What exactly had happened? This was the big question on December 20, when the Vermont supreme court issued its long-awaited ruling on same-sex “marriage” in Baker v. State. Three same-sex couples had claimed that Vermont’s marriage law violated the Vermont constitution. The court did not rule on the marriage statute, but it commanded the legislature, in the name of the Vermont constitution and “our common humanity,” to equalize benefits for same-sex couples.
Commentators flocked to characterize the opinion. Did the court still recognize the unique identity of marriage? Did it “give back” the issue to the legislature? Was this a classic example of judicial tyranny, or a courageous vindication of civil rights? Who won — the state? The plaintiffs? Everyone? Nobody?
These questions will reverberate across the legal and political landscape in coming months. But there is a more important question lurking in the court’s opinion: What does the Vermont supreme court mean by marriage? True enough, the court’s opinion does not overturn any statute. But it tells us a lot about what is at stake in the legal definition of marriage.
Our statutes, after all, embody an understanding of marriage. A marriage is formed by a man and a woman, equal yet different, who join their lives to form a family. Marriage aspires to permanence, fidelity, and children. Marriage law recognizes and supports these aspirations.
This view of marriage has been under intense attack for at least 50 years. Yet it has not been displaced. Permanence has been assaulted by no-fault divorce, yet marriage is still an open-ended covenant, rather than a contract with an expiration date. Fidelity has been de-emphasized in the culture at large, yet marriage still includes only two persons. Openness to children is being challenged by a culture of “choice,” but people still associate marriage with children. Meanwhile, socially, as opposed to legally, marriage continues to have tremendous appeal. (Advocates of same-sex “marriage” trade precisely on this appeal.)
What, then, does the Vermont supreme court have to say about marriage? Listen carefully:
The State’s interest in extending official recognition and legal protection to the professed commitment of two individuals to a lasting relationship of mutual affection is predicated on the belief that legal support of a couple’s commitment provides stability for the individuals, their family, and the broader community. Although plaintiffs’ interest in seeking state recognition and protection of their mutual commitment may — in view of divorce statistics — represent “the triumph of hope over experience,” the essential aspect of their claim is simply and fundamentally for inclusion in the family of State-sanctioned human relations.
(This is not the stuff that dreams are made of.)
Notice how the aspects of marriage are characterized by the court. While the court is high on stability, it is openly skeptical about permanence. While the court still talks of “couples,” it offers no principled basis for limiting state benefits to “the professed commitment of two individuals to a lasting relationship of mutual affection.” Prominent advocates of same-sex marriage believe that limiting marriage to couples is “too dyadic” and narrow. They believe that legalizing same-sex marriage will prepare us for additional “reforms.” Among them is David Chambers of the University of Michigan, a part-time Vermonter, who advocates shedding the dyadic outlook in an article cited by the court.
Finally, the court’s description makes no mention whatsoever of the unique bond between a mother, a father, and their children. Other portions of the opinion tell us why. Opines the court:
the laudable governmental goal of promoting a commitment between married couples to promote the security of their children and the community as a whole provides no reasonable basis for denying the legal benefits and protections of marriage to same-sex couples, who are no differently situated with respect to this goal than their opposite-sex counterparts. [Italics added.]
Here we come to the heart of the matter: There is no necessary connection between marriage and having children. Some people have children even though they don’t marry. Others do not have children but do marry. Anybody can have a child using new reproductive technologies, and same-sex couples can adopt children under Vermont law. The connection between marriage and children has become arbitrary.
This adds up to a functional redefinition of marriage. The state identifies certain socially beneficial tasks (provision of stability, child-rearing). It defines a status (marriage) and, by issuing licenses, assigns this status to those who seek to perform the tasks. To this status the state attaches rights, duties, and rewards.
