More From The Five Supreme Legislators
Once again the Five Supreme Legislators have spoken, in a decision that
goes beyond any holding by any state supreme court in the country. This
time the Court applied a constitutional provision in an imaginative way
that no one could have imagined even five years ago.
The Court's holding in "the Gay Marriage Case" was this: "the State
is constitutionally required to extend to same-sex couples the common benefits
and protections that flow from marriage under Vermont law." This was not
enough for Justice Denise Johnson, who held out for declaring that the
gay and lesbian plaintiffs not only had to enjoy equal benefits, but also
were constitutionally entitled to be "married".
The Court's decision is something of a mixed bag. First, four of the
five Justices stopped short, for the time being, of discovering in the
1777 Constitution the existence of a "right" for same-sex couples to marry.
This had an enormous practical effect, in that the decision does not invite
same-sex couples to visit Vermont, get married, and return to their home
states to demand the privileges and benefits of marriage. And unlike the
Brigham case of 1997, the Court thankfully did not attempt to dress this
decision up with falsified citations and bogus history.
Having said that, the Gay Marriage case exhibits all the other defects
of the Court of What's Happenin' Now jurisprudence. Chief among them is
the Court's eagerness to inject its own contemporary content into 18th
century phrases to mandate actions which were hitherto inconceivable. "The
challenge", writes Chief Justice Amestoy, "is to remain faithful to that
[18thcentury] historical ideal, while addressing contemporary issues that
the framers undoubtedly could never have imagined." This "challenge" is
an irresistible invitation to the Court to once again become a supreme
Historically, the clear purpose of the "common benefits" clause, as
it first appeared in the Virginia Bill of Rights (1776) and then in our
constitution of 1777, was to prevent a little gang of insiders from ripping
off the good people of the state. Of great concern to the framers was the
British example of hereditary privilege, and the possibility of favored
cronies getting the government to grant them lucrative monopolies in banking,
trade, shipping, toll bridges and the like.
The marriage law, however, was not some special deal to allow a politically
connected few to enjoy marriage with all its benefits, while everyone else
was forced to live in sin. It was always a general law: any man and a woman
could obtain a license to marry. To be faithful to the words and intent
of the constitution, the Court should have said "the law allows any man
to marry a willing woman, and any woman to marry a willing man, providing
they are of age, competent, unmarried, and not close relatives. This is
a benefit common for all. Just because these plaintiffs don't choose to
marry somebody of the opposite sex is their preference, but it's not a
cause for constitutional complaint. If our elected legislature decides
that some other collection of people should enjoy the privileges and benefits
'marriage', it will amend the law accordingly. Court adjourned."
The Court, however, shied from this politically incorrect construction.
Instead it explained how the legislature had undercut the rationale of
the marriage statute by approving lesbian adoptions. The Court went on
to announce a new law, in its opinion "premised on an appropriate and overriding
public interest", bearing "a just and reasonable relation to the governmental
objective", "recognizing our common humanity". The legislature was instructed
to fill in the details.
Until recently courts presumed that legislatures acted on a rational
basis, and a court could overturn their acts only when they flew in the
face of an explicit constitutional provision, or met the difficult test
of being arbitrary and capricious. Now our Five Supreme Legislators determine
not merely what is arbitrary and capricious, but what is appropriate, overriding,
just, reasonable, and humane. What if the legislature declines to adopt
a domestic partnership law satisfactory to the Court? Then, says the Chief
Justice darkly, the Gay Marriage plaintiffs can come back and reopen the
question of "marriage" that the Court seems to have settled.
This is a powerful threat. If the legislature doesn't act to the Court's
satisfaction, the Court is saying that it just might draw new and expanded
boundaries for "marriage" to meet its own ideas of good legislation.
There is little doubt but what a majority of our legislators lack the
will to defy this latest judicial mandate. They proved that when they reelected
the Brigham Three last spring. The Court, Justice Johnson excepted, may
be satisfied with a domestic partnership law for gays and lesbians, at
least until the common benefits provided in it are sought by same-sex heterosexual
couples, brothers and sisters, bisexual foursomes, polygamists, polyandrists,
and who knows what, all of whom may see the Green Mountain State as a new
land of opportunity for asserting our common humanity, with full enjoyment
of the privileges and benefits of marriage...
John McClaughry is the President of the Ethan Allen Institute.
This commentary is reprinted from the Ethan Allen Letter, January 2000.