State of bliss?

After a Vermont court decision, the debate over gay marriage is evolving. But will the privileges of matrimony be extended to same-sex couples?

Published January 27, 2000 5:00PM (EST)

One month after the Vermont Supreme Court ruled that gay and lesbian couples have a right to the same benefits and protections as heterosexual married couples, the state Legislature is starting to move on the issue. This Tuesday, it began hearing public testimony, and both houses hope to craft something they can vote on by the time the session wraps on April 15.

While the court ruling was a boon to gay-marriage advocates, it stopped short of legalizing same-sex marriage. It will be up to the Legislature to figure out the significant small print: either to expand civil marriage to include same-sex couples, or establish a new category of domestic partnership far more sweeping than any now in place.

But one thing is already clear: Baker vs. Vermont opens the door to the biggest redefinition of the institution of marriage since the U.S. Supreme Court struck down laws banning interracial marriage in its 1967 Loving vs. Virginia decision. Though the Vermont ruling didn't give the plaintiffs, three same-sex couples, the right to the marriage licenses, the decision marks the first time that a court has ruled that same-sex couples are entitled to absolute equality under the law.

The court asserted that extending equal rights to lesbian and gay couples "who seek nothing more, nor less, than legal protection and security for their avowed commitment to an intimate and lasting relationship is simply, when all is said and done, a recognition of our common humanity."

Such words have the power to transform public opinion on the issue by framing same-sex marriage as an issue of civil rights, something most Americans cherish, as opposed to one of gay rights, something many Americans find troubling. By focusing on specific real-world benefits denied to one group solely on the basis of a single characteristic, the issue moves away from the debate over a private sacrament and into the arena of public accommodation -- exactly where its advocates want it.

The issue is guaranteed to have national repercussions. If the Legislature affirms the right of gay and lesbian people to marry, it will affect at least the 20 states in the country that have not yet passed laws defining marriage as hetero-only and that refuse to recognize same-sex marriages performed elsewhere.

But more than this, if Vermont legalizes same-sex marriage and other states refuse to recognize such marriages, the result would be a clear violation of the U.S. Constitution's full faith and credit guarantee, in which states are required to show regard for each others' laws. The issue could then proceed to the U.S. Supreme Court. Such a scenario would make it possible to challenge the Defense of Marriage Act (DOMA), passed by Congress in 1996, which declared that states would not be compelled to recognize same-sex marriages performed outside their borders.

While the justices held that all the benefits and protections of marriage must be extended to same-sex couples, they did not rule on the constitutionality of a "separate but equal" arrangement -- e.g., domestic partnership -- where couples are given the benefits and protections of marriage but not marriage itself. (It's worth noting that Associate Justice Denise R. Johnson, known for her strongly worded dissents, wrote in a separate opinion that the court should have immediately given same-sex couples the right to marry.)

Should the Vermont Legislature decide to go with domestic partnership, advocates could then bring the case back to the state Supreme Court with the argument that domestic partnership does not fulfill the court's mandate. But some believe a legislative ruling in favor of gay marriage is unlikely. Craig Bensen, vice president of the anti-same sex marriage group Take It to the People (TIP), asserts that, based on the 57 cosigners of a failed 1998 Vermont DOMA, same-sex is doomed in the Legislature. A Rutland Herald poll released this month showed that Vermonters preferred the idea of domestic partnership to gay marriage 2 to 1.

The distinction is central to the idea of equality -- and not just for ideological reasons. Mary Bonauto, co-counsel for the three same-sex couples who kicked this whole business off by suing the state for the right to obtain marriage licenses in 1997, says, "The only way to provide all the protections and benefits of marriage is through marriage."

Deborah Lashman, a family law lawyer in Burlington and a member of the board of the pro-gay marriage Vermont Freedom to Marry Task Force, says that some legislators are beginning to realize that there are certain benefits that domestic partnership won't cover. These include having a union recognized from state to state, third-party benefits such as those given by employers, and over 1,000 federal benefits including IRS issues, immigration issues and the ability to bring suit in a federal court.

While those in favor of same-sex marriage fight their battle in the courts, opponents across the country have had success bringing the issue to a public vote in pricey campaigns for ballot initiatives backed by wealthy religious groups such as the Catholic and Mormon churches.

Hawaii once seemed the likely launching pad for gay marriage, but the efforts of conservative groups ultimately grounded that progress. In response to a preliminary state court ruling that limiting marriage to opposite-sex partners was discriminatory, opponents launched a ballot initiative, backed by millions of Mormon church dollars. Hawaiian voters OK'd the initiative, which amended the constitution to effectively limit marriage to heterosexuals. This prompted the Hawaii Supreme Court to dismiss a lawsuit brought by three same-sex couples; this decision came 11 days before the contrasting one by the Vermont court.