Justice Denise Johnson, who concurred in the 5-0 decision, spelled out the implication in a partial dissent: If this is marriage, same-sex couples have a right to it. Let us follow her logic: (1) If the Vermont constitution forbids what the majority calls “artificial governmental preferments and advantages,” and (2) marriage is currently limited to male-female couples, yet (3) marriage is a government policy to foster commitment, stability, and child protection, and (4) same-sex couples can be committed, stable, and good protectors of children, then (5) the remedy is to issue marriage licenses — not just benefits — to same-sex couples. Johnson is right about the meaning of the decision, even if the other justices flinched rather than endorse the obvious remedy of same-sex “marriage.”
Where will all this lead? Let us first consider what may happen now in Vermont. The governor has lauded the court’s decision as “very Vermont” and has called for “domestic partnership” legislation. The legislature has a wide spectrum of options. It can simply dig in its heels and refuse to acknowledge the court’s opinion. After all, the court didn’t strike down any law; it only commanded a remedy. There is something inherently overweening, non-adjudicative, and political about such a decision. The legislature could resist this seizure of power. It could adopt a resolution denouncing the method and content of the opinion and decline to legislate. It could also move to amend the Vermont constitution, either with reference to marriage and related benefits, or generally to curtail the court’s powers. This is not just conservative court-bashing. Professor Mark Tushnet, a leader in critical legal studies, has recently published Taking the Constitution Away From the Courts. People across the political spectrum are recognizing that judicial tyranny jeopardizes democracy.
Second, the legislature could cave and legalize same-sex marriage. This is the outcome the plaintiffs hope for. Mary Bonauto, of Gay & Lesbian Advocates & Defenders, co-counsel in the Baker case, expects the lawmakers to “conclude the only way to [comply with the court’s ruling] is to include same-sex couples in the civil marriage laws.” But legislators read the polls, and none of them seems eager to take such an undeniable political risk.
Finally, the legislature could accommodate the court. It could adopt some form of benefits legislation, either extending to same-sex partners the benefits now enjoyed by married couples or extending those benefits more broadly. Why, after all, limit benefits to couples? Under the reasoning of Vermont’s supreme court, there seems to be no principled basis for doing so. If two child-rearers are better than one, why aren’t three better than two? Or four better than three?
Meanwhile, Vermont’s example will inspire others. Already Oregon’s court of appeals has held that some same-sex couples have a constitutional right to spousal benefits. Oregon is ripe for a Vermont-type lawsuit. In both Alaska and Hawaii, where amendments designed to head off same-sex marriage have been added to the state constitutions, public arguments are being made for the if-not-marriage-then-benefits approach. This is ideal for politicians who want to be in favor both of marriage and of benefits.
In the long run, however, that course is politically and legally unstable. Both sides understand this. It is possible to have a legal regime that prohibits some relationships, permits others, and promotes still others (as in France). But even this requires the people to decide whether they are willing to draw distinctions: Which family arrangements merit legal recognition and which don’t? Our country will either reaffirm marriage as a unique social institution based on the union of a man and a woman — grounded in history, tradition, and human nature — or it will follow the attempt of the Vermont supreme court to redefine marriage.
If the latter course is chosen, it is possible to foresee a day — advocated by some libertarians — when all family arrangements are strictly matters of private contract. Or marriage may become a private term, and we may all become domestic partners in the eyes of the law.
But for now, we can still assert what the Vermont court denied: Marriage, understood as the union of a man and a woman, is fully consistent with a commitment to personal liberty and equality before the law. This is what the voters in Alaska and Hawaii decided, and the constitutional amendments they adopted stand unchallenged. This is the dominant opinion in the country and the position of all the presidential candidates. If marriage is built into human nature, then our laws can affirm this truth.
We can tolerate those with whom we disagree and whose actions we question. We can accept some rights claims and reject others and still live together as one republic. But if we replace marriage with neutral notions of “couples” and “commitments” out of a mistaken understanding of equality, it will be our ruin sooner or later. The Vermont court has moved us further in that direction.
David Orgon Coolidge is director of the Marriage Law Project in Washington, D.C.
