A Decision to Delay

After the court had heard arguments and before it reached a decision, the editorial page of the Rutland Herald had not yet taken a definitive stand on the Baker case. Even so, we had written several editorials noting that the equal-rights claim brought by the plaintiffs seeking the right to marry was a strong one, and we were prepared to support a ruling on the plaintiffs' behalf.

When the ruling came down, a couple of important questions emerged. Is the right to marriage one of those fundamental rights that the government may not abridge? If so, what is the basis in the Constitution for that right?

It is noteworthy that although the court found in favor of the plaintiffs, the justices decided not to declare that the state's marriage statute must be interpreted to mean that same-sex couples had the right to marry. Instead, the court said that the Vermont legislature had a choice: it could either legalize gay marriage or create a “parallel institution,” some kind of domestic partnership. One of the questions that had divided the court—and one that presented itself to the press on December 20—was whether the justices had ducked their responsibilities by turning matters over to the legislature.

How, in a matter of several hours, does an editorial writer reach a conclusion on questions that required 13 months for the court to decide?

Felt Necessities

Supreme Court Justice Oliver Wendell Holmes, Jr., wrote in an 1870 law review article: “It is the merit of the common law that it decides the case first and the determines the principle afterwards.”¹

Holmes was the opposite of a dogmatist. His judgments were rooted in a pragmatic understanding of the law. If his experience gave him a sense of a just result, he then made sure that his judgment could be justified by the law. But as he wrote in one case, “[g]eneral propositions do not decide concrete cases.”⁴

In reading the Vermont Supreme Court's ruling in Baker on December 20, editorial writers had to make a judgment that day that took into account the historical moment, the principles involved in the case, and the question of whether the court had provided adequate legal justification for its decision. In fact, all the justices agreed to support the plaintiffs' claim. The differing remedies they proposed were a consequence of the differences in how they justified their findings.

The court's opinion, written by Chief Justice Jeffrey L. Amestoy, unanimously declared that the plaintiffs had the right to marry. But Justice Denise Johnson wrote a separate opinion, concurring in part and dissenting in part. She criticized the majority because of what she called its “novel and truncated remedy”⁵

But Amestoy was sensitive to the “felt necessities of the time,” and one of those necessities, in his view, was to subject the question of gay marriage to the political process. Thus he fashioned a ruling that justified the delay of turning the question over to the legislature. “Our mandate is predicated upon a fundamental respect for the ultimate source of constitutional authority, not a fear of decisiveness,” Amestoy wrote. That “ultimate source” was the people, as represented through the political system. The courts, he wrote, were “not the only repository of wisdom.”⁶

Amestoy then quoted a Harvard Law Review article by Cass Sunstein: “Courts do best by proceeding in a way that is catalytic rather than preclusive and that is closely attuned to the fact that courts are participants in the system of democratic deliberation.”⁷

Newspapers, too, are participants. It was apparent at the outset that Amestoy had created a political hurricane by placing the question of gay marriage within the public arena. But he avoided a different kind of potentially more damaging hurricane that would have occurred if the court, by judicial fiat, had instituted gay marriage against the will of a majority of the electorate. Whatever the outcome after legislative deliberation, Amestoy hoped that involving all three branches of government in finding a remedy would lend the outcome a higher degree of legitimacy.

For these reasons, the Herald's first editorial in response to the ruling praised Amestoy for both his boldness and his restraint. He was bold in clearly establishing that the right to marriage for same-sex couples was equal to that of heterosexual couples, but restrained in allowing a remedy to emerge from the political process rather than from his own pen.

As an editorial writer, I also based my assessment of the case on the “felt necessities of the time.” Those necessities included the struggle of gay and lesbian Americans over at least 30 years to emerge from the shadow of prejudice and discrimination. The legitimacy of their constitutional claim had brought them to a historical juncture where the political system could no longer ignore their demands. To discount their claim at that moment would have been to compound their historic injury.

