Uncivil Unions

By Emmett Hogan | Monday, October 2, 2000

Forty years ago, few would have guessed that the small, rural, and traditional state of Vermont would hand gay rights activists their biggest legal victory to date. The Vermont of George Aiken was the archetype of Yankee conservatism: pious, stoic, and—above all—self-reliant. Throughout the years, seemingly forgotten by the rest of the country, Vermont clung to its traditional values, and gave no foretaste of the liberal paradise that it would become.

In recent years, however, leftist activists have found a home in the Green Mountain State, pulling its political sentiment forcefully in their direction. The liberal infusion isn't particularly discriminating: environmentalists, socialists, and gay activists have all found a home. The latter have fared particularly well of late. In April, Democratic Governor Howard Dean signed into law a bill to permit 'civil union'—marriage in all but name—between same-sex couples. Gays across the country heralded the decision as a watershed moment, one that portends a more tolerant society and greater acceptance of homosexuality.

Merits of the debate aside, the process by which the law came to be actualized has created some undesirable precedents.

In December 1999, the Vermont Supreme Court ruled that, under the 'Common Benefits' clause of the state constitution, Vermont could not institute any law that explicitly privileges one group over another. In particular, the ruling stated that denying homosexual couples the rights and benefits afforded to married heterosexual couples is unconstitutional. The court found current statutes to be deficient in providing these benefits equally, and thus charged the state legislature with refining the law to ensure that these benefits and privileges be granted to all, regardless of sexual orientation.

The Supreme Court assumed a quasi-legislative role, vacating the Vermont legislature's prerogative to enact laws. The Court issued an ultimatum to Vermont legislators: pass a law, or face the consequences. To underscore the threat, the Supreme Court kept the case open. The justices could return to it at any time and dole out punishment, should the legislature not meet the Court's demands. The strong-arm tactics set the stage for more legislation from the judiciary.

The state legislature, meanwhile, has been accused of ignoring its mandate. When the Supreme Court issued its ultimatum, several members of the Vermont House and Senate introduced legislation allowing for 'domestic partnerships' between two individuals of any sexual orientation—complying with the court's demands that they extend the benefits equally, but stopping short of gay marriage.

The legislators proceeded despite widespread disapproval of the Court's ruling and the legislature's actions. In January, a poll conducted by Research 2000 showed that only 38 percent of Vermonters agreed with the Court's decision. Only 13 percent of Vermonters supported the recognition of same-sex marriages, and just 28 percent supported the creation of 'civil unions.' What's more, a majority of Vermonters favored a constitutional amendment explicitly defining marriage as a union between a man and a woman.

Vermonters did not just register their outrage in polls. Throughout the winter, citizens attended town hall meetings across the state to voice their opinions on both the civil union legislation and the proposed constitutional amendment. The meetings shared a common tone: Vermonters opposed civil unions and supported the constitutional amendment defining marriage as a union between a man and a woman.

The legislature ignored the growing grassroots movement and continued their agenda. Civil union pressed on, over insurgent public opinion. In one telling utterance, majority leader Richard McCormack opined, 'Shouldn't the majority rule? Not in America!'

Naturally, the developments in Vermont will have repercussions beyond the Green Mountains. A future point of conflict will center on federal government's response to the existence of one lone state that permits homosexuals to join in quasi-marriage.

The point in question lies in the Full Faith and Credit Clause of the U.S. Constitution, the first part of which declares that all states must recognize the laws of all other states. This means that Vermont is likely to become the equivalent of a drive-thru for gay couples to get their benefits and run. Gay advocates argue that other states are constitutionally required to recognize such unions and grant all related benefits, effectively legalizing gay marriages in all states.

One challenge to the dissemination of gay unions, however, is the Defense of Marriage Act, signed by President Clinton in 1996. The act declares that states can decide for themselves how to define marriage. If New Hampshire, for example, chooses not to recognize gay marriages, a gay couple that receives benefits in Vermont would not east of the Connecticut River. Gay advocates claim that the Act violates the Full Faith and Credit Clause and are preparing for a Supreme Court showdown.

Theirs is a powerful argument. Most elements of the Constitution are limited to one degree or another; the Full Faith and Credit Clause, however, has been largely untouched. Should gay advocates press this point, and argue convincingly that the Defense of Marriage Act is unconstitutional, the Supreme Court may rule in their favor.

But there is a counter-argument. Although the Full Faith and Credit Clause is rarely circumscribed (mainly because it is seldom a point of contention), the Congress has acted to restrict its reach in important areas—areas that would support the Defense of Marriage Act. The second sentence of the clause provides that 'Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.'

Congressman Tom Campbell, a California Republican who supported the Defense of Marriage Act but who would support civil unions in his home state, argues that 'the purpose appears to be to allow Congress, if it chooses, to establish uniform rules for states to follow if it wanted other states to accord full faith and credit to their public acts, records, and judicial proceedings. But Congress was also given the opportunity to specify the 'effect' of such rules—or, one must assume, the failure to follow such rules.' This is an implicit acknowledgement of Congress's prerogative to set the terms by which states operate under the Full Faith and Credit Clause. Thus, if Congress were to stipulate that, on the issue of gay unions, one state did not have to recognize the laws of another state, that stipulation would be constitutional. Congress holds the trump card.

Indeed, this is precisely the manner in which the Full Faith and Credit Clause has historically been limited. In the past, Congress has decided that states do not have to recognize laws regulating divorces performed just over the border—in Congressman Campbell's words, 'quickie divorces.' If Congress can set the terms for state relations regarding divorce, it can logically set the terms for state relations regarding marriage.

Given this, it would seem that, should the Supreme Court hear a case on this issue, much will depend on the 'activism' of the justices themselves. If the Court decides to legislate, they will do great harm by overriding the Defense of Marriage Act. If they are more restrained, and seek merely to interpret the Constitution, the Defense of Marriage Act will most likely be upheld, and the states will decide for themselves whether to recognize civil unions.

The debate over civil unions has opened a Pandora's Box of bad precedents. The Vermont Supreme Court's decision in December 1999 serves as a particularly galling example of judicial interference in the field of policymaking. The signing of the civil unions law in April 2000 was accompanied by a complete disdain for public opinion. Unsurprisingly, voters are asserting themselves at the polls. A record number of Vermonters voted in state primary elections this year and ousted Republican legislators who supported the civil union law. State polls show that Governor Dean's favorability rating has plummeted from 63 percent in February to 41 percent, a decline that followed his signing civil unions into law.

Suddenly, the slogan 'Take Back Vermont' has appeared at roadsides, on houses, and on bumper stickers, as voters rebel against a political system they feel is out of touch.

But the future debate for the nation centers on what to do with the gay couples from Oregon or Louisiana who pop into Vermont for a quick civil union and then pop back out again.

When the time comes for the U.S. Supreme Court to rule, the justices would be wise to reflect on their role and their mandate. The list of dangerous precedents is long enough as it is.

Uncivil Unions

Article Tools

Related Articles