Introduction

Vermont is getting a lot of attention because its Legislature created civil unions. Yet civil unions are the result of Baker v. State, a case that is about marriage. How do these relate?

The relationship between the Baker decision and civil unions is commonly explained as follows: Baker does not decide anything about the marriage statute, it only requires “equal rights” for same-sex couples under Vermont’s Common Benefits Clause. Civil unions provide these equal rights without redefining marriage law. The meaning of marriage stands unchanged.

We take a different view. We believe that Baker represents an attempt by the justices to redefine marriage. This is why a Marriage Amendment to the Vermont Constitution is needed. A constitutional attack requires a constitutional response. Whatever may be the fate of civil unions in the Legislature, Vermonters should stop their court from redefining marriage. Vermonters should do this in the name of marriage and in the name of self-government.

This article has four parts. First, we explain why we interpret Baker as a decision about marriage. Second, we narrate and comment upon the debate over the question of a marriage amendment that took place during the 2000 legislative session. Third, we offer an alternative view of the relationship between the Common Benefits Clause and the marriage statute. Finally, we propose that the text of a Marriage Amendment is needed, and briefly discuss its implications.

I. Baker is really about marriage

Procedurally, no one would dispute that, at least to begin with, Baker was indeed about marriage. It was launched by a coalition of groups advocating same-sex “marriage” after a similar suit stalled in Hawaii. The suit was filed by three same-sex couples as a challenge to Vermont’s marriage statute. The preliminary motions, appellate briefs, and oral argument all treated the case as though it were about marriage. What is more, the concurring and dissenting opinions of Justices Dooley and Johnson treated the case in precisely these terms.

A. What the Chief Justice Claims

However, it is the contention of Chief Justice Amestoy’s majority opinion that Baker is not about marriage, but rather about equal rights under the Common Benefits Clause. This can be seen in the introduction, the body of the opinion, and the holding.

The introduction claims that “[t]he 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.” From the start, Amestoy claims to be avoiding any position on controversial questions of morality and law.

In the body of the opinion, Amestoy argues that the Common Benefits Clause states a “principle of inclusion” that applies to opposite and same-sex couples alike. This principle is not based on the federal response to slavery, segregation, or anti-miscegenation laws, but is instead based on giving all citizens their fair share of benefits. Indeed, Amestoy states explicitly that the issue is marital benefits, rather than marriage.

Therefore, Baker does not hold that the marriage statute is unconstitutional. It does hold, however, that the denial of marital benefits to same-sex couples violates the Common Benefits Clause. Benefits are one thing, status is another. Conferring benefits is apparently a sufficient “recognition of our common humanity.” So the argument goes.

Amestoy’s holding, however, was bewildering to advocates on both sides. On the one hand, he seemed to accept that a “separate but equal” system would do the job. On the other hand, he seemed to insist that such a system be the equivalent of marriage. This paradox is embodied in his holding that the Legislature would be free to legalize same-sex marriage in order to comply with the ruling, but had no obligation to do so. The Legislature came up with civil unions, which also embody this paradox. On the one hand, they are not marriage. On the other hand, they offer full marital benefits. What is the source of this paradox? Could it be Baker?

To be sure, both Amestoy’s opinion and the Legislature’s response to it can be seen as creative political responses to the dilemma created by the campaign for same-sex marriage. But rather than focusing on this aspect of the drama, we prefer to take another look at Baker itself.

B. What Baker Really Means

Our thesis is that Baker redefines marriage in order to arrive at its holding. It does so, however, in a way that is brilliantly opaque. Here is how we come to this conclusion.

As we have already noted, the court reasons that the Vermont Constitution generally forbids “artificial governmental preferments and advantages,” and that Vermont’s marriage law specifically offers such an “artificial preferment” to some couples and not others. This striking assumption—that marriage is an “artificial preferment”—takes us to the heart of the question.

What does it mean to say that Baker redefines marriage as an “artificial preferment”? It means that Amestoy adopts the idea that marriage is a creation of law to promote social stability. This view of marriage can be summarized in five points, illustrated by passages from the text.