When the question of gay marriage was framed as an issue of equal benefits rather than of sexual morality, it was possible to see discrimination on the basis of sexual orientation as comparable to discrimination based on race. “The issue before the Court …does not turn on the religious or moral debate over intimate same-sex relationships,” Amestoy wrote, “but rather on the statutory and constitutional basis for the exclusion of same-sex couples from the secular benefits and protections offered married couples.”⁸

There was no question in my mind that the Herald would support the court's ruling. As an editorial writer, I was grateful that Amestoy had provided a persuasive case. It took me several days, however, to evaluate the opinion of Justice Johnson, who dissented in part, and the argument of gay-rights activists that anything short of marriage was an unacceptable compromise.

As journalists considered what would happen next, they turned to the cast of characters who would have a role in determining the political outcome. The views of Governor Howard Dean were important, and Dean knew it. So he called a press conference at 11:00 a.m. on December 20, even before most anyone else had heard the results of the court's deliberations.

Although he could not have read the court's decision by 11:00 that morning, he called the ruling “a very elegant solution.” He was clearly thinking of political battles to come. “It's in the best interest of all Vermonters, gay and straight, to go forward with the domestic partnership act, and not the gay marriage act,” he said. “And that's what I intend to do.”

The press also consulted members of the legislature, who were only beginning to consider their strategy. Meanwhile, the lawyers who argued the case for the plaintiffs were in no mood for compromise. “It's quite clear that the only remedy that would comply with the court mandate is to allow these folks to marry,” said Beth Robinson, lawyer for the plaintiffs, at a press conference. “I don't think there's going to be any alternative to full equality short of full equality.” Many gay-rights activists were quick to deploy the phrase “separate but equal” as a way of saying that a domesticpartnership law would be the equivalent of Jim Crow, relegating same-sex couples to the back of the bus.

Intellectually, I agreed with Robinson's argument; but politically, I understood the need for Amestoy to instigate a political debate on the question of gay marriage. I did not find the “separate but equal” parallel to be valid. The justification for segregation contained in Plessy v. Ferguson was meant to disguise inequality. Establishment of civil unions was meant to disguise equality.

But gay-rights advocates had yet to determine whether they would support civil unions as a solution. The dissent authored by Justice Johnson underscored the question of whether compromise of a fundamental right was justified. “The basic guarantees of our Constitution are warrants for the here and now, and unless there is an overwhelming compelling reason, they are to be promptly fulfilled,”⁹

Amestoy, however, went to great pains to fashion a ruling that allowed him not to fulfill the constitutional guarantees promptly. He did so by basing the ruling on chapter 1, article 7, of the Vermont Constitution rather than on jurisprudence derived from the 14th Amendment of the U.S. Constitution. Article 7, known as the common benefits clause, establishes that the law cannot single out people or groups for special treatment, good or bad. It is an economic argument having to do with benefits. If the legislature could design an institution that provided the same rights, responsibilities, and benefits as marriage, it need not call that institution marriage.

In giving the legislature this opportunity, Amestoy recognized that the court, like the other branches of government, was a major player in the political process. As I pointed out in an editorial, the Vermont Constitution itself is a political document—and if the people of Vermont became sufficiently outraged by the actions of their state's supreme court, they had the power to change the Vermont Constitution so that same-sex couples would be denied the right to marriage. That is what had happened in Hawaii (Amestoy called this an “instructive” example).

Morality and Justice

Opposition to civil unions soon plunged Vermont into a sort of religious war, and the issue became a test for secular democracy and how far Vermonters were willing to extend the arena of tolerance.

I had not read John Rawls at the time, but the editorials I wrote on the question of private morality and public justice reflected a Rawlsian concept of secular democracy. The village green of a typical Vermont town was emblematic of my view. The green might be surrounded by a Congregational church, an Episcopal church, a Unitarian church, a Catholic church, a public library, and a tavern. Citizens would enter each place for their own personal reasons, and they would be free to fashion their own moral codes from what they learned inside. But when it came time to develop public policy, the citizens would have to emerge onto the village green and meet together to pass laws that a majority could support. No individual sect would have the authority to force its moral view on the others. Somehow, the separate groups would have to find common ground on which to act.

