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Fifth Estate

Vermont Court Ruling: Did it Really Help Gays?

Vermont's decision on gay marriage

vote button essayIt has been called the most important case in the history of the Vermont Supreme Court -- a decision granting three homosexual couples rights that had previously belonged only to traditional married couples. When the case was decided in December, it generated controversy and publicity nationwide. A reading of the opinion, however, does not suggest an overwhelming momentousness. In fact, because of the clumsy, almost bizarre way that the court reached its decision, it is conceivable that even liberals will end up disowning the case.

Politicians, to be sure, did not need to read the case to grasp its importance. Gary Bauer, in one of the Republican debates, compared the holding to an act of terrorism. The rest of the Republican candidates, if not inclined to call the Vermont judges a bunch of wild-eyed terrorists, were nevertheless equally adamant that the decision was morally disastrous.

Democratic politicians had to be more circumspect, considering how the issue of gay marriage tends to divide gay constituencies from more traditional liberals. Hillary Clinton captured the tone perfectly, coming out in favor of equal benefits for gay couples under the law, but against the idea that marriage itself, as a state institution, should be expanded to include them. She and most of her fellow democratic politicians were unwilling to oppose the hastily drafted Defense of Marriage Act, which, among other things, defined marriage as exclusively a union between a man and a woman.

As it happens, Ms. Clinton's position was not far from the substance of the Vermont holding. The court found that the exclusion of gay couples from the benefits conferred by a marriage license - including insurance rights, property rights, and immunities in court proceedings - violated the broad language of the general benefits clause in the Vermont constitution. But it did not then simply order officials to issue marriage licenses to gay couples, a remedy well within its power. It instead threw the issue to the legislature, mandating that a law be written giving gay couples all of the benefits of a marriage license - without giving them the right to an actual marriage license.

That the court's holding captured perfectly the democratic mainstream position in a democratic state certainly makes the decision seem politically motivated -- an unseemly charge against any court. But a look at the way the court reached its conclusion may support this criticism. In fact, the court's legal analysis should be troublesome to all concerned.

The general benefits clause that the court was interpreting is a standard clause, found in many state constitutions, applied in accordance with federal equal protection law. This federal law has been the primary engine of civil rights. Over time, the U.S. Supreme Court has developed different standards for determining whether the law is being violated, depending on how the law classifies people.

A "suspect" class, under this law, is a class of people who have been discriminated against because of something they cannot change, such as their race. Due to progressive judicial decisions, a suspect class has become a protected class, which means that the government has a greater burden to justify discrimination against them. Classification by race or ethnicity brings "strict scrutiny" by the court.

At the other end of the spectrum, classification by wealth levels, or other economic factors, requires the government to show only a rational relationship between the law and the governmental aim, such as raising taxes on the rich.

Classification by sex (male or female) has been held to fall somewhere in between, and classification by sexual orientation (gay or straight), has historically been at the bottom of this spectrum - not a "suspect"' class at all, which means homosexuals have had practically no way to argue claims of bias. This was affirmed in 1986 when the U.S. Supreme Court, in Hardwick, upheld a Georgian anti-sodomy law.

What is startling about the Vermont court's decision is that it ignored these differing standards of scrutiny, standards that set all the court's own precedents on civil rights matters.

The court noted that the federal law, though routinely cited in Vermont cases, was not actually the law being applied.

One of the reasons for this, the court surmised, was that the classifications and different degrees of scrutiny were entirely too rigid. Rather, what the Vermont constitution called for, and what Vermont courts had long been applying, was a relatively uniform standard. The court said a classification must be "reasonably necessary" to accomplish the government's objective. Then, with this new uniform standard in hand, the court held that the classification that discriminated between same-sex and different-sex couples was not reasonably necessary to the government's aims, and was thus unconstitutional.

It's difficult to imagine who, other than the plaintiffs, could be truly happy with this opinion. Cultural conservatives, of course, disdain the result. But even more disturbing than the result, from their standpoint, is the undisciplined way in which the court got there. The court said all the right things, calling for "judicial restraint and respect for tradition," but it showed little respect for its own words. Instead it labeled its own precedents too rigid, and set off on a course that has all the appearance of freewheeling activism.

For the court to complain about rigidity is a dead giveaway for conservatives. While rigid might sound like a bad thing, it is in fact flexibility or vagueness in law that conservatives fear because it is so often a license for judges to make the law up as they go along. It is interesting to see what the Vermont court, anticipating the criticism, proposed for a structure to replace the equal protection framework that it jettisoned. It said that "[w]hat keeps [the judge's decision] grounded and objective, and not based upon the private sensitivities or values of individual judges, is that in assessing the relative weights of competing interests courts must look to the history and 'traditions from which [the state] developed' as well as those 'from which it broke,' and not to merely personal notions."

But how does a judge determine which traditions are current and which are obsolete? Can it possibly be done without employing "merely personal notions?" The court did not provide the answer, but in any event, the question of tradition has everything to do with whether one thinks that denying gay couples a marriage license is unconstitutional.

The court provided itself a little cover from charges of activism by passing the case to the legislature. But it is only the appearance of democratic process, and one wishes the legislature would balk at this intrusion into its affairs. This would provide some embarrassment to the court, as the plaintiffs would again show up seeking their remedy. But the court knows, indeed cited in its opinion, that the legislature has passed several bills expanding the rights of homosexual couples. That the two bodies are hopscotching with each other only strengthens the contention that the court is acting as a super-legislature.

But if conservatives decry the decision, liberals themselves have little reason to really cheer it. They won a skirmish here, but at what cost? For one thing, the court's holding could prove a sweeping victory for economic interests.

By holding that the Vermont constitution recognizes, not a spectrum, but just one uniform standard in its law of equal protection, the court has in effect equated classification by race and other fundamental attributes to classification by wealth. Now, accusations of race bias or economic bias must be weighed equally under Vermont law. It's a bizarre result that brings to mind turn-of-the century rulings in which all sorts of social legislation - on workers rights, civil rights, and health and safety concerns -- was overturned by courts because these reforms would interfere with the rights of businesses, because of property and contract rights. While it poses no immediate threat, given the liberal make-up of this court, it could prove a dangerous precedent down the road for liberals.

More significantly, the Vermont court has probably forfeited its best chance of influencing the U.S. Supreme Court (and other state courts) on the issue of homosexual rights. If it had spoken the language of equal protection, holding that homosexuals were a suspect class under the Vermont constitution requiring the government to meet a higher burden, the nation's legal and political debate would have been altered in a far more significant way.

Law is a field that thrives on well-worded phrases, and well-argued positions. A strong opinion here would have found its way into every other court in the nation, including the Supreme Court.

Instead, because the court has muddled the issue, it's a legal dead-end.

A former lawyer, Jonathan Tweedy now makes a living writing about law and playing the piano in New York City.

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