1. Marriage has nothing to do with sexual difference. The majority opinion says:The laudable governmental goal of promoting a commitment between married couples to promote the security of their children and the community as a whole provides no reasonable basis for denying the legal benefits and protections of marriage to same-sex couples, who are no differently situated with respect to this goal than their opposite-sex counterparts. 2. Marriage is a wholly malleable institution that exists solely to achieve certain goals.In short, the marriage laws transform a private agreement into a source of significant public benefits and protections. While the laws relating to marriage have undergone many changes during the last century, largely toward the goal of equalizing the status of husbands and wives, the benefits of marriage have not diminished in value.The court further states that “the essential aspect of [the plaintiffs’] claim is simply and fundamentally for inclusion in the family of State-sanctioned human relations.”

3. Marriage is a policy device to promote stable relationships. In rebutting the State’s claimed justifications for its marriage law the court said: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. 4. Marriage is a policy device to protect children. This resembles the stability argument:Therefore, to the extent that the State’s purpose in licensing civil marriage was, and is, to legitimize children and provide for their security, the statutes plainly exclude many same-sex couples who are no different from opposite sex couples with respect to these objectives. 5. Marital benefits are something to be equally distributed by the State as a matter of basic fairness. Applying the constitutional standard, the court concludes:The extension of the Common Benefits Clause 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. These passages reveal a deeper view at work here in the opinion. Instead of treating marriage as something with its own unique reality, the court treats it as a mere creation of the law that can be deconstructed and reassembled according to some basic concept such as “equality” or “inclusion.” What truly matters is “common humanity.”

If one accepts the above assumptions, Baker’s talk of “equal rights” makes sense, regardless of whether one supports the particular way in which Amestoy resolved the case. If one does not accept these assumptions, however, “equal rights” is just rights rhetoric that distracts the public from the real issue: the redefinition of marriage.

C. This Is a Redefinition

It should be pointed out, in case it is not obvious to some readers, that this is a redefinition of marriage. Whether one thinks it is a good or bad thing, it is a real thing. The statutes of every state embody the view that marriage is the union of a man and a woman, equal yet different, who join their lives to form a family. To be sure, this concept has been under attack in the last fifty years, and alternative models of marriage have been proposed. However, to date, every state that has been challenged by a judicially-imposed redefinition has rejected it.

If the court has attempted to redefine marriage prior to applying the constitution to marriage law, a rather obvious question comes to mind: on what basis? After all, the Chief Justice and his colleagues have no more expertise in marriage than their legislative colleagues, not to mention their fellow Vermonters in general. If there are contending views of marriage in the air among the citizens and public officials, then what grounds does the court have for attempting to end that contention by judicial fiat?

This question became very concrete for the Vermont legislators who received the court’s decision. The next section describes the legislative debate about a constitutional amendment.

II. The Drama of the 2000 Legislative Session

Our goal here is not to offer a comprehensive narrative of the debate about civil unions. That would be premature, and in addition it would be larger than is needed to make our case. We therefore put to one side the complex debate that led to the civil unions statute, and refer to it only as it relates to the larger debate about the question of a constitutional amendment. The determining factor in whether legislators saw the need for a marriage amendment was whether they understood Baker to be about marriage, not simply about “common benefits.” As we will see, the majority of Vermonters saw the connection between Baker and marriage. The majority of legislators, however, especially in leadership positions, saw it quite differently. For this reason, though there was much public controversy, there was little legislative debate.

A. Prologue: Conversations and Obstacles

Conversations about the possible need for a Marriage Amendment began in 1998, while Judge Levitt’s decision was on appeal to the Vermont Supreme Court. When Take It To The People (TIP) announced its formation, it stated: “We have a strong tradition of grassroots democracy and self-government. If necessary, Take It To The People will support a constitutional amendment that will preserve the power of the people to define marriage.” At the time, Marriage Amendments were pending in Hawaii and Alaska. They later passed by wide margins in November 1998. Thus, before Baker was decided, two Marriage Amendments were added to state constitutions.

On December 16, 1999, just days before the release of the Baker decision, TIP issued a press release announcing the results of a poll on a possible constitutional amendment. The poll found that by a 56-33 margin, Vermonters supported an amendment to the Vermont Constitution that would “keep Vermont’s definition of marriage as the union of one man and one woman.” Shortly thereafter, when Baker came down, Craig Bensen, vice president of TIP at the time, raised the issue of following Hawaii and Alaska. “We suspect,” he stated, “there will be momentum for a constitutional amendment to clarify the nature of marriage.” Bensen also noted, however, the difficulty that such a course would face. Vermont’s constitutional amendment process is notoriously difficult. There are no provisions for amendment by initiative. Legislators can introduce amendments only once every four years. If approved, an amendment must pass in two consecutive two-year legislative sessions. Only then can the people vote on the proposal. The alternative is to amend the constitution by means of a constitutional convention, but this has not occurred since the amendment process was created. In other words, even though 2000 was a year in which , legislators could introduce amendments, passage in 2000 would have to be followed by passage in 2001 or 2002. Therefore, November 2002 would be the earliest possible time at which the citizens of Vermont would be able to correct their court. Given the fact that the Vermont Supreme Court had indicated a willingness to decide the Baker case for itself if the Legislature did not act in a timely manner, legislators might even claim to support civil unions in order to avoid same-sex marriage. The odds against an amendment were high.

