Gay marriage in Vermont


in Law, Politics

Brick building in Ottawa

It is encouraging to see that Vermont’s legislature has legalized gay marriage, overturning the veto of the Republican governor. That said, while this is good news for same-sex couples in the state, I do think it’s a bit awkward that the change happened due to legislation rather than litigation. As I see it, forbidding same-sex marriage is straightforward discrimination. As such, eliminating the discrimination is something that governments with constitutions that enshrine equality are both legally and morally bound to do. By doing so through legislation instead, they distort that position and suggest that same-sex marriage is a voluntary legal situation, rather than a natural consequence of interpreting the law on all marriage in a non-discriminatory way.

While ‘activist judges’ are a hot-button political issue, I do think it’s important to identify and recognize when decisions emerge inevitably from our existing laws and values, rather than pretending that they require some secondary approval in order to be valid.

On a tactical level, the consequences of this approach are less clear. On the one hand, it might serve as a mechanism to counter accusations that gay marriages are anti-democratic or the work of the aforementioned ‘activist’ judges. On the other hand, it may isolate the specific matter of gay marriage from the broader issue of equality under the law. Whereas a finding that any state permitting heterosexual marriage must permit homosexual marriage can be naturally extended to matters like health care and pension law, the narrower scope of enabling legislation seems like a less useful precedent.

{ 24 comments… read them below or add one }

BJ April 8, 2009 at 9:59 am

Perhaps you would be right if there were no constitutional amendments, but at that point the judge can no more enable gay marriage than they could rewrite the text of the state’s constitution. In my opinion, deflating the mock outrage over activist judges does much more damage to the case of anti-gay marriage groups than trying to make arguments based on civil liberties (which are unlikely to convince anyone in such groups).

For this reason, the goal of many gay marriage activists is to overturn the DOMA (Defense of Marriage Act) at the federal level, where there are no constitutional amendments hindering a judicial approach, and a relatively friendly legislature. Once that is overturned, it is much easier to also prevail in states without constitutional amendments, as well as convince business/health interest to implement de-facto civil unions.

Tantalus Prime April 8, 2009 at 11:42 am

I would agree with BJ, but will reiterate anyway

While I think your point is valid, the much more important thing here is that this was overturned by popular mandate. Public perception of homosexuality has changed so radically in the past decade that now it is not necessary to envoke the judicial process. This doesn’t stop the judciary from affirming that right at a later date, should the appropriate case come before them.

Another plus is that no one can blame this on “activist judges”, whatever the hell that means …

Vince April 8, 2009 at 3:36 pm

Leave it to Vermont and Iowa to be the most progressive states in the nation, shame on us here in California for passing Prop 9. Whether you call it Gay Marriage or Civil Union, the basic premise is that every person should have equal rights. It’s good to see that some states are progressing, I made a list on my site of the states I think will legalize Gay Marriage first:

Sarah April 8, 2009 at 6:24 pm

What BJ said. It’s a better political & legal strategy, as well as a rare example of politicians doing the right thing in defiance of majority public opinion.

R.K. April 9, 2009 at 12:38 pm

The whole notion of ‘activist judges’ is especially ironic if your discrimination viewpoint is accurate.

If so, the problem is that all the judges until now have failed to rule that the existing marriage laws are in fundamental conflict with the constitution. Ones who did wouldn’t be activists, they would just be making up for the laggards that came before them.

. April 9, 2009 at 10:07 pm
. April 10, 2009 at 12:13 am

Fake People Tell Fake Stories About The Threat Of Gay Marriage

Baratunde’s Posterous posted this unwonderful video produced by The National Organization for Marriage, describing it as “Fake People Tell Fake Stories About The Threat Of Gay Marriage.”

I don’t know if the people are fake or not [UPDATE: They are actors], but they are assholes. One woman whines plaintively, “My freedom will be taken away,” if gays are allowed to marry. What — her freedom to be intolerant?

. April 10, 2009 at 12:18 am

Gronstal blocks amendment to reverse Iowa marriage equality

Below is the text of Senator Gronstal’s response to Senate Minority Leader Paul McKinley of Chariton on April 6, 2009, the first day the Senate met after the unanimous decision by the Iowa Supreme Court to allow same sex couples to marry.


