Analysis: VT Decision on 'Civil Unions' for Homosexuals
July 7, 2008
(CNSNews.com) - Despite overwhelming grassroots opposition by Vermonters - and calls by historians and legal scholars to go slow - the Vermont state Legislature last week passed a bill 76 - 69 allowing homosexual couples to form "civil unions" akin to traditional marriage, providing all the same rights and benefits.
If passed by the state Senate this week as expected, Democratic Governor Howard Dean has said he will sign the measure into law, thus bringing Vermont farther than any other state in recognizing homosexual "marriages."
Family advocates and legal experts who have been studying the chain of events that led to the Legislature's historic decision are still reeling at the speed at which the process took place, not to mention its potential impact on society.
"If the Senate now does create this system, at that point marriage just survives as a symbolic parchment with no practical distinction or elevation in the law," Dan Englund, acting president of the Massachusetts Family Institute, told CNSNews.com.
"The message here is that homosexual unions are the practical, legal and moral equivalent of traditional marriage, and with that we disagree," he said.
A large majority of Vermonters also disagree with the Legislature's action. In recent non-binding votes, all but four of 30 towns polled in Vermont voted against domestic partnership legislation. In another straw poll, 50 towns voted against same sex marriages, demonstrating "that the will of the majority of Americans is to preserve traditional marriage," Englund said.
"We would hope the Senate would listen to their constituents and decide against passing this at the eleventh hour," he said.
Vermont lawmakers sought to preserve the term "marriage" solely for the union of a man and a woman, adopting an amendment making that clear. The bill provides for unions that amount to marriage in everything but name. Couples could apply for a license from town clerks and have their civil union "certified" by a justice of the peace or a member of the clergy, and would be entitled to privileges available to married couples in such areas as inheritance, medical decisions, insurance and taxes.
"In effect [the Legislature] separated marriage as an institution from the benefits that come with it," said Hal Goldman, a Vermont lawyer and historian who has represented "Take It to the People," a grassroots coalition in support of traditional marriage. "They said you can keep marriage but you've got to give the benefits of marriage to same-sex couples as well," Goldman told CNSNews.com.
The issue was forced on the Legislature after the state Supreme Court ruled in December that homosexual couples were being unconstitutionally denied the benefits of marriage.
This followed a legal action against the state by three homosexual couples who were refused marriage licenses. They argued that because of their homosexuality the state was denying them a host of benefits enjoyed by heterosexual married couples.
Homosexual rights activists rallied to the couples' defense, hoping if they won their case they could force the question of same-sex marriage in other states and organize a challenge to the federal Defense Of Marriage Act, which they oppose.
However, the Vermont Supreme Court ruled that the state marriage statutes did not allow same sex couples to marry, nor did the Constitution prohibit the state from limiting marriage to the union of one man and one woman.
"That should have been the end of the matter because that was the question the appellants brought to the court," said Goldman, who specializes in the history of law, gender and sexuality.
The court, however, added that although it is constitutional to limit marriage to the union of one man and one woman, it is unconstitutional not to provide the benefits of marriage to same sex couples.
"The first thing that's wrong with that is it's beyond the court's jurisdiction because that's not the question they were asked to resolve. This is the purest kind of policy decision, a decision legislators make," said Goldman, whose grassroots movement for traditional marriage supports a reciprocal benefits bill that doesn't single out same sex couples but allows certain people living together to have reciprocal benefits.
The court ordered the Legislature to create a new legal relationship between the state and same sex couples - a relationship that had never existed before. Many legislators acted on the assumption that if they didn't enact a domestic partnership bill, the court was going to order same sex marriage. Recent statements by senators suggest the Senate is working under the same assumption.
Goldman argued on behalf of Vermont residents that redefining marriage - or creating alternative, state-sponsored sexual relationships such as domestic partnerships, whether heterosexual or homosexual - is not in the best interests of society.
The burden of proof should not be on those who would keep things as they are, he said, but on those who would radically alter America's fundamental social and cultural institutions for their own purposes.
"Currently homosexuals have all of the civil rights protections available to other people in society. What they don't have is the right to marry someone of the same sex. That's a right that has never existed before. You can't argue you are deprived of a right that doesn't currently exist. They don't have the ability to do something they want, but that's not the same thing as saying they're currently deprived of a right available to other people," Goldman told CNSNews.com.
Observers say there likely will be political consequences in November for people who vote in favor of the bill; what is not clear is whether people will allow that to change their position.