B. Act I: The House of Representatives

1. Scene 1: The House Judiciary Committee

The Marriage Amendment was put on the table during the first day of hearings held by the House Judiciary Committee. On January 11, at least three witnesses, including Hal Goldman, Thomas McCormick, and William O’Brien, argued that a constitutional amendment would be a proper response to Baker. McCormick urged the Committee to “[b]egin the process for a constitutional amendment.” O’Brien agreed, stating: “It is our sense that the vast majority of Vermonters does not want to sanction same-sex marriage. If that is the case, then the route you should follow is a constitutional amendment, that, in effect, trumps Baker.” On the same day, Senator Julius Canns announced his plan to introduce a Marriage Amendment.

The author, Coolidge, testified on January 13 concerning the meaning of Baker, arguing that Baker was about marriage, not just about common benefits. The Committee also heard from Professor Greg Johnson from Vermont Law School, who strongly disagreed. The Committee heard from the plaintiffs’ attorneys, who also disagreed, as expected. Based on their questions and comments, the Committee appeared to reject the idea that responding to Baker required them to make a moral judgment about the meaning of marriage.

The amendment question arose again on January 20, when Brigham Young University Law Professor Lynn Wardle testified before the Committee. In testimony submitted to the Committee, he stated forcefully:The Vermont court in Baker had no business making the decision it did. The decisions whether to radically redefine or create a new imitation of the fundamental unit of our society, the foundation of our families, does not belong to the judiciary to make. It is a constitutional decision which should be made by the people themselves, who are the source of all constitutional authority, and the last resort on questions of constitutional intent and meaning.

I respectfully call upon this committee and the legislature to put this matter before the people by proposing a constitutional amendment containing words such as: “Only marriage between a man and a woman shall be valid or recognized in Vermont,” or other language that clearly allows the people to decide if they want to define and protect marriage as the unique, exclusive union of a man and a woman. Professor Wardle noted that “until something is done to protect marriage constitutionally, the court has forced people into corners, apart.” He suggested the Committee consider inviting a legislator from Hawaii to describe the Hawaii experience with a Marriage Amendment so that the Committee could weigh the option appropriately The Committee did not extend such an invitation.

2. Scene 2: Popular Resistance

On January 26, 1999 Senator Canns’ amendment was filed. The proposed amendment read that: “marriage is a special label for the partnership between a man and a woman.” Senator Canns noted that the amendment would allow Vermonters to have a say in the marriage debate but admitted that there was not likely to be enough support in the Senate for the proposal. At the time, Professor Peter Teachout of Vermont Law School acknowledged, “[i]f you want to alter the Supreme Court decision, that [a constitutional amendment] is the only way to do it.” On January 28, 2000, the results of a poll commissioned by the Rutland Herald, Barre-Montpelier Times-Argus, and WCAX Channel 3 News reported that 49% of respondents favored a constitutional amendment defining marriage while 44% were opposed.

Both inside and outside the State House, people asserted their right to have a say on the issue of a constitutional amendment. On February 2, 2000, in conjunction with public hearings held by the House Judiciary, opponents of redefining marriage to include same-sex marriage rallied outside the State House. One of the speakers at the rally was Bishop Kenneth Angell of the Diocese of Burlington. He “urged opponents of same-sex marriage to call for a constitutional amendment that would define marriage as the union of one man and one woman.” Organizers of the rally presented to legislators petitions signed by hundreds of Vermonters calling for a constitutional amendment. TIP’s Craig Bensen asked, “are we going to . . . express the will of the people and insist that a constitutional amendment come forth that ends once and for all any attempt, any question that the definition of marriage be anything but one man and one woman?” Reporting on the hearings, The New York Times noted that “speakers have repeatedly denounced the court’s decision and urged the legislature to back a constitutional amendment to overturn it.”

