February 17th, 2006 by Brian
When FIC argued before Connecticut’s Supreme Court last week that the Court should grant our motion to intervene in Kerrigan, the case brought by parties seeking a judicial imposition of same-sex “marriage” on our state, the Attorney General’s office argued against it. Appearing the next day on a local radio program, Atty. Gen. Blumenthal said FIC is “more than welcome” to submit a friend of the court brief, but that we have no business in trying to “grab the wheel” to steer the state’s defense of its own marriage laws.
A look at what is happening in other states shows why it is so important for the Court to grant FIC’s motion in Kerrigan. William Duncan provides such a look, along with some important insights, on National Review Online today. An excerpt:
Adding to this, however, is a new trend of states whose laws are being challenged refusing to offer substantive justifications for their marriage laws during the litigation… Thus, when pressed to identify the reason that the court [in New Jersey] ought to allow the current definition of marriage to stand, [the state's attorney] was able only to argue that the court ought to let the legislature act (with the understanding that it might eventually change the definition of marriage on its own) because such a momentous decision is properly made by the people’s representatives.
This is a fine argument, and the state’s attorney seemed to be very talented, but it hardly exhausts the wealth of reasons why the state might choose to endorse marriage between a man and a woman. There is an abundance of information showing the benefits marriage provides to society generally and to children in particular. The fact that the state might also choose to create a separate status for couples in other kinds of relationships does not undercut the importance of these reasons. The state is not foreclosed from making strong arguments for marriage, it is just choosing not to…
Of course, some attorneys general do not like some of the laws they are charged with defending. That does not, however, change their obligation to offer a robust defense of the laws enacted by the legislatures of their states. No matter how skillful an attorney, he cannot help but be hampered if, due to inappropriate political concerns, he is told by his superiors not to raise good faith arguments in defense of his position.
When the state seems unwilling to offer a full defense of marriage laws, other groups can seek to intervene (as they have increasingly done), thus getting the status of full parties to the case. This status, however, is only granted with the court’s permission and is not common in cases of this nature. So those who are deeply concerned about what the courts may do to marriage have to ask to bring material to the judges’ attention through amicus briefs. The good news is that many of these briefs are excellent. The bad news is that the court is not obligated to treat amicus briefs as authoritative, since they do not come from actual parties to the case.
Granting FIC’s motion would make us a party to Kerrigan, allowing us to do all the things that a mere amicus brief would not: put on evidence, cross-examine witnesses, etc. It would also allow us to make the most crucial defense of our marriage laws that Atty. Gen. Blumenthal, for whatever reason, will not make: that same-sex “marriage” will be disastrous for children.