Separate but equal.
When Nina Beck asked Stacy Jolles to marry her eight years ago, the gesture seemed as futile as it was romantic. "At the time it seemed a rhetorical question," Beck says. "We would have loved to do it, but let's be realistic."
Now, thanks to a decision in a lawsuit filed by Beck and Jolles along with another lesbian couple and a gay couple, that reality is closer than ever before. In a landmark ruling, the Vermont supreme court said December 20 that gay and lesbian couples deserve exactly the same protections and privileges that heterosexual married couples receive under state law and ordered the state legislature to change the law to provide those benefits.
"Let's celebrate that we've accomplished something," says Mary Bonauto, an attorney for Gay and Lesbian Advocates and Defenders, a Boston-based legal group that helped represent the couples. "It's a legal and cultural milestone. For the first time a state supreme court has recognized that gay couples exist and have the same needs for legal protections as other couples."
The ruling revives the national debate about gay marriage and ensures that this year will see not only a battle within Vermont to determine how the court's mandate will be carried out but also the ripple effect the decision has had across the country. The case quickly began to play a role in the fight over California's antimarriage ballot measure, which will go before voters in March, and in campaigns of many of the presidential candidates.
The justices heard arguments in the case brought by Beck and Jolles, Lois Farnham and Holly Puterbaugh, and Stan Baker and Peter Harrigan 13 months earlier, after deciding that a lower court had improperly dismissed the couples' 1997 lawsuit. While the court could have simply legalized same-sex marriage (as Justice Denise Johnson argued in a dissenting opinion), the justices did reserve the right to determine whether the remedy the legislature chooses really provides full protection to gay and lesbian couples. Moreover, in the majority opinion, signed by Chief Justice Jeffrey Amestoy, a former state attorney general, the court went out of its way to dismiss the state's defense in the case and to underscore the validity of gay relationships.
"The challenge for future generations will be to define what is most essentially human," the court ruled. "The extension of the Common Benefits Clause [which provides married couples with legal privileges] to acknowledge plaintiffs as Vermonters who seek nothing more, nor less, than legal protection and security for their avowed commitment to an intimate and lasting human relationship is simply, when all is said and done, a recognition of our common humanity."
"There's a lot of wonderful language in this opinion," Bonauto says. "The state has said it's going to sanction these human' relationships. No court has said that quite so boldly."
Exactly how the state will sanction the relationships is the challenge facing Vermont activists. "The next step here is for our lawyers and all of the people working on this issue in the state to help our legislators understand that we should be given civil marriage and not something short of that," Jolles says.
That promises to be an uphill battle. Democratic governor Howard Dean quickly signaled that he would prefer domestic-partnership legislation, saying same-sex marriage "makes me uncomfortable, the same as everybody else." Other politicians said political reality may make domestic-partnership legislation the only palatable approach. Republican state senator Vince Illuzzi has already introduced such legislation. So far no one has suggested amending the state constitution to void the court ruling. In fact, there has been remarkably little antigay backlash in the state, even when the issue of gay marriage first arose. "Certainly, every antimarriage bill introduced in Vermont has been DOA," Bonauto says.
For many outside the state, the ruling provides a crash course in Vermont politics. While many people think of the state as a conservative backwater populated largely by cows and taciturn Yankees, Vermont is in fact one of the most progressive states in the country for gay rights. In addition to having a law providing statewide nondiscrimination protections, Vermont also extends domestic-partner benefits to its government workers. In addition, the state legislature went so far as to codify into law a ruling allowing second-parent adoption for gay and lesbian couples.
"Vermont is a place of great tolerance," says Chris Tebbetts, a member of Vermont Freedom to Marry Task Force, a coalition promoting same-sex unions. "In the religious community and the general community, people are going out of their way to let us know that we deserve something. Not many people in Vermont are willing to be homophobic, and that's encouraging."
Still, that does not mean that convincing lawmakers to extend marriage to gays and lesbians will be an easy job, particularly in the short period of time activists have. The legislature is scheduled to be in session from January to May. "One of our major tasks here is to let people know that it's very easy for domestic partnership to sound like a perfect compromise, but if you're talking about true equality, a compromise doesn't get you there," Tebbetts says.
Indeed, a domestic-partnership measure, while a tremendous advance for gay rights, would smack of the "separate but equal" reasoning that supported racial segregation. "Separate but equal is for good reasons disparaged in this country," Bonauto says. "Right now there's a lot of room for improvement for same-sex couples, but if we wind up with separate but equal, we'll knock on the court's door."
Meanwhile, national candidates immediately weighed in on the controversial decision. Both Democratic presidential candidates, Vice President Al Gore and Bill Bradley, restated their support for some form of domestic partnership to protect gay couples and their opposition to same-sex marriage. Republican presidential contenders expressed dismay at the court ruling. "It was a flagrant example of judicial activism," publishing heir Steve Forbes said. "The court overstepped its bounds." Gary Bauer, who has taken a leave of absence from the Family Research Council, a religious-right think tank, to run for president, said the decision is "an unmitigated disaster for the American family."
The ruling has also had a ripple effect in California, where voters will consider the Knight initiative, a measure to ban recognition of same-sex marriages, in March. Mike Marshall, campaign manager for No on Knight, the organization battling the measure, says the Vermont ruling will undermine arguments from the measure's supporters.
"They've been playing up Vermont as a threat, and the Vermont supreme court has ruled, and gays and lesbians are still not allowed to be married," Marshall says. Moreover, he adds, "it's important to voters in California that a court has said that gays and lesbians face discrimination on a daily basis and that that has to end."
Bonauto says the Vermont ruling was possible in large part because of the groundwork of attorneys for two lesbian couples and a gay couple in Hawaii who had challenged that state's ban on same-sex marriage. On December 9 the Hawaii supreme court finally dismissed that case, ruling that the state legislature's revision of the state constitution makes further legal arguments moot.
"The Hawaii courts laid a foundation, and the Vermont case has built a beautiful tower upon it," says Evan Wolfson, an attorney for Lambda Legal Defense and Education Fund who was cocounsel on the Hawaii case. "No civil rights movement is going to be won or lost by one victory or defeat."
Bonauto says the Vermont ruling will provide legal ammunition for activists fighting battles on a wide range of fronts. "This should be raised by advocates in every single case that involves same-sex couples and their children, whether you're talking about seeking adoption rights, second-parent adoption, custody of your own child, or domestic-partnership rights," she says.
Indeed, it was because of their first son, Noah, who has since died, that Beck and Jolles first agreed to become plaintiffs in the case. They were able to celebrate the victory with their 1-month-old son, Seth. "We got involved because we wanted to protect our kids," Jolles says. "We wanted our child to grow up knowing his parents were married. Our ultimate goal was to have him grow up in a world where we would have all the rights and protections that any parents would have."
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|Title Annotation:||victory for gay marriage in Vermont|
|Publication:||The Advocate (The national gay & lesbian newsmagazine)|
|Date:||Feb 1, 2000|
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