Citizens tried to assert themselves in town meetings. In mid-February, the Rutland Herald noted that the town of Dorset decided to discuss the question of a constitutional amendment in its upcoming town meeting. Later in the month, a Republican State Committee held a meeting at which the idea of a constitutional amendment was a major topic. Party chairman Patrick Garahan told the group: “Fundamentally, in my view, the definition of this ‘marriage’ is so important that it should be up to the people to decide . . . if the majority of the people . . . decide they want [an amendment], so be it.” He argued that the framers of the Vermont Constitution had clearly not meant for the courts to interpret the Common Benefits Clause as the Vermont Supreme Court did in Baker, and it was time for the party to support an amendment.

After many weeks of hearings, the House Judiciary Committee proposed draft legislation to create what it called “civil unions.” On February 7, 2000 the Committee rejected a proposal to legalize same-sex marriage 8 to 3, and on March 1 voted in favor of the “civil unions” bill 10 to 1. Then on March 4, on the eve of town meetings, the Legislature took a break for a week. Town meetings were held March 7, 2000. Every town voting on same-sex marriage opposed it. Fewer towns voted about a constitutional amendment, but of the twenty-six that did, voting favored an amendment in all but two towns, Cambridge and Waterford.

3. Scene 3: The House Floor

The heavy opposition to same-sex marriage and domestic partnerships in the town meetings did not go unnoticed. When the Legislature reconvened on March 13, 2000, a group of representatives announced the creation of a Traditional Marriage Caucus. Its co-chairs were Representatives Bobby Starr (D-Troy) and George Schiavone (R-Shelburne), and they had the support of Representative Oreste Valsangiacomo (D-Barre), Chair of the House Ways and Means Committee and senior Democrat in the House. The Caucus argued that the leadership was out of step with the citizens and should pull back. Nevertheless, the leadership pushed ahead with floor debate on March 15-16.

Many things could be said about these two days of debate, which were genuinely historic. We will keep our focus, however, upon the way in which the question of an amendment surfaced.

On March 15, before any other business was done, Representative John Robb offered a joint resolution calling for the Senate “to adopt a constitutional amendment defining marriage as a legally sanctioned union between a man and a woman.” Representative Robb’s resolution noted the confusion that had been caused by the court’s ruling in Baker that the marriage law was not constitutional yet still ordering the Legislature to offer benefits to same-sex couples. He also noted that Vermonters had expressed strong opposition to the ruling. The resolution stated, “the only legislative recourse to guarantee that marriage continues to be defined exclusively as a union between a man and a woman is to amend the Vermont Constitution to include this very fundamental principle.” Representative Robb concluded the resolution by requesting the Senate “to promptly adopt, and forward to the House for action, a proposed constitutional amendment defining marriage as a union between a man and a woman.” The resolution was immediately referred to the House Judiciary Committee where it was never heard from again.

Later in the day, when the House took up the “civil unions” bill, the second proposed amendment to the bill again raised the question of a constitutional amendment. Representative Thomas Koch (R-Barre) moved to strike all the contents of the bill and to replace them with a call for a constitutional convention. This convention was to be called “for the sole and limited purpose of responding to the Vermont Supreme Court’s decision in Baker v. State of Vermont.” Representative Koch said that Vermonters “want an opportunity to participate in the process.” Representative Valsangiacomo responded to critics of the Convention by asking, “[a]re you afraid of the people? I’m not . . . . It’s basically the people. They want to be heard.” Representative Koch similarly argued, “I’ve heard loud and clear that the people want to participate in the process. The real question is whether the people will be permitted to participate in the process or they will be frozen out.” Representative DePoy said, “this amendment would give the people the chance they . . . Demand.” Nevertheless, the House rejected the amendment by a vote of 103 to 45.

After this vote, other attempted bill amendments and a recess, Representatives Starr and Schiavone offered a strike-all amendment that called for an “Advisory Referendum” allowing a vote of all Vermonters about same-sex marriage, domestic partnerships, and whether the General Assembly should “initiate an amendment to the Vermont Constitution providing that marriage may be only between one man and one woman.” Representative Starr explained that the referendum, “gives us enough time to talk to our constituents and to educate them.” The House rejected this amendment by a vote of 91 to 56.

