Originally appeared January 3, 2000, in the author's syndicated column, "OutRight," before the Vermont legislature's enactment of a bill providing for "civil unions."
Some will say the Vermont Supreme Court has freed a few of us at last. It might be more appropriate to say it has bound us at last. Further, in determining that gay couples must be treated legally the same as straight couples, the Vermont court has lighted a path to equality that emphasizes gays' similarity to straight Americans, avoids civil-rights dogma, and reinforces the primacy of marriage. That's not a bad day's work for a court that sits in a state with about as many people as Memphis.
Before we get too excited, however, it's important to note what didn't happen in Baker v. State. The Vermont court didn't require that state to recognize same-sex "marriages." The state has to give a gay couple the same rights and obligations as a married straight couple, but the state doesn't have to call it marriage.
Indeed, the state doesn't have to do anything right away. Vermont now has a "reasonable period of time" to weigh its choices - during which an effort might be made to override the court's opinion by amending the state constitution, as happened in Hawaii. For complex reasons beyond the scope of this column, it's also doubtful other states would have to recognize a Vermont-sanctioned gay relationship whatever it's called.
Finally, because of its reliance on an uncommon provision of the state constitution, the opinion will have little immediate precedential value in other state or federal courts. So Dorothy, you're still in Kansas.
Yet the Vermont opinion marks important progress in thinking about gay equality - progress that goes beyond both homophobic prejudices and stale civil-rights ideology.
The gay civil rights movement focuses on achieving civil rights, but has not much considered corresponding civil obligations. Marriage is not so lopsided. To be sure, it offers a host of advantages, ranging from health benefits to inheritance rights. But it imposes a concomitant obligation to care for the other participant, even after the relationship ends. As the Vermont court said, marriage offers "the right to receive, and the obligation to provide, spousal support, maintenance, and property division in the event of separation or divorce."
Most domestic partners laws in the country provide a nice portion of legal right (like health benefits) but require little more than signing a document. No wonder no one thinks of domestic partnerships like a real marriage.
Vermont's state-sanctioned same-sex relationships, whether called marriages or domestic partnerships, will be very different. They will grant hefty privileges and charge a hefty price - the same as any marriage. That's a first. It means we're getting some balance in the law.
The Vermont court's rationale for its result is also instructive. The court emphasized that "the marital exclusion treats persons who are similarly situated for purposes of the law, differently." Gay people, the court is saying, are like straight people in all relevant senses. So the law can't treat them differently.
This simple conclusion gives the back of a hand to any notion that gays are significantly different from mainstream America - whether that notion comes from the religious right or from the progressive left. We were successful in Vermont because the court saw the importance of our similarity, not the centrality of our difference.
The Vermont court also eschewed the reliance on feminist theory found in many gay-rights decisions and commonly espoused in the gay civil rights movement. The court repudiated the idea that the marital exclusion is just another form of sex discrimination (as the Hawaii Supreme Court concluded), for example. It found no evidence that "the authors of the marriage laws excluded same-sex couples because of incorrect and discriminatory assumptions about gender roles or anxiety about gender-role confusion."
In other words, it is possible for the law to treat men and women "equally" - as by prohibiting both to marry members of their own sex - and yet still single out gays for discrimination. Thus, the Vermont court showed that an approach to gay equality, at least in some cases, need not be tethered to feminism.
Similarly, the court rejected an approach that would treat gays as a special protected class under the law. Under the protected-class approach favored by the civil-rights establishment, courts aggressively overturn laws disadvantaging the class. In this case, the Vermont court conceptualized marriage discrimination as fencing gays out of an important institution. Thus, the court reaffirmed the importance of social inclusion without obsessing about gays' beleaguered status as a minority.
Further, the Vermont court achieved its historic result without undermining marriage's privileged position as the primary means by which our society encourages stable, committed human coupling. It's clear, for example, that nothing in the opinion commands the Vermont legislature to create a domestic partners system for opposite-sex couples who want to shack up but don't want to commit to marriage. And nothing in the opinion opens marriage to groupings of three, four, or five people or to connubial bestiality.
Finally, the Vermont court models a sensible, incremental approach to major social reform. The opinion points to the long list of legislative changes in the state - eradicating sodomy laws, adopting anti-discrimination statutes, protecting adoption rights, etc. - that render senseless the continued resistance to equality in the area of marriage. Those changes came serially, not all at once. One change laid the groundwork for the next.
Similarly, gay "marriage" will now be the law in one state, not all, allowing the rest of the country time to adjust. We may still be in Kansas, but Topeka won't be quite the same.