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‘Unseemly’ Conduct By The AG

By KAREN LEE TORRE

Connecticut Supreme Court Justice Peter Zarella’s dissent in the Kerrigan same-sex marriage case pointedly rebuts the majority’s reasoning and demonstrates the inaccuracy of its various premises. But deserving the most attention is Footnote 15. The back-story to that grenade of a footnote raises the serious question of whether the interests of the people of the State of Connecticut were truly represented in Kerrigan.

Convinced that Democratic Attorney General Richard Blumenthal would not mount an effective opposition to same-sex marriage, the Family Institute of Connecticut advocacy group sought to intervene in the case at the trial level. The FIC feared that Blumenthal would not advance the very arguments that successfully defeated Kerrigan-type claims in other states. The FIC’s motion was denied as it failed to overcome what Blumenthal enjoyed under law – “the presumption that the attorney general is adequately conducting the defense of the [existing] marriage statutes.”

In 2006, the Connecticut Supreme Court heard oral arguments on the FIC’s appeal of the ruling on its motion to intervene. Notably, Blumenthal sent a surrogate. Nonetheless, he was effectively put on notice by the justices that if he failed to argue the state’s various policy interests behind its traditional definition of marriage (among them, responsible procreation) he would not be adequately representing the state’s interests.

Nevertheless, when Kerrigan returned to the Supreme Court, Blumenthal’s surrogate expressly disavowed the very governmental interests that the FIC wished to advance and handed the four judges in the majority what they needed to rationalize a constitutional right to gay marriage. The argument Blumenthal refused to advance – the procreation argument -- was “the only argument,” Justice Zarella noted, “that other courts have found to be persuasive in determining that limiting marriage to one man and one woman is not unconstitutional.”

In a truly perverted twist, the majority did not consider FIC’s winning arguments because it was just an amicus. Yet in 2006, in denying the FIC’s request to intervene, the court not only presumed that Blumenthal would discharge his duty and adequately articulate and advance the state interests that FIC had identified, but noted that FIC was surely capable of submitting an amicus brief chock full of these arguments for the court’s consideration.

There is more. Justice Zarella noted that a New Jersey court confronted a similar situation when its “attorney general disclaimed reliance on promotion of procreation and creating optimal environment for raising children as justifications for limiting marriage to opposite-sex couples.” The New Jersey court, it was noted, “was entitled to consider those arguments when raised by amici, and found them to be dispositive.”

Justice Zarella concluded his points on this issue with this very loaded statement: “In light of this history, I believe that it is unseemly, to say the least, for the majority to decline even to address the arguments raised by the amici.” (Emphasis added.)

Blumenthal was bound by our state Constitution, our laws, and the Rules of Professional Conduct to competently and vigorously represent the people of this state in this case. He deliberately declined to advance an argument that was not only available to him but was one that other courts found dispositive in favor of the people.

First, who ever heard of a state attorney general sending subordinates to argue the single most important landmark ruling to come from his state’s supreme court? That alone says something.

What says even more is what Blumenthal is doing now. He has linked arms with the gay marriage lobby in urging voters to vote “no” on Nov. 4 on having a state constitutional convention, an aim of which, gay activists assert, is overturning the Kerrigan ruling by constitutional amendment.

The Kerrigan ruling has angered many people and fueled their distrust of the courts. Footnote 15 is a story that will fuel the feeling of many that they have been mugged. Unseemly? More than that, this whole thing stinks like a boathouse at low tide.

Karen Lee Torre, a New Haven trial lawyer, litigates civil rights issues in the federal courts. Her e-mail address is thimbleislands@sbcglobal.net.