Next, the House leadership allowed Representative Dean Corren (P-Burlington) to propose his amendment to legalize same-sex marriage. In a move that surely helped those representatives vulnerable to election-year challenges, the House voted strongly to reject the legalization of same-sex marriage by a vote of 125 to 22 . Having supposedly gone on record in favor of marriage, the House approved the “civil unions” bill 76-69.

C. Act II: The Senate

There was no pause between the House and Senate. On March 16, TIP began to circulate a flyer calling for Vermonters to contact their local newspapers and demand a constitutional amendment. Senator Richard Sears (D-Bennington), chair of the Senate Judiciary Committee, announced the same day that his committee would consider the issues of an amendment.

1. Scene 1: The Senate Judiciary Committee

When hearings began on March 21, Senators John Bloomer (R-Rutland) and Vincent Illuzzi (R-Essex/Orleans), the two Republican members of the committee, announced they would support a constitutional amendment, offering no specifics. The bulk of the hearings, however, concerned specific issues related to the civil unions bill, such as the question of a residency requirement.

The question of an amendment surfaced in the midst of general testimony on the civil unions bill. On March 29, for example, six religious leaders testified before the Committee. In his testimony, Bishop Kenneth Angell pressed for a constitutional amendment to correct the Baker decision. After noting that the decision had “put the legislators in a box” by its order to provide marital benefits to same-sex couples, he said:If the Supreme Court has boxed you in, then you must get out of the box. Under our system of government, getting out of the box requires a Constitutional Amendment. I’m not a lawyer, but I know that such an amendment must restore to you, as Legislators, the rightful authority to regulate marriage, and to make your own best judgements about other questions. I know that other such Amendments have passed in Hawaii and Alaska.Additional testimony was offered on March 30 by TIP, on April 6 by Tom McCormick, and on April 7 by the author, Coolidge. Several professors offered testimony in opposition.

Meanwhile, Senator Canns’ proposal was joined by one from Senator Illuzzi. Illuzzi’s text, which he introduced on March 31 as an alternative to Canns’ Proposal 6, reads as follows:Marriage [is] the legal union of one man and one woman. The General Assembly shall define the legal benefits and responsibilities associated with marriage. No provision of this Constitution shall be held to require that any such benefits and responsibilities be extended by the General Assembly or the judiciary to any grouping of people other than one man and one woman.Illuzzi’s proposal reaffirmed the proper authority of the Legislature and addressed the holding in Baker. As hearings progressed, Senator Bloomer, Republican Senate leader and member of the Committee, expressed serious doubts about Illuzzi’s proposed amendment. The inference from Senator Bloomer’s vote against the amendment was that an amendment that defined marriage, but did not overrule Baker, would be sufficient.

On April 11, after much behind-the-scenes prodding, and some intense moments during its session, the Committee voted 5 to 1 to allow the whole Senate to consider a constitutional amendment. Senator Illuzzi insisted that only his text would fully address the Baker decision. Bloomer repeated his substantive concerns, and added a practical consideration as well. He preferred Illuzzi’s first sentence to Canns’ text, but he preferred to drop any additional text. He expressed his concern that reporting out Illuzzi’s text would give the Democratic leadership a parliamentary maneuver by which they could vote for a one-sentence marriage amendment, but only as a step toward voting on Illuzzi’s version, which they were then certain to reject. But the Committee proceeded to send Senator Illuzzi’s language to the Senate floor without a recommendation. One commentator noted that the third sentence of the Illuzzi amendment “would take away from the Supreme Court the power to invent a constitutional right for same-sex couples or any other collection of partners to enjoy the benefits of marriage.” The third part of the Illuzzi amendment, he added, “is an attempt to rein in a Supreme Court which has exhibited an alarming tendency to manufacture imaginative constitutional rights out of thin air and dictate the actions of the general assembly.”

On April 13, the Committee approved a slightly modified version of the “civil unions” bill on a 4 to 2 vote, and the proposed marriage amendment was on its way to the Senate floor.

2. Scene 2: The Senate Floor

On April 18, the full Senate took up the amendment and the civil unions bill and first addressed Proposal 6 (as amended by Senator Illuzzi). Before anything could be done with the amendment, Senator Canns proposed a substitute amendment that would read: “Marriage is [sic] legal union of one man and one woman.” The Senate rejected the amendment on a 17 to 13 vote. Senator Richard Sears moved that the placement of Proposal 6 in the constitution be changed from Chapter I, Article 22 to Chapter II, Section 77. This motion was approved 26 to 4. Next Senator Gerald Morrissey offered a substitute amendment that would have provided, “[n]o provision in this constitution shall be held to require that marriage be extended by the judiciary to any grouping of people other than one man and one woman.” This would have potentially staved off a court decision further down the road. Senator Morrissey’s amendment was rejected 18 to 12.

