Gay, Lesbian and Bisexual Issues - Vermont’s Permission of Same-sex Marriage

The Irrationality of Vermont’s Permission of Gay Marriage

This essay explains the rationale behind the Vermont decision - and its effect upon conservative groups especially. In December of 1999, the Supreme Court of Vermont decided that it was, on balance, a violation of the Constitution of Vermont to withhold from couples of the same sex the benefits that flow to married couples.

But the court did not think it proven that the laws on marriage had been animated by any intention to discriminate against women, lesbians, and gays in the way that other laws, in the past, had discriminated against blacks. The laws in Vermont were meant to secure marriage, or to establish marriage as the proper setting for sexuality, not to saddle people with disabilities. But just why legislators in the past bore such convictions-or whether those convictions were any longer defensible-the judges did not think they were in a position any longer to say.

Nevertheless, they recognized that it was portentous to install, on their own, a novel form of marriage. A move of that kind, they admitted, "may have unforeseen and disruptive consequences." They refused to hold then that the "plaintiffs are entitled to a marriage license." The judges declared, instead, that "judicial authority is not ultimate authority," and so they put back, in the hands of the legislature, the question of whether couples of the same-sex might receive the benefits of marriage without having the union described as a "marriage."

The decision in Vermont set off alarms in the community of conservatives, with broadsides fired off once more against "judicial activism." But a closer look at the text of the decision yields a slightly different response: Yes, and yet no; it is not as bad as it appears-but it may be even worse.

The judges would no doubt bridle at the charge of judicial activism, but their surprise would only confirm just how deeply the premises of that activism have penetrated. For the judges may no longer even be aware of how much they have detached themselves from any constraints contained in the constitutional text, or in the principles of jurisprudence themselves. Consider what the judges offer earnestly as the ground of their judgment in this case-the so-called Common Benefits clause of the Vermont Constitution, which reads:

That government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community, and not for the particular emolument or advantage of any single person, family, or set of persons, who are a part only of that community.