an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
a great day to celebrate (except for a gratuitously offensive amendment)
There is much to celebrate now that the Connecticut House has joined the state sentate in passing a civil union bill. The democratic embrace of full legal rights for same-sex couples is real progress. The insistance on the distinct term (civil union vs. marriage) is still "separate but equal" discrimination -- but being forced to use a "blacks only" water fountain is better than having no water fountain at all.
However, before passing the bill, the House approved two amendments. The first reiterated the state's definition of marriage as being between a man and a woman. Jennifer Brown and I organized 79 law professors to sign a letter arguing that this amendment was unnecessary because it would have no legal effect. Connecticut Attorney General Richard Blumenthal issued an opinion the next day backing us up.
But the House not only passed the unnecessary amendment -- which necessitates now additional consideration by the Senate, they also passed a gratuitously offensive amendment that limits same-sex civil unions to couples that are at least 18 years old.
This amendment smells in the nose. The original bill went to great care to create the same conditions for civil union as for marriage. So since different sex couples are allowed to marry at 16 or 17 with permission of parent or probate judge, the original civil union bill would allow 16 and 17 year old same sex couples to register for civil unions with the same sorts of permission.
It is frustrating that the house passed the offensive age amendment more easily (126-22) than the marriage definition amendment (80-67).
So what's so wrong with the age restriction? It substantively discriminates against same-sex couples. Why is a 17 year old fit to marry some of the different sex, but not fit to enter into a civil union with someone of the same sex? I, by the way, don't have a strong feeling that 17 year olds should have the right to do either. And empirically there are not a lot of 17 year olds marrying in Connecticut. But what saddens me is that because of this single hiccup, Connecticut will not be able to say that it gives same sex couples the same options for legal rights as different sex couples. You only get the same rights if you are old enough. Posted
by Ian Ayres [link]
How is a distinction in the law offensive without regard to the reason the distinction was put in place? In some cases, one can infer backwards to an invidious purpose (i.e. "white only" = caste society) But do you really think the legislators were "out to get" 17 year old homosexuals? Perhaps the heterosexual exception exists in order to allow young couples with children to marry. I think you would agree that heterosexuals under 18 are much more likely than homosexuals under 18 to have children. I have no idea what the reason was for the distinction, but you don't seem to either - or rather, you don't seem to care, and assume just bc a distinction exists, it is based on animus. But if animus was the motivator for that distinction, then the legislators are inept. No animus is revealed by a one year age gap. Just as no animus is revealed by having a segregated single bathroom stall. Just because you suffer dirty men, doesn't mean women should have to. Talk about spreading the pain around for no good reason.
Unfortunately, I think there's still a perception in some places that homosexuality and pedophilia are correlated. Prohibiting underage same-sex couples from entering a union is probably meant to prevent "man-on-boy" sex. I would also submit that the distinction is meant to lend just a tinge of state disapproval—maybe to discourage homosexual teens.
But more broadly, Ayres is correct because he points out that there's no real rational basis for making a distinction like this. Since it's a substantive amendment that negatively affects the rights of citiznes, there should be some sort of justification.
I sympathize somewhat with emily's statement, but how about this: in fact, since minors are more likely to be unsure about their sexuality early on, there actually is some chance that more will have had heterosexual activity (perhaps to "prove" something?) and thus children.
Penn. might be right about the reasoning of the amendment, but if completely right, it would be one based on animus, and probably suspect.
Arbitrary provisions like this are just asking to be challenged, and hopefully, successfully.
While I tend to agree that this difference is kinda silly it is somewhat paranoid to immediatly assume it represents some sort of animus. There are many other plausible explanations and it seems unjustified to jump to one conclusion.
It might be that many of the legislators had no objection because they believe 18 should be the age in every situation but changing an existing law and modifying one being passed are very different things. Making homosexual relations wait till 18 does not contravene any long tradition and hence is fairly easy to do changing the age for hetersexual marriage would be much tougher.
Furthermore, an earlier poster has a good point. There may be some state interest in allowing teenage parents to get married. Thus if you are a lawmaker who thinks it is better if people wait till they are 18 to get married but realizes there may be some harm in not letting teenage couples with a young child get married you might rationally support this change with no animus to homosexuality at all.
While a few lawmakers probably had these misconceptions about homosexuality in mind there is no reason to assume all or even most of them did. For instance I think people would be better off if they couldn't marry till 18 period. If I was asked to vote on this ammendment I would vote yes as there is no reason not to do our best to protect young gay people just because the society is failing to protect young straight people.
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