Gay & Lesbian Law Students Ass'n v. Board of Trustees

PALMER, J.,

dissenting. I join the dissent of Justice Callahan because I believe that General Statutes § 10a-149a expressly authorizes the military to conduct on-campus recruiting activities at state-supported schools even though the military engages in discriminatory hiring practices.

In construing § 10a-149a as it does, the majority reaches a result that is not fairly supported by the language of the statute. In particular, the majority misinter*513prets the introductory phrase “[n]otwithstanding any other provision of law to the contrary.” The majority incorrectly asserts that that phrase is a statutory “exception” to the “general rule” set forth in § 10a-149a and, accordingly, that it must be “strictly construed with doubts resolved in favor of the general rule rather than the exception.” The phrase “[notwithstanding any other provision of law to the contrary” is not an exception to the rule enunciated in § 10a-149a at all; it is, rather, an unambiguous expression of legislative intent that the rule set forth in § 10a-149a shall take precedence over any other provision of the law that would otherwise bar the military from engaging in the same on-campus recruitment activities as civilian employers.

By erroneously characterizing the “notwithstanding” phrase as a limitation on the rule created by § 10a-149a, the majority embarks on a path that leads it to an implausible construction of that language. Relying solely on this mischaracterization of the phrase as justification for adopting the most narrow possible statutory construction, the majority asserts, without elaboration, that the phrase “any other provisions] of law to the contrary” refers only to those statutes that would expressly deny the military the same directory and recruiting opportunities as are available to nonmilitary employers. As the majority acknowledges, however, there were no such statutes in existence when § 10a-149a was enacted in 1984 and there is not one in existence today;1 thus, under the majority’s interpretation, the legislature would have had no reason whatsoever to include the “notwithstanding” provision in § 10a-149a. Moreover, it strains credulity that the legislature would have used such sweeping prefatory language had it sought merely to supersede only those narrow statutory provisions relating directly and specifically to on-campus recruitment by the military.

*514This court is not free to attain a result in derogation of the intent of the legislature. Though it might be better public policy to bar the military from on-campus recruiting activities on account of its discriminatory practices, that determination is for the legislature, not for us, to make.2 Because “ ‘this court is precluded from substituting its own ideas of what might be a wise provision in place of a clear expression of legislative will’ Gonsalves v. West Haven, 232 Conn. 17, 26, 653 A.2d 156 (1995); I respectfully dissent.

Indeed, the legislature has never enacted such a statute.

Of course, the public policy pronouncements of the legislature must comport with constitutional requirements. No constitutional challenge, however, has been made in this case.