One of my daughters was in the workplace one day, and her particular workplace at that moment in time, there were a whole bunch of conservative, older men. And those guys were talking about gay marriage. They were talking about discussions going on across the country.

Any my daughter Kate, after listening for about 20 minutes, said to them: You guys dont understand. Youve already lost. My generation doesnt care.

I think I learned something from my daughter that day, when she said that. And Ive talked with other people about it and thats what I see, Senator McKinley. I see a bunch of people that merely want to profess their love for each other, and want state law to recognize that.

Is that so wrong? I dont think thats so wrong. As a matter of fact, last Friday night, I hugged my wife. You know Ive been married for 37 years. I hugged my wife. I felt like our love was just a little more meaningful last Friday night because thousands of other Iowa citizens could hug each other and have the state recognize their love for each other.

No, Senator McKinley, I will not co-sponsor a leadership bill with you.

oleh April 10, 2009 at 2:39 am

Like Tantalus Prime, I believe that legislation rather than litigation is the preferred route for establishing rights and fighting discrimination. Legislation requires the support of elected officials and reflects a wider support for the establishment of equal rights.

In any event Kudos to the Vermont legislature. I look forward to the day when same-sex marriage is no more an issue than inter-racial marriage (a major issue 50 years ago) or women’s right to vote, which was an issue a century ago.

Alex April 10, 2009 at 4:38 am

I wholeheartedly share Oleh’s vision. However, conservative religious pressure against same-sex marriage will persist or even increase. I find it sad that so many Christians focus on ‘nature’ or ‘procreation’ when discussing this topic, rather than the much more fundamental Christian principle of love. However, the real problem goes well beyond the definition of marriage: the lack of family values, the breaking-up of marriages in the absence of reconciliation, and the inability to make true and lasting commitments to each other.

Andrew C April 17, 2009 at 12:43 am

Same-sex marriage has been more of a battleground in the United States than in most other countries because marriage is more important to Americans than to people in other countries… In some European countries, gay and lesbian activists are asking instead: why, at this late date, should we buy into the oppressive, archaic institution of marriage? But in the United States many advocates say that only a marriage ring guarantees first-class citizenship. And they are right, because marriage matters more here than elsewhere.

Peter April 17, 2009 at 6:26 am

I’m skeptical about marriage being more valuable in America, and think that the ragging debate is the product of a sizable population of fundamentalist Christians and the self-identification of the U.S. as a Christian state. I agree with you; there are real rights at stake with marriage, from pension benefits, healthcare coverage, the default post-mortem allocation of assets, to something as stunningly simple as hospital policy that only allows “family” members to visit with an ill or dying person. However, I take the concern over being relegated to second-class citizens to be a criticism founded in identity politics. Specifically, that even if civil unions were implemented bestowing all of the same rights on same sex couples the utilization of a special term is, in and of itself, a disenfranchisement. So I think the point is somewhat confused, because it is not just that marriage is valuable as an institutionalized set of rights, but the fundamental claim against the state is a desire of a group to be recognized, accepted, and treated as equals for who they are, like all other fully enfranchised members of society are.

Milan April 17, 2009 at 8:04 am

On the matter of the NOM ad, I am quite perplexed at what the so-called doctor means. She says that she must “choose between her faith and her job.”

Gay marriage might do things like alter who gets to visit patients in the hospital, and who gets to make critical medical decisions for them. Is she saying that it contradicts her faith to let people’s same-sex partners do such things? If so, it’s hard not to conclude that she is a bigot and rather an ass.

. April 21, 2009 at 8:27 pm
. April 29, 2009 at 3:43 pm

New Hampshire Senate passes gay-marriage bill

CONCORD, New Hampshire (Reuters) – New Hampshire’s Senate passed a bill on Wednesday that would legalize same-sex marriage after an amendment was added that prohibits polygamy and marriage of family members, among other measures.

Governor John Lynch has not indicated if he will veto the bill, which passed the Senate by a vote of 13-11 and would make New Hampshire the fifth state in the nation where gay marriage is legal. But the Democrat has expressed opposition to it. It has already passed the state’s House of Representatives.

