A Question of Civil Rights

By Will Baker

In July of 1997, three homosexual couples, residents of Vermont, were denied marriage licenses when they requested them of the clerks in their respective places of residence, and brought suit against the state and their towns for the right to marry. In December of 1997, Linda Levitt, Superior Court Judge, dismissed the suit, and the Plaintiffs were granted an appeal to the Vermont Supreme Court. In May of 1998, several briefs were filed by different parties, some in support of, and some opposed to the Vermont Attorney General’s position that the statutory language that denies same-sex marriages in Vermont is constitutional.

In November of 1998, the Vermont Supreme Court heard oral arguments in Baker vs. State, the first homosexual couple to bring suit. Then on December 20, 1999, the Vermont Supreme Court issued its opinion that lesbian and gay couples "may not be deprived of the statutory benefits and protections afforded persons of the opposite sex who choose to marry." However the original question brought before the Vermont Supreme Court was, "do Vermont’s existing marriage laws violate the Constitution." In making this ruling the Court stated: "It is important to state clearly the parameters of today's ruling. Although plaintiffs sought injunctive and declaratory relief designed to secure a marriage license, their claims and arguments here have focused primarily upon the consequences of official exclusion from the statutory benefits, protections, and security incident to marriage under Vermont law. While some future case may attempt to establish that --notwithstanding equal benefits and protections under Vermont law -- the denial of a marriage license operates per se to deny constitutionally- protected rights, that is not the claim we address today." What the Court did focus on, based on the Remedy which it imposed, mandating that the Vermont State Legislature either amend the current marriage laws or develop and adopt a domestic partnership law similar to what is currently on the books in Hawaii, was the Plaintiff’s deprivation of the statutory benefits and protections afforded persons of the opposite sex who choose to marry.

But what does all of this legalistic mumbo jumbo mean? It seems to me that the folks filing this suit were going for the "brass ring," the legalization of same sex marriage. And as anyone who has closely followed this matter can tell you, most folks thought that this suit was all about answering the question of whether the statutory language that denies same-sex marriage in Vermont is constitutional. This widely held belief was based upon what the litigants were arguing for and against during the initial suit and the subsequent appeal. It seems to me that the Court’s ruling took most folks by surprise. But in issuing this ruling did the court wisely find the middle ground, or was the ruling an arbitrary and capricious violation of the constitutional separation of powers?

Some would argue that, had the plaintiffs sought "injunctive and declaratory relief" designed to secure the rights that they were denied due to the "consequences of official exclusion from the statutory benefits, protections, and security incident to marriage under Vermont law," the court would have been correct in this ruling. However the plaintiffs, by the Court's own admission, did not make that argument. Instead they sought "injunctive and declaratory relief designed to secure a marriage license." Therefore does not all this imply that the question before the Court was actually whether the form of relief specifically requested by the plaintiffs, that the State be compelled to provide them with marriage licenses, was appropriate (legally and constitutionally)? And therefore, shouldn't the Court have ruled on the issue at hand; the question of whether Vermont’s existing marriage laws should be amended, representing a ruling in favor of the plaintiffs, or that the existing marriage laws are not unconstitutional or illegal thus forcing the plaintiffs to bring another more appropriately worded suit, seeking the relief that the domestic partnership act would provide? It seems to me that the leap that the Court took, in directing the Legislature to either amend Vermont’s marriage laws or create new domestic partnership legislation could be construed as an inappropriate jumping of the gun.

Conversely, other folks would pragmatically argue, "what’s the difference?" If the goal is to extend civil rights to folks that are being withheld them, why impose an extra step? And since the question of whether the Court overstepped it’s bounds in issuing this ruling comes down to a very subtle point of law, and since most of us are not constitutional law scholars, we do not possess the required information to make this determination anyway. I can certainly understand this argument as well.