Or in Rawls's words: “In matters of constitutional essentials, as well as on questions of basic justice, we try to appeal only to principles and values each citizen can endorse.”¹¹

“What is a legislator to do?” I asked in a Herald editorial. “He is told by one speaker that according to God's law, expressed in the Bible, homosexuality is a sin and same-sex marriage would be an abomination. He is told by the next speaker that divine compassion demands that we treat everyone with respect and that gays and lesbians deserve the right to marry.” The editorial provided the following answer to its own rhetorical question:

Thus, the civil-unions issue touched on fundamental principles of American democracy: the separation of church and state, of private and public morality. What Rawls called a “comprehensive” view of morality—as embodied in religion, philosophy, or other moral teachings—is not the business of government. Liberal democracy, said Rawls, allows for “reasonable pluralism,” which means that those who view homosexuality as sinful have no grounds for forcing their opinion onto others. And the question of sin has no bearing on whether same-sex couples have a right to the benefits of marriage under the Vermont Constitution.

The Legislature

As the civil-unions bill worked its way through the Vermont legislature during the winter and spring of 2001, it was the job of journalists to report on the day's events with an eye toward what might happen in the future. How would the committee vote? What kind of opposition might mobilize? Would the state house of representatives be able to pass a civil-unions bill?

In addition to anticipating what might happen, I took it upon myself to suggest what should happen. It was plain to me that the constitution mandated passage of a civil-unions bill and that the compromise of creating civil unions rather than same-sex marriage was a reasonable one. It was also plain to me that further delay would serve no purpose.

Opponents of civil unions argued that the legislature need not rush to judgment, that it needed time to listen to the views of Vermonters, that a summer study commission might be in order. I took it as my role each step of the way to bolster the will of those in the legislature who understood that delay would only prolong the conflict that had riven the state. The legislators had heard voluminous testimony and understood the views of Vermonters. It was the legislature's responsibility to act.

During this debate, a question fundamental to the functioning of democracy took center stage: should legislators heed the will of the voters, or should they exercise independent judgment? Polls consistently showed that a slight majority of Vermonters opposed any form of legally sanctioned same-sex union. In fact, the fierce emotional reaction of opponents may have created an exaggerated sense of the extent of the opposition. Thus, as the legislature moved toward passage of a bill, the battle cry went up that legislators were not listening to the people. Legislators who favored civil unions argued that they would have to vote according to the dictates of conscience. In letters to the editor, some people went so far as to argue that legislators had no business following their consciences.

I turned that argument on its head. Politicians are frequently criticized for lacking conviction, for basing every move on the results of polls. So why should legislators take a reactive approach when it comes to civil unions? How does each citizen form his or her views on an issue? By first determining what the majority thinks and then following suit? Or does each citizen in a democracy have an obligation to think as an individual? It was time to deploy the famous quotation by eighteenth-century British politician Edmund Burke, from his speech to the electors of Bristol: “Your representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion.”¹³

Vermont legislators exercised their judgment and passed a civil-unions law. I felt it was important to recognize their courage, and after final house passage of the bill, I wrote in an editorial that “the conduct of the Legislature is reason to take heart. Legislators on both sides of the issue worked from conviction and maintained a respectful atmosphere …. Let us hope that Vermonters of diverse views appreciate and respect the courage and leadership provided by the Vermont Legislature on this trying question.”¹⁴

There were wounds within the body politic that would require healing. “The first step is for both sides to recognize and respect the legitimacy of the other,” I wrote in another editorial. “Hatred and belligerence were more visible among opponents, but it is not useful or accurate to tar most opponents as bigots. Though bigotry reared its head in ugly ways during the debate, reconciliation is possible when we recognize the sincerity of those for whom a personal moral view rather than hate was the motive.”¹⁵