GAY MARRIAGE? : Vermont Must Decide

By O'Brien, Dennis | Commonweal, January 14, 2000 | Go to article overview

GAY MARRIAGE? : Vermont Must Decide

O'Brien, Dennis, Commonweal

On December 21, 1999, the eve of the shortest day of the year, the Vermont Supreme Court handed down a ruling on the vexed matter of "gay marriage." Whether that ruling will cast as short a light on this issue as the winter solstice remains to be seen. The court rejected the claim of the gay plaintiffs that denying them a marriage license was a violation of Vermont law. On the other hand, it granted that same-sex couples were entitled to all the civil benefits extended to married households. Legislation to affirm these entitlements was left to the Vermont legislature. Whether one would encompass this protection under the label of "marriage"or under some category such as "domestic partnership"was not best decided by judicial fiat.

The ruling has been hailed and condemned by both sides of the gay-marriage issue. Gay advocates were gratified by the recognition of equal benefits but vowed to press for recognition of gay marriage. The Catholic bishop of Burlington, Kenneth Angell, regretted the ruling but took comfort in the fact that the court had not legalized gay marriage. Where does the Vermont ruling leave the national debate on gay marriage? I believe that the majority opinion, written by the Chief Justice Jeffrey L. Amestoy, is a model of judicial prudence worthy of national attention.

The plaintiffs argued that the purpose of marriage was to "protect and encourage the union of committed couples." The court rejected that broad construction of "marriage." The chief justice began his opinion by noting that by common definition (Webster's Dictionary) "marriage" is the union of one man and one woman as man and wife. When Vermont law specifies that the town clerk may issue a license to either the "bride"or "groom" it is clear that the legislature had gender in mind.

It is far from clear that limiting marriage to opposite-sex couples violates the Legislature's "intent and spirit." Rather, the evidence demonstrates a clear legislative assumption that marriage under our statutory scheme consists of a union between a man and a woman.

Having rejected any claim to marriage under Vermont statutes, the court then turned to the constitutional question. Plaintiffs argued that refusal to grant a marriage license violated their right to "common benefit and protection of the law guaranteed by Chapter I, article 7 of the Vermont Constitution." Denying access to a civil marriage license excludes couples from an array of legal benefits "incident to the marital relation": access to spouse's medical, life, and disability insurance, etc. On the basis of this "Common Benefit"clause in the Vermont Constitution, the court ruled that gay couples were entitled to the benefits "incident on the marital relation."

Will such a Solomonic slice across the gay-marriage issue become a national precedent? Perhaps, but one should recognize that it stems from the unique character of the Vermont Constitution. This point was elegantly detailed in the chief justice's opinion. The Vermont Constitution dates from 1777 when Vermont was an independent republic. The Vermont fundamental law has a cast not reflected in the U.S. Constitution. The "Common Benefits"provision contains striking language: "[G]overnment is, or ought to be, instituted for the common benefit, protection, and security of the people...and not for the particular emolument or advantage of any single man, family, or set of men...."

The majority opinion calls attention to the difference between the affirmative language of "common benefit"and the "equal protection" language of the Fourteenth Amendment of the U.S. Constitution. In the latter case, one seeks remedy against denial and discrimination; in the Vermont case one envisages a positive mandate of government to provide common benefits.

Justice Amestoy then offers some historical background to establish the spirit embedded in the Vermont Constitution. He notes that the American Revolution was not only a protest against British rule, it was also an internal protest against any "entrenched clique favored by birth or social connections. …

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