Should we amend the Connecticut Constitution at this time?

At the Nov. 4, 2008, elections, the Connecticut official ballot will present two questions for voter decision: (1) Should there be a constitutional convention to amend or revise the state constitution, and (2) should the state constitution be amended to permit a 17-year-old citizen to vote in a primary election, provided he/she will have attained the age of 18 by the time of the next regular election?

Article Thirteenth of the Constitution of the state of Connecticut requires that the question of whether to hold a constitutional convention be submitted to all Connecticut electors (voters) at the general election every 20 years. That means this year, 2008. The question before us is, do we need to amend the constitution at this time? What might be the compelling issues a convention would be asked to consider?

According to current reports in Connecticut (and as we have seen in several other states) there are two “family values� issues that certain interest groups would like to propose at the convention. These two are: (1) to define “marriage� as a union between a man and a woman, thereby excluding same-sex couples, and (2) to overturn Roe v. Wade, the case that affirmed a woman’s “right to choose,� by outlawing all forms of abortion in all circumstances.

Whatever you opinion may be on these two “family values� issues do they require, and are they appropriate for constitutional amendment, as a matter of policy, practicality and law? I think not. Here’s why:

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Constitutionally, it is not for religions or churches to tell state government how to define “marriage� for purposes of marriage license or civil union. That is the prerogative of the Legislature, and it may fall under the review power of the judiciary. Conversely, it is not for state governments or the civil courts to tell religions, churches or persons of faith how to define “marriage� for purposes of the holy state of matrimony. That is the prerogative of the church, canon law and personal belief.

The constitutional principle of separation of church and state requires that these two definitions of marriage (the one civil and the other spiritual) be kept separate, and dealt with separately. The state constitution is a civil document, not a religious one. It determines civil law, not religious doctrine. Consequently, the constitution is not the appropriate legal instrument to impose a faith-based definition of marriage on the Legislature, the courts or the people.

In the recent case of Kerrigan v. State Commissioner of Public Health (2008), the Connecticut Supreme Court, acting within its constitutional capacity, went so far as to declare that Connecticut’s “civil unions,� as currently defined, are not an “equal alternative� to marriage in its full civil sense. This was a statement of civil law, not of religious belief.

It is now for the Connecticut Legislature to revisit the question, and draft an amendment to the Connecticut marital law that will meet the constitutional test of equal protection, and at the same time will reflect the will of the citizens of Connecticut, which appears in the main to favor openness. Thus, amendment of the state constitution for this purpose is unnecessary.

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The issue of “right to life� versus “right to choose� is a highly controversial and extremely complex one. It presents many detailed questions, on which consensus may be difficult to reach, scientifically or theologically, even if we agree on the value of human life. For example, is a fertilized embryo a “life�? Is an unfertilized embryo a “life�? Is a stem-cell in a donated organ a “life�? Does the fact that such a cell could be teased into life make it a “life�? If a birth is to be terminated, what reasons, if any, are acceptable and what medical techniques are acceptable? Does danger to a mother’s life or health count? What about victims of rape, what are their rights? Who decides?

If ever there were an argument for “irreduceable complexity,� this is it. It takes thousands of hours of consideration and thousands of words to analyze, resolve and express these concerns. There is no way that the documentary text of a state constitution can reasonably capture such complexity. What we do have is a judicious U.S. Supreme Court decision, Roe v. Wade, that affirms a right of “personhood� and “privacy� in the U.S. Constitution, which all states must recognize, but allows for federal and state legislative refinement and articulation of the evolving law.

It is for the Legislature to work out the details of conflict resolution, balancing the concerns for right to life and right to choose, and it is for the courts, when necessary, to exercise judicial review. The state constitution is not the appropriate legal or practical vehicle or instrument to address the details. Thus, amendment of the state constitution for this purpose is unnecessary and undesirable.

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Article Tenth of the Connecticut Constitution, as amended by Article XIV, states that any citizen who has attained the age of 18 may qualify (register) as a voter and vote in state and federal elections. The constitution does not address the question of primary contests, or how political parties choose their nominees for subsequent election.

Since the constitution does not discuss or rule out the possibility of a 17-year-old voting in a primary election, provided he/she reaches the age of 18 by the day of regular election, the state Legislature has the prerogative to adopt such a refinement in the election law, if the citizens so wish, with or without amending the constitution.

In the present instance, however, the state Legislature has already considered the proposal favorably, and has, I think wisely, decided for democratic reasons to submit the question by referendum to the citizens of Connecticut, and if approved, amend the state constitution accordingly. Therefore, I could support the proposal, even though it might be preferable not to hang too many detailed ornaments on our constitutional tree. This proposal has nothing to do with the proposal to hold a constitutional convention.

 It is significant that the independent League of Women Voters of Connecticut takes no position on the 17-year-old vote question, but is firmly opposed to using a constitutional convention to narrow the definition of civil (i.e., secular) marriage, or to overturn the Roe v. Wade constitutional principle of a woman’s right to choose. Furthermore, the league does not favor use of constitutional amendment to bypass the Legislature in order to achieve certain other inappropriate objectives, such as abolition or state income tax. Let’s reserve our state constitution for its proper declarative purposes, and render unto the Legislature and the judiciary the issues and devilish details that are properly theirs to decide.

Sharon resident Anthony Piel is a former director and legal counsel of the World Health Organization.