Although marriage and civil unions do embody the same legal rights under our law, they are by no means ‘‘equal.’’ As we have explained, the former is an institution of transcendent historical, cultural and social significance, whereas the latter most surely is not. Even though the classifications created under our statutory scheme result in a type of differential treatment that generally may be characterized as symbolic or intangible, this court correctly has stated that such treatment nevertheless ‘‘is every bit as restrictive as naked exclusions’’; Evening Sentinel v. National Organization for Women, 168 Conn. 26, 35, 357 A.2d 498 (1975); because it is no less real than more tangible forms of discrimination, at least when, as in the present case, the statute singles out a group that historically has been the object of scorn, intolerance, ridicule or worse.We do not doubt that the civil union law was designed to benefit same sex couples by providing them with legal rights that they previously did not have. If, however, the intended effect of a law is to treat politically unpopular or historically disfavored minorities differently from persons in the majority or favored class, that law cannot evade constitutional review under the separate but equal doctrine.
Civil unions are, ultimately, nothing more than societal accomodation of gay couples. The existence of this separate institution - devoid, as Justice Palmer correctly points out, of the significance and profound beauty of the union of marriage - is in fact discriminatory. Not to toot my own horn too much, but I made almost precisely this argument in a paper I wrote about gay marriage in 2005; if I could only find a copy of it I would post some of the relevant excerpts.
I do recall beginning my argument with an overview of the language used to describe homosexuality. Unfortunately, it is only too easy to find examples of prominent public figures comparing homosexuality to bestiality, demeaning the loving and committed gay relationships that are genuinely pro-family, and reducing a significant portion of our population to nothing more than the target of hateful rhetoric. To survey this political/legal milieu and conclude that civil unions are the answer is an simply an insufficient response to an already-embattled group. The right of marriage is not simply the right of legal union and the benefits that come with that union. It is the right to express love and devotion through a profound and ancient institution -- one which will benefit from this sort of inclusiveness.
Fundamentally, the argument against gay marriage (at least the one from a religious perspective) is an old-world argument, and this is why I am convinced it will fail. The familiar cliché that "God made Adam and Eve, not Adam and Steve" - besides being theologically, historically, and scientifically ignorant - appeals to a sort of reasoning that has been largely abandoned in the Western political tradition. Few today will argue that the law should ban whatever the Bible bans or permit whatever the Bible permits (or what it fails to condemn). That outdated thinking was often the force behind political and religious support of slavery, racial discrimination, and denial of women's rights.
But the religious argument against homosexuality and its legal sanction takes this very form, relying on a sort of Biblical interpretation that focuses on distinct passages, often read out of context and divorced from the Bible's transcendent message of love.
This point is brilliantly demonstrated by the Presbyterian theologian Jack Rogers in his book Jesus, the Bible, and Homosexuality. Rogers demonstrates that, in fact, the Bible does not condemn homosexuality in general, and that its relatively small number of declarations on homosexual behavior (relative, that is, to the number of its declarations on violence, poverty, greed, and many other issues which should be of more concern to people of faith) are highly contextual. Furthermore, the subsequent condemnations of homosexuality by Christian churches have relied on faulty interpretation, lack of historical and cultural context, and (in some cases) simple hatred. It is worth noting, incidentally, that Jesus is completely silent on the issue of homosexuality. Rogers concludes that acceptance and embracement of loving, committed homosexual relationships is entirely compatible with - and encouraged by - the Christian faith. Even if one allows that there is some room for disagreement on the specific issue of marriage, certainly there is nothing Christian about the disdain, hatred, exclusion, and discrimination leveled against our gay brothers and sisters by some "Bible-based" Christians among us.
So, three cheers for Connecticut for standing up for equality - not just in letter but in spirit. Advocates for marriage equality will no doubt suffer disappointing setbacks, but ultimately these goals - which are important and worth our continued efforts - will be achieved.