5

The Choice: What's Wrong With Vermont's Civil
Marriage Substitute

[M]ost Negroes are fighting against the system of segregation rather than for
the immediate opportunity to have their own children educated in integrated
institutions. They do not want to go to “white” schools so much as they want
to avoid being forced to attend “colored” schools. As one elderly Negro
phrased it with respect to bus integration: “The seats at the back are just as
good as those at the front. Most Negroes still sit in the back, even though we
got the buses integrated. But we didn't fight for seats, we wanted to get rid of
those signs.”

—J.W. Pealtason, 19611

I BELIEVE that even the sweeping system of marriage-like benefits created by the Vermont civil unions statute is still insufficient. That statute, for all its comprehensiveness, and for all the goodwill and courage of those who voted for it, legislators still created a separate and unequal system of matrimony. As we all should have learned from the sad history of separate-but-equal in the context of race, legally mandated “separate” is inherently “unequal” when the law marks the segregated class with a badge of inferiority. Vermont's new legal system of Jim Crow marriage for same-sex couples does just that.

Before rolling into my argument, I want to express my uneasiness about making it. Leaders of the Vermont gay and lesbian community strongly supported the civil unions law. The lead lawyers for the Baker plaintiffs pushed hard for civil unions. At least two of the most courageous and thoughtful gay rights scholars disagree with virtually all I am about to assert. Yale Law School Professor William Eskridge, in his brilliant book, Equality Practice: Civil Unions and the Future of Gay Rights, demonstrated that the civil unions law does not assure full equality with marriage. Civil unions are unequal in status, unequal in their in-

-142-

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