What the Vermont Court Has Wrought

What exactly had happened? This was the big question on December 20, when the Vermont supreme court issued its long-awaited ruling on same-sex "marriage" in Baker v. State. Three same-sex couples had claimed that Vermont's marriage law violated the Vermont constitution. The court did not rule on the marriage statute, but it commanded the legislature, in the name of the Vermont constitution and "our common humanity," to equalize benefits for same-sex couples.

Commentators flocked to characterize the opinion. Did the court still recognize the unique identity of marriage? Did it "give back" the issue to the legislature? Was this a classic example of judicial tyranny, or a courageous vindication of civil rights? Who won--the state? The plaintiffs? Everyone? Nobody?

These questions will reverberate across the legal and political landscape in coming months. But there is a more important question lurking in the court's opinion: What does the Vermont supreme court mean by marriage? True enough, the court's opinion does not overturn any statute. But it tells us a lot about what is at stake in the legal definition of marriage.

Our statutes, after all, embody an understanding of marriage. A marriage is formed by a man and a woman, equal yet different, who join their lives to form a family. Marriage aspires to permanence, fidelity, and children. Marriage law recognizes and supports these aspirations.

This view of marriage has been under intense attack for at least 50 years. Yet it has not been displaced. Permanence has been assaulted by no-fault divorce, yet marriage is still an open-ended covenant, rather than a contract with an expiration date. Fidelity has been de-emphasized in the culture at large, yet marriage still includes only two persons. Openness to children is being challenged by a culture of "choice," but people still associate marriage with children. Meanwhile, socially, as opposed to legally, marriage continues to have tremendous appeal. (Advocates of same-sex "marriage" trade precisely on this appeal.)

What, then, does the Vermont supreme court have to say about marriage? Listen carefully:

"The State's interest in extending official recognition and legal protection to the professed commitment of two individuals to a lasting relationship of mutual affection is predicated on the belief that legal support of a couple's commitment provides stability for the individuals, their family, and the broader community. Although plaintiffs' interest in seeking state recognition and protection of their mutual commitment may--in view of divorce statistics--represent 'the triumph of hope over experience,' the essential aspect of their claim is simply and fundamentally for inclusion in the family of State-sanctioned human relations."

(This is not the stuff that dreams are made of.)

Notice how the aspects of marriage are characterized by the court. While the court is high on stability, it is openly skeptical about permanence. While the court still talks of "couples," it offers no principled basis for limiting state benefits to "the professed commitment of two individuals to a lasting relationship of mutual affection." Prominent advocates of same-sex marriage believe that limiting marriage to couples is "too dyadic" and narrow. They believe that legalizing same-sex marriage will prepare us for additional "reforms."

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