GAY MARRIAGE? : Vermont must decide.

On December 21, 1999, the eve of the shortest day of the year, the Vermont Supreme Court handed down a ruling on the vexed matter of "gay marriage." Whether that ruling will cast as short a light on this issue as the winter solstice remains to be seen. The court rejected the claim of the gay plaintiffs that denying them a marriage license was a violation of Vermont law. On the other hand, it granted that same-sex couples were entitled to all the civil benefits extended to married households. Legislation to affirm these entitlements was left to the Vermont legislature. Whether one would encompass this protection under the label of "marriage"or under some category such as "domestic partnership"was not best decided by judicial fiat.

The ruling has been hailed and condemned by both sides of the gay-marriage issue. Gay advocates were gratified by the recognition of equal benefits but vowed to press for recognition of gay marriage. The Catholic bishop of Burlington, Kenneth Angell, regretted the ruling but took comfort in the fact that the court had not legalized gay marriage. Where does the Vermont ruling leave the national debate on gay marriage? I believe that the majority opinion, written by the Chief Justice Jeffrey L. Amestoy, is a model of judicial prudence worthy of national attention.

The plaintiffs argued that the purpose of marriage was to "protect and encourage the union of committed couples." The court rejected that broad construction of "marriage." The chief justice began his opinion by noting that by common definition (Webster's Dictionary) "marriage" is the union of one man and one woman as man and wife. When Vermont law specifies that the town clerk may issue a license to either the "bride"or "groom" it is clear that the legislature had gender in mind.

It is far from clear that limiting marriage to opposite-sex couples violates the Legislature's "intent and spirit." Rather, the evidence demonstrates a clear legislative assumption that marriage under our statutory scheme consists of a union between a man and a woman.

Having rejected any claim to marriage under Vermont statutes, the court then turned to the constitutional question. Plaintiffs argued that refusal to grant a marriage license violated their right to "common benefit and protection of the law guaranteed by Chapter I, article 7 of the Vermont Constitution." Denying access to a civil marriage license excludes couples from an array of legal benefits "incident to the marital relation": access to spouse's medical, life, and disability insurance, etc. On the basis of this "Common Benefit"clause in the Vermont Constitution, the court ruled that gay couples were entitled to the benefits "incident on the marital relation."

Will such a Solomonic slice across the gay-marriage issue become a national precedent? Perhaps, but one should recognize that it stems from the unique character of the Vermont Constitution. This point was elegantly detailed in the chief justice's opinion. The Vermont Constitution dates from 1777 when Vermont was an independent republic. The Vermont fundamental law has a cast not reflected in the U.S. Constitution. The "Common Benefits"provision contains striking language: "[G]overnment is, or ought to be, instituted for the common benefit, protection, and security of the people...and not for the particular emolument or advantage of any single man, family, or set of men...."

The majority opinion calls attention to the difference between the affirmative language of "common benefit"and the "equal protection" language of the Fourteenth Amendment of the U.S. Constitution. In the latter case, one seeks remedy against denial and discrimination; in the Vermont case one envisages a positive mandate of government to provide common benefits.

Justice Amestoy then offers some historical background to establish the spirit embedded in the Vermont Constitution. He notes that the American Revolution was not only a protest against British rule, it was also an internal protest against any "entrenched clique favored by birth or social connections." This powerful movement for "social equivalence" was, as historians have characterized it, "the revolution inside the revolution." The Vermont Constitution was "the most radical constitution of the revolution."

Given the positive thrust of the common-benefits language, it was not difficult for the court to conclude that gay couples should have the common benefits of "couples," as the constitution reads, "common benefits...are not for the particular...advantage of any single man, family, or set of men." The court stopped short of specifying the statutory language which would authorize specific kinds of "couples" ("sets of men") for a share in common benefits. "Marriage" is a statutory establishment of one sort of "couple" entitled to certain benefits. It need not be the only possible designation. The court noted that legally defined "domestic partnership" or "registered partnership"could instantiate the common benefits provisions. The choice of statutory language, "marriage" or "domestic partnership," was left to the proper statutory authority, the State Legislature. The court offered the proviso that if the Legislature fails to incorporate the intent of the Vermont Constitution into statute, the gay plaintiffs could return to the court for relief.

Associate Justice Denise Johnson dissented from the majority opinion on the ground that the court should have reached its own conclusion on the issue of "marriage" and granted injunctive relief to the plaintiffs. Johnson argued that the Court had "abdicated its constitutional duty to decide." Chief Justice Amestoy spent considerable effort in his opinion to counter his colleague's dissent: "[T]he dissenting opinion confuses decisiveness with wisdom and judicial authority with finality....No court has ever been more decisive than the United States Supreme Court in Dred Scott. Nor more wrong....[I]t was a profound understanding of law and the 'unruliness of the human condition' that prompted Abraham Lincoln to respond that the Court does not issue Holy Writ....[J]udical authority is not ultimate authority.

"It is certainly not the only repository of wisdom. When a democracy is in moral flux, courts may not have the best or the final answers. Judicial answers may be wrong. They may be counterproductive even if they are right. 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."

What would have been the outcome of the abortion debate had the U.S. Supreme Court operated under such a caveat, understanding the Court as a catalyst and participant in democratic deliberation along with the legislative bodies?

In the final paragraphs, the chief justice notes wistfully that in seeking marriage status, gay couples may (given divorce statistics) be expressing the triumph of "hope over experience."

Gay marriage in the eyes of its advocates presumably would express moral or cultural parity with traditional hetero-sexual marriage. Whether the law can or should deal with such "spiritual" concerns is doubtful. Personally, I think that the "domestic partnership" suggestion is appropriate. In fact, I believe that the law should move beyond homosexual or heterosexual "partnerships." Why should access to "common benefits" be based on a putative sexual connection? Two brothers or sisters, same- or opposite-sex couples who nonsexually enjoyed one another's companionship might well desire to act as domestic partners and accrue the appropriate benefits.

Vermont may have the most revolutionary constitution in the land; as applied in this case, it may offer wisdom even for the sexual revolution.

Dennis O'Brien is president emeritus of the University of Rochester. He lives in Vermont.