That government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community, and not for the particular emolument or advantage of any single person, family, or set of persons, who are a part only of that community; and that the community hath an indubitable, unalienable, and indefeasible right, to reform or alter government, in such manner as shall be, by that community, judged most conducive to the public weal.
- Art. VII, Vermont Constitution
Though the Hawaii Supreme Court put the state to the test, the Vermont Supreme Court was the first state court to make a final judgment in support of the rights of same sex couples challenging state marriage laws. As discussed in Civil Wars: A Battle for Gay Marriage* by David Moats, the lawsuit was carefully tied to state practice. A federal claim, especially in the age of Bowers v. Hardwick (the state ruling was handed down in 1999), would be trouble. But, state practice was different, including given anti-hate crime legislation and recent judicial and legislative support for same sex adoption rights. As the state supreme court ultimately noted, the last one belied the need of limiting marriage to different sex couples.
Vermont also has a libertarian side, if one with something of a conservative flavor, present as far back as its origins -- it was the first place slavery was abolished and the state had universal male suffrage way back in the 18th Century. The ability of liberal Republicanism (shown by Sen. Jeffords) to continue to thrive benefited the cause of same sex marriage, down to the former Republican attorney general who wrote the majority opinion in Baker v. Vermont, a Republican more in the shade of David Souter (NH) than many we have seen of late. The fact it is not simply liberal is suggested by a remark Sen. Leahy made during the Kagan hearings about how the state's gun laws amount to a few regulations to give animals something of a fighting chance.
And, this was seen in its jurisprudence as well. A few years before the marriage ruling, the Vermont Supreme Court provided a liberal reading of an adoption statute, making it one of the first states to expressly allow same sex (second parent) adoption. It was one of the states that held for equalized funding of school districts. And, the "common benefits" provision was applied generally, even to economic legislation. In fact, two judges were wary that the ruling here opened up more careful review of such legislation, the concurrence particularly desiring to provide some limiting principle via application heightened scrutiny of suspect classes, including by sexual orientation.
[The majority denied that it was not given special concern to the interests in question, but its balancing did appear to have a potentially broad reach, depending on how it was applied. This is comparable to Casey and Lawrence, which had some open-ended language that their authors might not intend to be taken as far as some wish.]
The focus on common benefits was a strategic move not without cost. It helped the majority (unanimous as to requiring some relief) to focus not on marriage but the benefits of marriage:
The issue before the Court, moreover, does not turn on the religious or moral debate over intimate same-sex relationships, but rather on the statutory and constitutional basis for the exclusion of same-sex couples from the secular benefits and protections offered married couples.
This is what makes the Prop 8 case somewhat different -- California provides nearly all the same benefits to those with "domestic partnerships," the issue largely focusing on the term "marriage." So, when the court here gave the state the option to do something similar (though "civil union" was chosen, since the other term felt cheap to many gays and lesbians, like "domestic help") it was clearly a large state. I myself thought it would not be horrible if a similar path was allowed by the Massachusetts Supreme Court, which also gave the state some time to properly respond to its same sex marriage ruling.
But, it rejected such a path the next year, and I'm not sure if its privacy / substantive due process approach matters on the point. The "stigma of exclusion" would deny common benefits as well. "Civil unions" are not "marriages" so Vermont citizens who wished to move to another jurisdiction that left open same sex "marriages" would not have the same benefits. Social understanding is a type of benefit too. Could the state give only some the label "not guilty" and say that it's fine since the state itself did not deny benefits to those without it? I'm not sure how the state handled civil contracts that favored "married" couples but that too would be an issue.
Overall, studies (and common sense) showed the two are not just different and equal, as Gov. Dean argued. This is one reason the state eventually passed a same sex marriage law. But, obviously, it still was a major advancement, as the leading lawyers (disappointed with the ruling all the same) had to admit. The logic of letting the legislature find its own way to provide relief -- see again the Massachusetts Supreme Court -- also is apparent. It is harder to totally defend the result as truly equal as again noted by that court as well. But, such is the nature of the judicial process -- perfection is not usually in the cards.
The book provides a page turning account of the battle for same sex marriage in Vermont, ending its story in mid-2003, before the Massachusetts ruling was handed down but after Lawrence v. Texas. It is written by the editorial page editor of a Vermont paper that was on the side of marriage equality, including civil unions. We do hear about those from the other side, including the "eloquent" testimony of a bishop. This last bit rubbed me the wrong way somewhat since the "eloquence" was in promotion of bigotry. No mention about the bishop speaking for a Catholic legislator who voted for the bill and then could not go to her usual church without negative backlash.
The book provides some personal stories of people involved, including an older small town Republican farmer/legislator who was among the members of his party supporting civil unions and paying for it at election time. I would have liked a bit more about the opponents though, a bit more fleshing out of them and their backgrounds. Again, they were not totally ignored, and they were dealt with respectfully, but the story was focused on the other side. Since the vote was fairly close (less so for marriage, where there were votes to override a veto), this is somewhat unfortunate. Still, overall, I agree with the positive reviews.
It is also a telling look at a certain period of time, one that might seem out of date even only a decade later. An interesting contrast as well with California, which went a somewhat different way, in part because of the ease of popular referendum. Other stories might be ready to be told. What about Iowa, whose supreme court also unanimously protected the rights of same sex couples? Its experience is sure to be somewhat different, it coming a few years later itself relevant.
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* The partial dissent, which argued for an immediate remedy, noted that the law was sex discrimination, even if it mostly impacted gay and lesbians:
Thus, an individual's right to marry a person of the same sex is prohibited solely on the basis of sex, not on the basis of sexual orientation. Indeed, sexual orientation does not appear as a qualification for marriage under the marriage statutes. The State makes no inquiry into the sexual practices or identities of a couple seeking a license.
The basic point also was not the intent of the original law, but the current practice that continued same sex stereotyping. The dissent admitted that the original drafters of the law probably weren't thinking about gays and lesbians or the possibility of men marrying men etc. But, current practice was still discriminatory, sexual discrimination in marriage over time relevant as well.
The majority noted that unlike Loving v. Virgina, a glaring discriminatory purpose was not in place. ["Plaintiffs have not demonstrated that the exclusion of same-sex couples from the definition of marriage was intended to discriminate against women or lesbians and gay men, as racial segregation was designed to maintain the pernicious doctrine of white supremacy."] But, the marriage law still was written on the understanding of certain (stereotypical) sexual roles. Since childbearing wasn't the only reason for marriage, as noted by the majority, this included things other than that issue.
Call it "pernicious" or not, the net result is the same: discrimination by sex and against gays and lesbians. We need not berate our ancestors to determine that current practice (and to protect "the core value" of constitutional provisions, not bare original meaning, to cite the majority's test, noting they are judges, not historians) makes their choices unjust in today's world.