Hope for same-sex marriage in Alaska was likewise dashed in 1998 with the passage of a similar ballot initiative, also backed by Mormon dollars. Since the state court's decision in Hawaii, mini DOMAs have sprung up in 30 states. A ferocious battle is being waged in California, where representative Pete Knight is putting the same-sex marriage issue, which was voted down more than once in the Legislature, before the people on March 7.

Even in uniquely liberal Vermont, putting same sex marriage to a public vote would likely mean defeat. If a constitutional amendment were placed in front of Vermonters tomorrow asking them to vote on legalizing gay marriage, they might strike it down, though not by much. A January 1999 poll by Vermont Public Radio, 48 percent of those polled were opposed to allowing same-sex marriage, with 43 percent in favor.

For years gay advocacy groups have fought conservatives' charges that they were seeking "special rights." Advocates assert that measures protecting lesbians and gay men from discrimination, and combating measures that excluded them, are part of an effort to achieve "equal rights" -- full citizenship and nothing more.

In the attempt to hammer this home, groups such as the National Gay and Lesbian Task Force and the Human Rights Campaign have drawn parallels between their own fight for equality and those of other minorities, particularly African-Americans. This analogy hasn't, thus far, flown with most Americans, who tend to see race as something immutable and sexual orientation as chosen.

But in focusing on the simple facts of benefits, of, as the court wrote, "access to a spouse's medical, life, and disability insurance, hospital visitation and other medical decision-making privileges, spousal support, intestate succession, homestead protections and many other statutory protections," same-sex marriage may lose some of its exotic quality and become a matter of common sense.

"More people are coming to understand that there's no good reason to discriminate against gay people willing to take on this commitment," says Evan Wolfson, director of the marriage project at Lambda Legal Defense and Education Fund, a group that advocates for gay rights.

But if pro-same-sex marriage groups are hoping to frame the issue as one of civil rights, opponents are hoping to sidestep issues of discrimination (which most everyone left of Gary Bauer has realized is a no-no). They hold up marriage as a protected zone, an institution that simultaneously embodies God's plan to unite men and women and "traditional values" and is so fragile that it might suffer irreparable damage if its membership policy were changed and its privileges extended to a wider group.

Vincent McCarthy, northeast senior counsel for the conservative American Center for Law and Justice, was offended by the court's decision, which he felt "reduced marriage to the sum of its parts and deemed it a mere functional relationship." He went on to say, "There is an intrinsic value to marriage that cannot be replicated by same-sex partners. There's a unitive value to marriage which is that it brings together two sexes, which is the way we are created, and brings them together in a way that is a third entity that transcends the male and the female." In McCarthy's view, the union marriage deserves special benefits that should not be available to everyone.

According to Ruth Charlesworth, a TIP board member who directs the Family Life Office/Respect Life for the Catholic Diocese of Burlington, a same-sex marriage law would be "damaging in the sense that it's equalizing," and would be "just one more inroad to weaken the family."

But Charlesworth also asserts that her views are "not a matter of discrimination or bias or homophobia. There is no hate or dislike or bitterness in our hearts." Like other conservatives, she steers the discussion away from gay issues in general. "This is about one issue and one issue only, and that issue is marriage and family and all of the things that would be so injurious to building strong family life in a society where family is so fragile to begin with."

"Clearly marriage means something," counters Lashman. "Otherwise there wouldn't be this vehement denial of civil marriage to gay and lesbian couples. But separate is inherently not equal. There is a value that society places on people when they allow them to get married."

Marriage has always been a loaded proposition. Today the concept of marriage tends to stand in for "traditional values" at a time when the American family increasingly has little to do with the two-parent norm held up by conservatives.

Vermont's legislative council invited Nancy Cott, a professor of history and American studies at Yale and author of the forthcoming "Public Vows: A Political History of Marriage in the United States" to speak before the state Legislature. She described the history of marriage as a history of change, especially as it concerned the rights of slaves and interracial couples to marry.

In an interview, Cott stated that this is not the first time that people have balked that change would kill the institution. When the property rights of married women were modified between 1830 and 1870, people "had all sorts of dire predictions and marriage changed, but it is still very much with us. It made people as uncomfortable as same-sex marriage makes people now."

Though some people -- gay and straight -- may feel "uncomfortable" with same-sex marriage for a variety of reasons, its emergence seems inevitable. A recent Wall Street Journal poll revealed that two-thirds of all Americans believe same-sex marriage will come to pass. Wolfson says such numbers indicate that on some level, people are ready to live with it.

Californians will vote on the issue on March 7, and the Vermont decision has sparked the introduction of mini-DOMAs in New Hampshire and Ohio's state legislatures. While the cultural debate rages on the legal train chugs forward, unperturbed.

By Deb Schwartz

Deb Schwartz, former senior editor at OUT, is a writer in New York.

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