"People who voted for this have allowed themselves to be persuaded that if they voted against it they would be bigots. That's the way the debate has been framed in Vermont. People are really frightened to be seen as voting against this because they'll be seen to be voting against civil rights," Goldman said.
Events in Vermont have prompted communities around the country to circle the wagons against what they see as an onslaught on traditional lifestyles. Currently bills that would prohibit the recognition of same-sex "marriage" are pending in 12 states. Thirty states have enacted the type of legislation recently approved by plebiscite in California - that "only marriage between a man and a woman is valid or recognized in California" - in the period from 1995 to 1999.
John Witte, Jr., director of Law and Religion Program at Emory University in Atlanta, Ga., warned that abrupt legal action, either by constitutional amendment or by judicial review of certain acts, could trigger a backlash.
"If the democratic process is not sufficiently ripe and civic associations have not had sufficient time to reflect on this issue - morally, culturally and theologically - then pushing the agenda at law can solidify the opposition in a way that wouldn't have happened if a more natural democratic process had occurred.
"I get a feeling that may well be one of the results of recent machinations in Vermont," Witte told CNSNews.com.
A precipitous action by the Supreme Court in the context of Roe v. Wade "interrupted what had been a relatively free-flowing democratic process with ample diversity and protection of abortion rights and privacy rights attached to abortion," he said.
Roe v. Wade solidified opposition to abortion and heightened the dichotomy between the pro-abortion and anti-abortion forces, and something akin to that may well occur in the case of same-sex unions, he said.
Activists are pushing for homosexual rights in part because they feel stigmatized and ostracized and for centuries have not enjoyed the full opportunity for exercising domestic partnerships in a way they think apt.
"Part of it is concern for the hypocrisy of the state," Witte said. "What one finds increasingly is states have de-institutionalized traditional heterosexual marriage and monogamous relationships to simply be bilateral and terminal sexual contracts. Various sexual crimes on the books [such as] adultery or fornication and other moral ingredients that go into a traditional understanding of the household have largely fallen by the wayside in terms of state enforcement or endorsement.
"So gays have a legitimate argument of hypocrisy on the part of the state for standing so tall on the moral propriety and priority of monogamous heterosexual unions when they [the states] have abdicated a good deal of moral responsibility in the last 30 or 40 years during the so-called sexual revolution," Witte said.
Observers also said faster means of communication such as the Internet fosters a crusading mentality, making it easy for people in prominent positions to orchestrate a political movement and stimulate aggressive grassroots campaigning.
"Frankly the traditional theological and other communities that have spoken against the issue have not been well enough organized and they were caught somewhat unawares. The consequence is there is a kind of a shrill response on the part of a number of religious and cultural groups," Witte said.
The most benign reading of the Vermont decision is that this is another episode in the cultural wars and that in a couple of years of political, legal, cultural and theological battling, other factors and other issues will come up that will occupy legislatures and the media.
"A less optimistic reading would view this as a pinch point in the discussion of the future of the traditional household. If this is one of the transforming agendas that's afoot, there's a real worry on the part of traditionalists, myself included, that there's a slippery slope here. And if you take a step down this slope you increasingly lose the opportunity to defend traditional institutions that depend upon monogamous traditional heterosexual marriages as their cornerstone," Witte said.
The "slippery slope" argument is a serious one and part of the reason folks are so resistant, he said.
Legal observers also deplored a process that permitted such weighty issues as legal protection for non-married couples to be decided in so hasty a manner.
"Vermont just spent over a year trying to choose a state song and the House, after going through lots of public input and lots of hearings, voted not to adopt the new state song," Goldman said. "I think it's astounding that we've spent more time trying to decide on a state song than we have on a decision to radically alter the relationship between the state and its citizens."
Witte agreed: "I don't think there has been sufficient opportunity for the arguments to be vetted in a variety of forms besides constitutional, legal ones. I'd prefer to see that occur at the local democratic level before we move to precipitous judicial review, let alone constitutional amendment.
"When law gets involved in a premature way it does widen the cultural war battlefield unnecessarily and all of us inclined toward the middle get buried in the shrapnel, and that's not a good way to handle these kinds of issues. And it's a very sad society that turns to law to make its hard moral decisions."
"Law does have a place and law does have a role but there are many other forums in which these things need to be debated first. Merely having the debate doesn't mean the gay rights folks win. It merely means they've had a voice and that voice may or may not be convincing to the majority or even the minority," he said.