Legalizing Gay Marriage

Legalizing Gay Marriage

Legalizing Gay Marriage

Legalizing Gay Marriage

Synopsis

Every day seems to bring news of legal challenges to existing marriage laws and the constitutionality of any form of union for same-sex partners. In this timely and accessible book, Michael Mello argues that the public debates and political battles that have divided Vermont and Massachusetts will be repeated across the country as state after state confronts the issue of legalizing gay marriage. Michael Mello examines recent landmark decisions in state and federal high courts granting civil rights protections to homosexuals. In Vermont, the Supreme Court's recommendation that legislators recognize the "common humanity" that links all individuals irrespective of sexual identity and consider the question of same-sex marriage resulted in the first state legislation to establish civil union. In Massachusetts, the court's ruling that gay marriage is a right protected by the state constitution has plunged the legislature into a contentious debate about a constitutional amendment. In both states, as in California and New York, public discussion of equal civil protections for gays and lesbians soon become mired in contending views of morality, religion, social mores, and the sanctity of heterosexual marriage. Mello regards the widespread and virulent opposition to any form of same-sex unions as proof that in Vermont, as elsewhere, homosexuals are indeed a "despised minority" in need of the law's protection. Thus, civil union laws represent only a partial victory because they create a separate and inherently unequal category of relationships for gay people. Mello's analysis of the issues provides an invaluable guide to the battles being waged in state legislatures and by politicians at the national level. Author note: Michael Mello is Professor of Law at Vermont Law School and the author of five books on capital punishment, including The Wrong Man: A True Story of Innocence on Death Row and Deathwork: Defending the Condemned.

Excerpt

Michael Mello begins his book, Legalizing Gay Marriage: Vermont and the National Debate, with the astute observation that “like abortion and capital punishment, same-sex marriage sits on the cultural fault line of morality, religion, and law.” Mello explores the topic of same-sex marriage through a fascinating discussion of Baker v. State, a 1999 decision of the Vermont Supreme Court, which, in recognition of “our common humanity,” held that the Vermont constitution guarantees same-sex couples the same benefits and protections enjoyed by married heterosexual couples. in response to Baker, the Vermont legislature enacted a “civil unions” law that provided to gay couples more than 300 benefits enjoyed by married heterosexuals but stopped short of opening up the institution of civil marriage to include gay and lesbian couples.

Although others have written about the creation of civil unions in Vermont, Mello goes beyond the formal confines of the courtroom and the legislative chamber and, through a remarkable collection of primary sources, presents a fascinating description of the political and cultural environment that resulted in the creation of civil unions. Mello also takes issue with others who have unqualified praise for Vermont's approach. He acknowledges that Vermont's civil union represents a significant step forward in the struggle for gay rights, but insists that it ultimately fails because it stigmatizes same-sex unions through the same sort of “separate but equal” treatment that once characterized racial distinctions and that was ultimately rejected by the Supreme Court in Brown v. Board of Education. Mello's analysis makes clear that even in the most progressive quarters, our nation is in denial about the extent of our homophobia.

Legalizing Gay Marriage is a most timely and important discussion of an issue that is likely to dominate the social and legal agenda for years to come. Indeed, in 2003, several Canadian courts held that the prohibition on same-sex marriage violates Canada's Charter of Rights and . . .

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