OP-ED The Truth of the Matter

Author: Murray Dry

After the Vermont legislature enacted the gay marriage bill into law last week, over Governor Jim Douglas's veto, news reports described Vermont as the fourth state to achieve this task, after Massachusetts, Connecticut and Iowa. Vermont actually deserves more credit than that, since every other state that now has gay marriage achieved that result through its state courts' interpretation of their state constitutions. Vermont did it the right way, because the constitutional arguments that take the decision on gay marriage out of the political process are as problematic as the constitutional arguments that took the abortion decision largely out of the hands of the electorate. Justice Ruth Bader Ginsburg, the foremost advocate of women's rights, acknowledged that the Court went too far in Roe v. Wade in an interview she gave in October of 2008. Her point was that legislatures also have a role to play in defining civil rights.

The Vermont Supreme Court decided, in Baker v. State (1999), that the state constitution's "common benefits" clause required that same-sex couples receive the same benefits from the state as married couples. The court left it to the legislature to decide on marriage or civil unions. The legislature, after an emotional debate in both houses similar to the one that took place recently, decided on civil unions, and Governor Howard Dean signed the bill. Ten years after the court decision, the legislature, after calling hearings on the issue, decided to bring a bill for same-sex marriage to the floor. The bill passed by a substantial margin in the senate and a margin just under two-thirds in the house. After the Governor vetoed the bill, the House mustered the necessary votes to override the veto, 100-49.

As a result of such action, the issue is not likely to divide the state as it would have if the court had interpreted the state constitution to require gay marriage. Chief Justice Jeffrey Amestoy, who wrote the court opinion in Baker v. State, had served as the state's attorney general and did not want Vermont to become another Hawaii, where the state court's decision was overturned by a constitutional amendment, as California's supreme court decision has been overturned by a constitutional referendum.

The Campus, in its editorial last week, called this a "bittersweet victory," criticizing the governor for his "blatant disregard for civil rights and public opinion." And my colleague, Professor of Russian Kevin Moss, likened the governor's veto to Governor George Wallace's "standing in the school house door" to prevent desegregation of the public schools in Alabama.

While I thought, and hoped, that the governor, who did not favor same sex marriage, would simply let the bill pass into law without his signature, he decided that the issue was important enough for him to vote his conscience and veto the bill. He surely did not veto the bill to win political support. The Campus does not mean to say that the governor should follow public opinion when he decides what bills to veto. So the serious charge, which both the Campus editors and my colleague lodge against the governor, is that the bill supports civil rights and to veto it was the equivalent of supporting the racist policy of racial segregation.

The reason that legislatures have a role to play in defining civil rights is that neither our federal nor our state constitution defines rights in detail, thus necessitating interpretation. The broader the judicial interpretation, the narrower the range for democratic self-government. For example, if there is a draft in the future, only males will be called up, not females, since combat restrictions remain in place for women. That may or may not be sound policy, but the Constitution does not forbid it and should not be interpreted to forbid it. Likewise with the military's "don't ask, don't tell" policy on gays in the military. The policy may no longer be sound, but that does not mean that courts should tell generals about "unit cohesion."

The analogy between race and sexual orientation that is used to attack traditional marriage laws fails to acknowledge the distinctiveness of the legacy of race-based slavery. The natural equality of rights of our Declaration of Independence suggests a color-blind Constitution; it does not necessarily suggest that there is no place for classifications based on sex or sexual orientation. There has been no United States Supreme Court decision on same-sex marriage because the advocates rightly estimate that the Court would decide against them and they do not want that precedent.

The strongest argument my colleague makes in his essay last week is "Civil rights are not a zero sum game: recognizing my rights will not deprive you of yours."

He may be right, and because I can appreciate the case that he and someone like Andrew Sullivan make for allowing gays to marry, I am pleased with the Vermont decision. But the opponents of gay marriage are not bigots and they have legitimate concerns. These concerns involve the optimal conditions for child rearing. The strongest case for retaining the traditional definition of marriage is to allow the body politic to affirm its preference for having a child raised by a mother and a father, rather than by two mothers or two fathers. Once marriage is redefined, as it now is in Vermont and in three other states, public authorities there will not be able to express any preference for having children raised by a heterosexual couple.

It's important for self-government in America that judges appointed for life do not take every controversial question regarding civil rights completely out of the political process. So I come back to where I started: three cheers for Vermont, the first state to get to gay marriage the right way.