Tuesday, October 14, 2008

Judicial Tyranny in Connecticut

There is so much wrong with the Connecticut Supreme Court Opinion in Kerrigan, that I know not where to start.

One thing must be said for it: the legal analysis is better than that in either Goodridge or In re Marriage Cases. This may mean that the justices in Ct. have learned from the "mistakes" of their counterparts in Massachusetts and California.

In any case, the Kerrigan opinion is still very flawed. For the moment, I shall illustrate only two errors of fact and interpretation on which the Ct. court's rationale depends: the conflation of "same-sex attraction" with being "gay"; the uncritical acceptance of historical concern for public morality as essentially rooted in prejudice, intolerance and hatred.

I am aware that this is a diffuse, indeed almost the default position. An error, however, is an error, even (and sometimes especially) when the vast majority hold the erroneous position as true. Just ask Athanasius, who had the world against him. The point is that being attracted to a person of the same sex is a determinate libidinal condition. Being "gay" is a lifestyle choice. The law does plenty to influence lifestyle choices, always has and always will. It may be that the law must remain "neutral" with respect to this particular lifestyle, though the case must be made - it cannot be presupposed.

The second issue needs no elucidation.

Finally, the court in Kerrigan commits the same basic error as the SJC in Goodridge, namely, to assume that the state creates, and therefore has it in its power to redefine the institution of marriage.

Marriage is a natural social institution that is logically, temporally and ontologically prior to the state. When a state, through one of its organs, arrogates the power to alter the structure of marriage, the state in principle declares itself to have power over the basic structure of nature. If the state has such power, in principle, the state is not naturally limited in the scope of its power. A state that is not naturally limited in the scope of its power is a total state.

NB the issue is not one of structural, constitutional limitations on the power of government. The issue is, as Hamilton has placed the matter, that "[E]very power vested in a Government is sovereign, and includes by force of the term, a right to employ all the means requisite, and fairly applicable to the attainment of the ends of such power; and which are not precluded by restrictions & exceptions specified in the constitution; or not immoral, or not contrary to the essential ends of political society." Hamilton was addressing the question of the constitutionality of a national bank under the federal constitution of 1789. Nevertheless, his discussion touches the general science of government.

When government is not really so limited, we live under a regime of absolute tyrrany. The Supreme COurt of Connecticut, hiding behind a contentious question involving the entire citizenry, and in the name of civil rights, has made all citizens supine servants of the court's whimsy.

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