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LEGAL AFFAIRS - A Vote For Gay Marriage-But Not by Judicial Fiat LEGAL AFFAIRS - A Vote For Gay Marriage-But Not by Judicial Fiat

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LEGAL AFFAIRS - A Vote For Gay Marriage-But Not by Judicial Fiat

February 19, 2000

Vermont and its legislature are mired in furious debate over the state Supreme Court's ruling two months ago that the legislature must "extend to same-sex couples the common benefits and protections that flow from marriage under Vermont law," either by allowing same-sex marriages or by creating comprehensive "domestic partnership" rights.

Unlike most Vermonters (and most Americans), I agree that we should extend the full protection of the law to same-sex partnerships. As the court put it: "The professed commitment of two [gay] individuals to a lasting relationship of mutual affection ... provides stability for the individuals, their family, and the broader community." And as my colleague Jonathan Rauch has written (in The Washington Post): "It has never been clear to me why discouraging gay relationships in favor of sex in parks and porn shops is good for the American family, or anyone else."

But where do the five unelected justices of the Vermont Supreme Court get the authority to override the value judgments that have for centuries been embedded by the people's elected representatives in the marriage laws everywhere?

The Vermont court's answer is chapter I, article 7 of the state's constitution: "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 only part of that community."

It's clear that none of the Vermonters who adopted this clause in 1777-apparently for the purpose of ruling out any privileged aristocracy-dreamed of extending the benefits of marriage to same-sex couples. No matter. "Out of the shifting and complicated kaleidoscope of events, social forces, and ideas that culminated in the Vermont Constitution of 1777," Chief Justice Jeffrey L. Amestoy held for the court, "our task is to distill the essence, the motivating ideal of the framers."

Citing precedents involving such matters as Sunday closing laws and a fence-repair statute, Amestoy distilled the ideal that laws must have "a just and reasonable relation to the legislative goals." Then he reasoned that the legislature's restriction of the legal benefits of marriage (access to spousal insurance benefits, property and inheritance rights, and the like) to couples of opposite sexes was not reasonably related to the state's asserted goal of promoting the link between procreation and child-rearing, because many same-sex couples raise children while many husbands and wives do not want children.

Thus did the judges read their values into a 223-year-old document, while solemnly professing that their ruling reflects not "the private sensitivities or values of individual judges," but rather "judicial restraint and respect for tradition."

So is this a classic usurpation of legislative power by judicial fiat? Actually, it's a fairly close call, in my view. The distinction between judicial fiat and legitimate constitutional interpretation is more one of degree than of kind. After all, the U.S. Supreme Court has for a century been striking down laws based on constitutional "interpretations" that probably would have amazed the Framers.

In recent decades, such judicial activism has come most conspicuously from the liberal side, in decisions such as Roe vs. Wade (1973) and its precursor, Griswold vs. Connecticut (1965), which cited "emanations" and "penumbras" from various constitutional provisions to come up with a right for married couples to use contraception. But conservatives have also taken liberties with the Constitution's text and original intent, especially in the recent line of decisions invoking emanations and penumbras from the 10th and 11th amendments to void acts of Congress that authorize individuals to sue states for monetary damages.

Moreover, some decisions that seemed at first to flout original intent have since achieved broad acceptance. Brown vs. Board of Education, which desegregated the public schools, is almost universally applauded for breathing life into a 14th Amendment guarantee-"the equal protection of the laws"-that had long seemed an empty promise. But when it came down in 1954, Brown drew criticism from constitutional scholars who noted that the Congress that drafted the 14th Amendment had also segregated the District of Columbia schools. Griswold is now politically unassailable. And even Roe, a constitutional interpretation so far-fetched that it offended even some supporters of liberal abortion laws-while galvanizing a furious anti-abortion movement-has become entrenched to the point that (polls suggest) most voters do not want it overruled.

In short, consistent adherents to the Constitution's text and original intent are a vanishing breed, and the notion that constitutional rights evolve over time is woven deep into our body of constitutional precedent. Nor is it unreasonable to find in this body of precedent, and in the underlying principles of liberty and equality, some measure of protection for gay rights. Although the Supreme Court ruled (wrongly, in my view) in Bowers vs. Hardwick in 1986 that states could constitutionally punish homosexual acts, it sounded a very different note 10 years later, in Romer vs. Evans. Striking down a Colorado ballot initiative that would have prohibited the state and its localities from outlawing discrimination against homosexuals, the Court asserted that states "cannot make [homosexuals] unequal to everyone else," and cannot "deem a class of persons a stranger to its laws."

Some scholars plausibly argue that the Court should sweep away all forms of official discrimination against homosexuals-a traditionally powerless minority victimized by majoritarian prejudice-as violating equal protection of the laws. And the "freedom to marry has long been recognized as one of the vital personal rights," as the Supreme Court held in 1967 (in Loving vs. Virginia) in striking down laws against interracial marriages.

So why let judicial restraint get in the way of fairness for gay couples? And given that the U.S. Supreme Court does not seem ready to bite the bullet, why shouldn't those of us who want committed same-sex couples to have the benefits of marriage applaud the Vermont Supreme Court for trying to use its own constitution to make it happen?

One reason is that the Vermont Constitution is a less plausible vehicle for gay rights than the federal equal protection clause, which the Supreme Court has prudently avoided pushing to the limits of its logic. A second reason is the risk of feeding the popular backlash that already threatens to retard the public's growing acceptance of legal protections for gay couples. A more fundamental reason is that-absent violations of clearly enumerated constitutional rights-a decent respect for our democratic traditions, and for the opinions of our citizens, should ordinarily lead courts to defer to popularly enacted laws that reflect deeply felt values.

Chief Justice Amestoy alluded to the risk of backlash in rejecting Justice Denise Johnson's forceful argument that the Vermont court should simply order the state to issue marriage licenses to same-sex couples: It was "instructive," Amestoy noted, that the voters of Hawaii had amended their state constitution in 1998 to block a similar move by the Hawaii Supreme Court, which had indicated in 1993 that it was preparing to order the state to recognize gay marriages. The 1993 decision-and the concern that other states might have to recognize gay marriages performed in Hawaii-also provoked 30 states and Congress to pass anti-gay-marriage laws. (Californians will vote on March 7 whether to join them.)

The Vermont court can hope for a happier ending, Amestoy suggested, by aiming for a "catalytic" effect on the "system of democratic deliberation." Thus did he leave it to the legislature to devise a remedy, while suggesting the less controversial option of "domestic partnership" as an alternative to same-sex marriage.

Perhaps the legislature-now torn between those demanding full recognition of gay marriage and those calling for defiance of the court-will come to a reasonable compromise. But even if it does, I fear the court has gotten too far ahead of public opinion, at too great a potential cost, for too modest a benefit to gay couples.

A lot of people who are not homophobes, and who oppose job discrimination and other forms of bias against gay people, do not see the traditional law of marriage as discriminatory. They are not ready to accord same-sex couples the same status as husbands and wives. Many of them will (I believe) eventually come around to supporting marital benefits for gay couples. But will they be brought to that view sooner by a ruling that puts the brand of unconstitutionality on a revered tradition-and that seems less like a measured interpretation of constitutional text than a naked exercise of judicial power?

Stuart Taylor Jr. National Journal

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