looks like the courts, as well as Connecticut, are finally on the right track.

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