Once his amendment text was properly before the full Senate, Senator Illuzzi made a speech that focused on two points: (1) the need for an amendment to counteract Baker, and (2) the need for the people to continue to be the ultimate authors of the constitution. He described the amendment as follows: “This amendment reflects a reasoned, moderate legislative response to the Baker decision. . . . It simply reestablishes the right of the people of Vermont to address this issue through the constitutional amendment process as envisioned by the authors of that document. And it negates the judicial activism reflected in the court’s opinion.”

Senator Illuzzi then took issue with the court’s analysis in Baker of the Vermont Constitution, arguing that the decision conflicts with the intent of the 1777 Constitution’s Common Benefits Clause. He accused the court of judicial activism and concluded by saying: “The amendment should be passed so this question can be debated on the Main Streets of Vermont, so that the people can decide whether their fundamental law, their constitution as now interpreted, needs revising.” The Senate soundly rejected Senator Illuzzi’s proposal by a 21 to 9 vote. Democratic Majority Leader Richard McCormack explained his opposition to the amendment by saying, “[h]undreds of people have told me with such indignation, ‘Shouldn’t the majority rule?’ And the answer is no, not in America. Not in America when it comes to protecting the rights of the minority.”

After rejecting the amendments, the Senate approved the civil unions bill in a 19 to 11 vote, and the matter returned to the House. The debate over a constitutional amendment in the Legislature was now over, almost before it began.

D. Epilogue: The Quest Continues

On April 25, the House approved the Senate’s version of the civil unions bill by a wider margin than it had earlier, 79 to 68. The quest for a constitutional amendment, however, had not ended. Representative George Schiavone noted in his speech on the House floor during the final debate:We seem convinced that it is doing some great duty to the Constitution by ignoring or scornfully rejecting the Authors of that Constitution. . . . Truly listening means that if the People appear to strongly disagree with their own Supreme Court, then the People should have the chance to do something about it. Amending the Constitution was stopped. Proposals for a constitutional convention or even just a non-binding referendum were made in this chamber but soundly defeated.On April 26, Governor Howard Dean signed the bill in a private ceremony. Even as he signed the bill, opponents held out hope that a new Legislature, elected in November 2000, would set in motion the necessary constitutional change.

Additionally, a poll commissioned by the Rutland Herald, Times Argus, and WCAX TV, and conducted on April 26 and 27, found that 51% of those surveyed favored and 42% opposed “an amendment to the Vermont Constitution which would define a marriage as a union between a man and a woman in order to prohibit any future efforts to allow gay and lesbian couples to marry.” Even after the “civil unions” law went into effect in July, gubernatorial candidate Ruth Dwyer stated in an interview that if the November general elections in Vermont signaled a major change in the political climate, she would favor doing “what I think we should have done in the first place, which is go ahead with the constitutional amendment process and let the people vote and decide.”

E. Final Observations about the “Debate”

We can summarize the meaning of this narrative in a preliminary way. Although the public seems to have understood that Baker was about marriage, the leadership in the Legislature falsely but successfully portrayed Baker as a decision only about equal rights. This allowed them room to evade their constitutional responsibility to respond to Baker. The purpose language in the civil unions bill prepared by the House Judiciary Committee made this explicit. This was also the line taken by the majority of Representatives on the House floor. The Senate Judiciary Committee followed suit, allowing token debate over an amendment to occur on the Senate floor to avoid the charge of ignoring the people.

Throughout the session, the leadership—Committee Chairs, Majority Leaders, the House Speaker, the Senate President, the Lieutenant Governor and the Governor—were resolutely opposed to any serious consideration of a marriage amendment. They were determined to speed through the passage of the civil unions bill and to disregard calls for an amendment. They were unwilling to allow a popular vote of any kind and ignored calls for non-binding referenda, a constitutional convention, and an amendment. They gave no weight to the popular sentiment evident in town meetings and opinion polls.

