Go Terk Yourself

Neil Gaiman on free speech:

If you don't stand up for the stuff you don't like, when they come for the stuff you do like, you've already lost.

In response to Connecticut's legalization of gay marriage Seth says:

I feel as though ["legalizing gay marriage"] might be a bit strong. Haven't they simply "illegalized" the state's failure to allow gay marriage?

I'm going to focus on this little bit of pedantry because it's the sort of useless crap that amuses me. Take note that I am not a lawer so all of the following is useless hand waving.

"Legalize" in this context is not too strong a word. Here we have two "sets" of law, constitutional (what the government can do) and civil/criminal (what people can do). Note that these are rough definitions. This is useful for me because it helps me separate the different parts of the decision.

In most places in the States gay marriage is a-legal. I.e. it is neither explicitly allowed nor explicitly forbidden. This is the state Connecticut was in before it passed its civil union legislation. Once civil unions are in place (presumably, I haven't read the particular law) gay marriage becomes explicitly illegal.

The decision by the Connecticut Supreme Court does two things:

1. it directly abolishes the law allowing for civil unions because it is unconstitutional (something the government isn't allowed to do) because it violates equal protection statutes.
2. it indirectly, explicitly legalizes gay marriage. If equal protection prohibits civil unions and prohibits the illegalization of gay marriage outright then gay marriage is legal.

This little bit of hand wringing over the word "legal" may seem silly, but it's important. There are a lot of people who want to demean decisions made by courts as not reflecting the wills of the voters as well as legislation does. This is a flawed point of view - the decisions of our (higher) courts are based on the (state or Federal) Constitution - it's their job to determine whether laws are allowed or not and sometimes, if a law is overturned, decisions may force other actions. But these actions are impelled by the Constitution, not the wills of the men and women who sit on the bench, and calling them anything other than "legal" cheapens them.