4

Vermont's “Third Way”
Civil Unions as an Alternative to Civil Marriage

Most of the time it was like having a ballroom full of dancers, dancing
different steps, to music that wasn't quite right for any of them.

—Tom Kelly, Gruman Aircraft Co., on the Lunar Excursion Module, 19951

IN THIS chapter I want to trace the legislature's response to Baker. Justice Johnson, dissenting in Baker, warned against sending the matrimonial rights of same-sex couples into an uncertain fate in the “political cauldron”2 of the legislature. (This was, perhaps, an allusion to Macbeth).3 “Cauldron” was, as it turned out, an apt image.

It might be worth mentioning that I wrote this chapter as the events described were unfolding. My daily ritual was to pick up my four daily newspapers each morning, read them, put them aside for the day, write up the day's events in the evening, and have them word-processed into the manuscript by Laura Gillen and Judy Hilts the following morning. If this chapter contains an aura of uncertainty about the post-Baker bill's immediate future—much as a diary would—that is why: As I wrote it day-by-day, I genuinely was uncertain about what would happen next.

The Baker decision suggested that the legislature had two options. Actually, as Professor Greg Johnson observed, there were five possibilities: One, the legislature “can do nothing and, as long as they try hard, the supreme court will not interfere. Two, they can stonewall, and the court could somehow force them to act. Three, they can create a domestic partnership law. Four, they can allow same-sex marriage. And, finally, they can eliminate marriage as a civil right, reserving marriage for religion, and they can instead institute a domestic partnership law for all, gays, lesbians, and heterosexual couples alike.”4

The option of opening up the marriage statutes to include same-sex couples was rejected early on by the governor as wrong and by legislators as politically unrealistic. However, a comprehensive parallel sys

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