Legislative supporters of a marriage amendment, on the other hand, were not in a position to effectively advance their cause. House supporters could not even introduce an amendment. All they could do was to express the people’s outrage while time passed. Civil unions had momentum by the time the issue reached the Senate in mid-March. No one seemed to take seriously the possibility that an amendment could actually pass. Support in the Senate for an amendment was divided, on the Judiciary Committee and on the floor. The supporters seemed to grasp that Baker was about marriage, but they were also acutely aware that Senate leadership had succeeded in portraying it otherwise. They were unsure how to respond, and many of them said almost nothing during the “crucial” floor debate.

With the Supreme Court having decided Baker in December 1999, it seemed that the stage was set for a constitutional showdown in the 2000 legislative session. But the clash of titans did not really occur. To be sure, the debate on the Senate floor was an important moment. But after that debate, the Burlington Free Press announced in bold letters, “Lawmakers Preserve Constitution.” That prejudiced headline summed up almost perfectly why there was no debate: amendment opponents had portrayed themselves as defenders of the Constitution’s guarantee of “common benefits.” Amendment supporters, in contrast, had failed to offer a unified voice for their position. The real legislative debate on a marriage amendment has yet to begin.

III. Marriage and the Vermont Constitution

If the Supreme Court appears unwilling to reconsider its approach to the question of marriage, then it remains for citizens and their elected representatives to overrule the court. In Section V, we offer what we believe to be a workable text for such a marriage amendment.

Prior to this, however, it may be helpful to offer a view of how marriage relates to the Vermont Constitution, including the Common Benefits Clause. Based on this broader understanding, advocates of an amendment can explain why it is that they genuinely support both marriage and equal rights—without being constitutionally compelled to confuse the two. As it turns out, this view is both principled and consistent with Vermont’s legal history.

A. An Historical Perspective

We have argued above that the logic in Baker is driven by an attempt to redefine marriage. The court attempts to use general constitutional concepts to redefine an existing social institution. It does so based on the view that marriage is a creation of the law, which the law is free to change.

This way of relating a general constitutional concept to a statute regulating an institution is different than the method commonly employed throughout Vermont’s constitutional history. While history alone is not determinative for constitutional interpretation, it plays a crucial role. As the court itself has recently stated, historical analysis can outline “[t]he wisdom of the original constitutional structure,” and provide the court with the necessary perspective for its task.

Looking at Vermont’s constitutional history helps to clarify three issues: the purpose of the constitution, the meaning of the Common Benefits Clause, and the meaning of the marriage law. The Vermont Constitution, in its original context, was based on a series of assumptions about ethics, politics, and law in which the Common Benefits Clause fit with the marriage law. This constitution was part of the first wave of American constitutions. Those constitutions, despite their individual differences, rested on three key assumptions:

(1) government is instituted by the people to serve the common good of the community;

(2) individuals have certain natural rights that the government and its laws should respect; and

(3) laws regulating basic social institutions are the province of common law and statute.

Behind each of those assumptions was an even more fundamental belief: that certain moral truths exist that are binding on government, society and individuals alike. Far from being neutral, the Vermont Constitution assumed the existence of those universal truths. The goal of the constitutional order adopted by Vermonters was not one of “liberating the individual” but one of limiting government, so that the people could exercise self-government as individuals, as members of non-governmental institutions, and, finally, as citizens of the Republic of Vermont. The objective of constitutional self-government was not to expand government, but to restrict it, not because government is intrinsically evil, but because government is intrinsically limited. Whether or not one accepts that philosophical background of the Vermont Constitution, it is the background that led the people to adopt Vermont’s enduring structure of government.

The Common Benefits Clause must therefore be understood within this overall context of constitutional assumptions. The animating concern of the clause was not slavery versus freedom, as with the Fourteenth Amendment of the United States Constitution. Neither was it individual autonomy versus social institutions. Instead, its context was that of communal self-government versus outside domination. The Constitution of 1777 was adopted during the Revolutionary period in response to usurpations of governmental power. While the Declaration of Independence had focused on offenses committed by Great Britain, the Preamble to the Vermont Constitution focused on the State of New York. It listed abuses committed by the courts, legislature, governors, and “free convention” of New York. The Vermont Constitution was adopted so Vermonters would no longer be subject to violations of the rule of law, based on the whims of their governors.