So, in a sense, it seems to me that the Court may have skirted the real issue. And it didn't stop there. It also passed on a legal requirement that the Vermont Legislature amend existing laws or create new legislation, with the goal being to grant "marriage benefit equality to same sex partners." As an aside, I’m sure that the Court is aware that Vermont is one of thirty other states to have enacted, or to have on the books, legislation pending in defense of the traditional marital arrangement --these thirty states took this action in response to Hawaii’s decision, the only state in the union to do so, to legalize same sex marriages This convoluted and confusing situation was the Vermont Supreme Court’s way of saying Happy Holidays to Vermonters.

For me, what further muddles this situation is that, although I have concerns regarding the constitutionality of the Court’s ruling, I ultimately agree with it. I believe that when two people, regardless of their gender, decide to share their lives with each other, they should not be withheld the, to use the Court’s wording, "benefits, protections, and security incident to marriage." For example, it seems to me that health benefits that would otherwise be extended to one’s spouse should be provided to gay and lesbian partners. My position is based on the belief that marriage is primarily a civil institution. Therefore, any civil rights or benefits incident to the arrangement must be extended to all. However I am also aware that some folks are strongly opposed to this position on moral and religious grounds, and I respect their prerogative to disagree with me.

However, I do not believe that marriage should be redefined to include folks of the same sex. It is said that politics makes strange bed fellows, therefore I probably should not find it so strange that some of the wording in the associated legal brief filed by the Roman Catholic Diocese of Vermont resonates with me: "Marriage like all things must have a definition…It cannot mean everything, or it will mean nothing." However I found myself struggling for an answer when a good friend of mine, with whom I was debating this issue asked, "why not give gay folks marriage licenses?" My ham-handed response spoke to how the current definition of marriage specifically involves a husband and wife, with the traditional goal being procreation and the passing on of accumulated knowledge to the offspring. I must admit that the conversation made me extremely uncomfortable. However I persevered and explained my belief that one of the main causal factors of most of our society's ills is poor parenting. And therefore I am reluctant to support anything, which seems to lessen, confuse or diminish marriage, traditionally the main mechanism for preparing our youth for adulthood. But again, other folks disagree with me on this position as well.

Many folks in Vermont feel that a domestic partnership agreement would be equivalent to the failed "Separate but Equal" policies that preceded the Civil Rights Movement. They argue that we would be letting gay and lesbians on the bus, but they would be sitting in the back. I understand their position, but I do not agree with it. I believe that gay and lesbian relationships have as much worth and value as the relationships of married individuals. I also feel strongly that associated civil rights and benefits that arise from a marital relationship should not be withheld from their gay and lesbian counterparts. However, again, I believe that a significant component of marriage involves creating an effective environment for the birth, nurturing and rearing of children for the ultimate benefit of society (if it is done effectively), and if it is not, to society’s ultimate detriment.

I am aware that gay and lesbian couples are rearing children. And I have no reason to doubt that these kids are growing up in atmospheres of support and love. However these couples represent just a tiny fraction of society’s parents. Is it fair or correct to address the desire of these folks to have their unions proclaimed marriages if this might lessen marriage in general? I think not. It seems to me that in this instance; the needs of the many clearly outweigh the needs of the few.

I am not at all certain how this drama will play out, but I am glad that Vermont has a proud tradition of tolerance. In 1777 Vermont became the first state in the union to abolish slavery. And Vermonters cherish freedom of expression. I have many gay and lesbian friends and neighbors in this state and I value the contributions, which they have made towards making Vermont the wonderful place that it is. However, as exampled by the tense discussion with my friend that I spoke to above, it seems to me that this issue has the potential to be divisive and polarizing. In addition, Vermonters are concerned that, since the national spotlight is being cast upon our otherwise usually quiet home, there is the possibility that outside interests may use the Green Mountains as a venue for waging political battle. However, it seems to me that there is an opportunity here to extend much needed civil rights to our gay and lesbian neighbors, while displaying the tolerance which we like to claim as one of our more favorable traits. It is my sincere hope that we will make the most of this situation, and in doing so, conduct ourselves in a manner that befits Vermont’s reputation.


 (Essay Collection)