. May 5, 2009 at 3:16 pm

DC approves same-sex marriage law

Washington DC city council has voted to recognise same-sex marriages conducted in other US states.

Because Washington DC is not a state, the decision will now have to be approved by Congress before it can become law.

Four US states – Vermont, Connecticut, Massachusetts and Iowa – now permit gay marriage, and legislation to allow it is in progress in other states.

The resolution was passed in the council by 12 votes to one.

. May 6, 2009 at 4:51 pm

Maine becomes 5th state to allow same-sex marriage

By GLENN ADAMS – 48 minutes ago

AUGUSTA, Maine (AP) — Maine’s governor signed a freshly passed bill Wednesday approving gay marriage, making it the fifth state to approve the practice and moving New England closer to allowing it throughout the region.

New Hampshire legislators were also poised to send a gay marriage bill to their governor, who hasn’t indicated whether he’ll sign it. If he does, Rhode Island would be the region’s sole holdout.

Maine Gov. John Baldacci, a Democrat who hadn’t indicated how he would handle his state’s bill, quickly signed it.

“In the past, I opposed gay marriage while supporting the idea of civil unions,” Baldacci said in a statement read in his office. “I have come to believe that this is a question of fairness and of equal protection under the law, and that a civil union is not equal to civil marriage.”

. May 14, 2009 at 10:36 am

Peru ‘bar gay people from police’
By Dan Collyns
BBC News, Lima

Peru has announced that it will ban homosexuals from the police force for damaging the image of the institution.

The law is one of several new regulations put forward by the Interior Minister, Mercedes Cabanillas.

Ms Cabanillas is trying to shake up the institution, which has a dismal reputation among the general public.

But critics say some of the new laws, especially those regarding sexual orientation or activity, are unconstitutional.

. May 15, 2009 at 5:52 pm

California Supreme Court overturns gay marriage ban

In a 4-3 decision, the justices rule that people have a fundamental ‘right to marry’ the person of their choice and that gender restrictions violate the state Constitution’s equal protection guarantee
By Maura Dolan, Los Angeles Times Staff Writer
May 16, 2008
SAN FRANCISCO — — The California Supreme Court struck down the state’s ban on same-sex marriage Thursday in a broadly worded decision that would invalidate virtually any law that discriminates on the basis of sexual orientation.

The 4-3 ruling declared that the state Constitution protects a fundamental “right to marry” that extends equally to same-sex couples. It tossed a highly emotional issue into the election year while opening the way for tens of thousands of gay people to wed in California, starting as early as mid-June.

. May 26, 2009 at 3:06 pm

California high court upholds ban on same-sex marriage

Lisa Leff

SAN FRANCISCO — Associated Press, Tuesday, May. 26, 2009 02:32PM EDT

The California Supreme Court upheld a voter-approved ban on same-sex marriage Tuesday, but it also decided that the estimated 18,000 gay couples who tied the knot before the law took effect will stay wed.

Demonstrators outside the court yelled “shame on you”

The 6-1 decision written by Chief Justice Ron George rejected an argument by gay rights activists that the ban revised the California Constitution’s equal protection clause to such a dramatic degree that it first needed the Legislature’s approval.

The court said the Californians have a right, through the ballot box, to change their constitution.

“In a sense, petitioners’ and the attorney general’s complaint is that it is just too easy to amend the California Constitution through the initiative process. But it is not a proper function of this court to curtail that process; we are constitutionally bound to uphold it,” the ruling said.

. May 26, 2009 at 10:31 pm

Controversial Court Ruling Upholds Homosexual’s Right To Prance Around Demanding Attention And Being A Drama Queen

June 9, 2008 | Issue 44•24

HARTFORD, CT—The Connecticut Supreme Court on Monday upheld the right of individuals, regardless of sexual orientation, to engage in any number of “grandiose behaviors,” including, but not limited to, sashaying across the room “like a hussy, yelling ‘Oh my God!’ at the top of their lungs while hopping up and down, and generally acting like Miss Thing.”

