My state of Connecticut, source of some of the most important First Amendment cases in American jurisprudence, is now the source of another: Kerrigan, under which the State Supreme Court determined that that state’s ban on same-sex marriage violated the state constitution’s equal protection clause. Never before has a final appellate ruling come right out and said that.
GoM suggests that the McCain-Palin ticket is not well situated to respond to the ruling, squeezed between its own federalist inclination to leave same-same marriage to the states and its need to keep the religious right in enthusiasm mode. My guess it that there will be a boilerplate denunciation of the ruling as a usurpation of popular sovereignty and that will be that–at least for general public consumption. Whatever the case, on November 4 we will not be seeing the kind of “moral values” voting that we saw four years ago.
Meanwhile, in a lament over the implications of the decision, Rod (“Crunchy Con”) Dreher cites Marc Stern’s worries that in the process of recognizing same-sex marriage, courts and legislatures will trample on the rights of religious citizens and bodies to conduct their affairs according to their own lights. It’s worth emphasizing (as Dreher does not), that Stern, general counsel for the American Jewish Congress, actually thinks there’s a compelling case for same-sex marriage. As he put it in an LAT op-ed last summer:
The case for same-sex marriage, reduced to its essentials, is an attractive one. It is that the government in a liberal democracy ought not to impose any one moral vision on its citizens; moral decisions ought to be, as much as possible, a matter of private choice and not law.
The concern is that religiously based opposition to homosexuality–expressed, for example, in a doctor’s refusal to artificially inseminate a lesbian woman, or the refusal of a Catholic adoption agency to approve adoptions for same-sex couples–will be declared illegal. This seems to me a legitimate concern, though one very difficult to resolve. No one would oblige a church to marry a gay couple against its convictions. For a secular company to discriminate gays in hiring because the boss has religious objections to “the gay lifestyle” is another story. If we go down the Dreher-Stern path, there will doubtless be a lot of parsing and hair-splitting, such as so many people find problematic in the Surpreme Court’s Establishment Clause jurisprudence. I say, so be it.