The court ruled 5-2 in favor of the plaintiff in Carmichael v. State of Connecticut, a landmark case overturning a lower court’s decision against homosexual Michael Carmichael’s right to excessive theatrics. Writing for the majority, Chief Justice Chase T. Rogers argued that “although the loud and emotionally over-the-top behaviors of Mr. Carmichael may be considered annoying by the community standards established by both his heterosexual and homosexual peers, the question of whether or not an individual is acting overly queeny is not a matter for the law to determine.”

The ruling, which effectively affirms the right of all attention whores to make a complete spectacle of themselves, is already being contested by conservative groups and is expected to be appealed.

. May 27, 2009 at 11:00 am

Gay marriage activists fight on

By Peter Bowes
BBC News, Los Angeles

The decision by California’s Supreme Court to uphold a ban on same-sex marriage has been met with anger and disappointment by gay rights campaigners.

The ruling means homosexual couples in America’s most populous state will continue to be barred from tying the knot.

A crowd of protesters outside the San Francisco courthouse chanted “Shame on you, shame on you,” as the decision was announced.

“It is a real blow and it’s a real travesty of justice that a majority of voters can take away the rights on a minority,” says Marc Solomon from the gay rights group, Equality California.

. June 14, 2009 at 8:54 pm

In 2000, California voters approved a law banning same-sex marriage. It was a ballot initiative, like Prop 8, but just a law, not a constitutional amendment. And it was that law, Prop 22, that the California Supremes struck down in 2008, in their historic ruling legalizing same-sex marriage. And voters in 2000 approved Prop 22 by a 22-point margin. Eight years later the same voters approved Prop 8 by just four points. That’s an 18-point shift in favor of marriage equality in just eight years. That’s extraordinary progress. A loss is still a loss, and a loss sucks, but the trend is so strongly in our favor that we cannot lose hope. The anti-gay bigots know that they’re losing this debate, and it’s why they’re so hot to amend state constitutions now, while they still can, while they can still count on the votes of the old, the bigoted, and the easily manipulated.

But they are losing, and they know it.

Gay marriage will be back to the ballot box in California in 2010 or 2012, and voters are going to repeal Prop 8. Fundamental civil rights should not be subject to a popular vote, of course, and the California Supremes had an opportunity to reaffirm that ideal. They chose not to, they buckled, and so gays and lesbians, unlike other minority groups, face the challenge of securing our rights at the ballot box. That seems like a daunting prospect until you recall Prop 22 and compare its margin of victory to that of Prop 8. Again, we witnessed an 18-point shift in favor of gay marriage in California in just eight years. We can gain another two points in two. We just have to stay in the fight and constantly remind ourselves and each other—and Maggie Gallagher—that we are winning.

. January 12, 2010 at 8:04 am

America’s constitution, however, does not allow rights to be stripped from its citizens by majority vote. Specifically, the federal Supreme Court ruled in 1996 that any laws motivated by homophobia (or other bigotry) are unconstitutional. The motivation behind the Proposition 8 campaign thus becomes an issue. Its sponsors are among the witnesses, and their television advertisements and press releases may become evidence. Scholars will testify about homophobic discrimination.

They will also be cross-examined about other claims against gay marriage. One concerns the sanctity of tradition. But, as Mr Olson has argued, the fact that something has been custom in the past does not require it to remain that way–otherwise, America would still ban interracial marriage while maintaining segregated schools and debtors’ prisons.

Another question is whether or not marriage specifically serves procreation. America does not bar, say, infertile couples or old women from marrying. What, then, about the issue of whether gays can raise children? The two women plaintiffs happen to be bringing up four children in what appears to be an exemplary environment. What about the alleged harm to heterosexual marriages by homosexual ones? Psychologists or other experts would have to prove that straight couples are threatened by gay ones, which appears tough.

Ultimately, Mr Olson is trying to establish that conservatives should welcome, not fear, gay marriage. They revere marriage as a social institution, so the respect of gays for it should be a cause for celebration, not disgust. And there is the 14th amendment of the constitution, which guarantees Americans equal protection under the law. Mr Olson is reminding conservatives that denying homosexuals access to a basic institution of society would appear to violate equality, and thus the constitution.”

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