What is striking about Article 7 is its attribution of “indubitable, unalienable, and indefeasible” rights to the community. Rather than being a charter for individual rights claims, the Common Benefits Clause was an “anti-privileges clause.” Indeed, the purpose of the clause could be formulated in the following manner: If the People decided to enact certain regulations or offer certain benefits, those benefits should be distributed without any favoritism. As for the marriage law, it was enacted by the Legislature in 1779, shortly after the launching of the Vermont Constitution, and its substance has survived to the present day. The law licensed marriage, but did not create it; marriage itself was understood by the legislators of that time to be a social custom based on the laws of human nature.

The marriage statute was part of a larger code that also included statutes criminalizing adultery, fornication and sodomy, and severely limiting divorce. Some of those laws were actively enforced, others were left largely unenforced, and others were eventually repealed. All the laws, however, were considered consistent with the Common Benefits Clause. As the Vermont Supreme Court has noted, “[e]ach state’s constitutional evolution is unique.” One looks virtually in vain, however, for any use of the Common Benefits Clause reshaping marriage and family law over the past two centuries of Vermont life. Instead, the court has primarily applied Article 7 in cases involving government taxes and benefits. During the nineteenth century, and well into the twentieth, the court decided a number of important marriage and family law cases, but in none of them did it question the constitutionality of the laws at issue under Article 7. The court simply interpreted and applied relevant statutes and common law rules according to their subject matter, without abstract discourses on “freedom,” “equality,” or “inclusion.”

In the last twenty-five years, most of the court’s family law decisions have been made without reference to Article 7. Some were made without reference to constitutional questions of any kind. Others addressed constitutional questions, but solely in terms of federal constitutional law. An important exception involved an adoption statute, rather than a marriage statute, and is distinguishable from the case of marriage.

B. A Structural Perspective

As the court has noted, the Vermont Constitution “differs from the United States Constitution. It predates the federal counterpart, as it extends back to Vermont’s days as an independent republic. It is an independent authority, and Vermont’s fundamental law.” Constitutional interpretation can benefit from “the wisdom of the original constitutional structure.” This “wisdom” offers us a clearer way of thinking about the relationship between marriage and the constitution, a way that maintains constitutional principles without engaging in arbitrary attempts to redefine social institutions, such as marriage, in the name of those principles.

1. The Purpose of the Constitution

By means of a constitution, the people limit the power of their government. The first thing that limits government is respect for realities external to government. One of those external realities is the individual, whose rights are the subject of many of the Articles in Chapter I, the Declaration of Rights. But individual rights are not the only limits that government has a responsibility to respect. Government also has a duty to respect the realities of marriage and family, which government does not create. If government can respect natural rights, it can certainly acknowledge the natural family. Indeed, even Article 7, the putative basis for the Baker decision, refers to “family” as though the term is readily understood.

The second thing that limits government is respect for internal realities. The principles of separation of powers and checks and balances are ways that government limits itself by being divided into separate branches that influence one another in various ways. Marriage, for instance, is primarily regulated by the legislative branch. It only becomes the subject of executive regulations for purposes of licensing and statistical analysis. It only comes before the judiciary if there is a controversy over its application, meaning or constitutionality.

The question of constitutionality, of course, is precisely what was put at issue by the plaintiffs in the Baker case. But the court would have been fully justified in dismissing the case. When the court exercises its right and duty to interpret the Vermont Constitution, it is still accountable to external realities, such as the nature of marriage, and to internal realities, such as the Legislature’s role in regulating marriage. Reinventing marriage is not part of its job.

2. The Meaning of the Common Benefits Clause

In view of the preceding history, the purpose of the Common Benefits Clause can be succinctly stated: the clause aims to prevent state favoritism. The Vermont Supreme Court summarized its understanding of the clause in In re Property of One Church Street. The context of that decision, as with most cases under Article 7, was a dispute over taxes. The property tax ordinance listed nonresidential city property at 120% of fair market value, which the taxpayer argued was in violation of Article 7. The court declared:Taxpayer is correct in identifying the “preferential standard” as the evil which the Common Benefit Clause addresses. While the focus on the federal Equal Protection Clause and Vermont’s Proportional Contribution Clause is the individual and the social calculus of what is required to treat each individual in the society equally, the emphasis in the Common Benefit Clause is the obverse—what is required to protect the polity from the granting of privilege to the few. Though it may be an oversimplification, the goal of the Proportional Contribution Clause is protection of the individual from unfair government action, while the aim of the Common Benefit Clause is to protect the state from favoritism to individuals and to remind citizens of the sense of compact that lies at the heart of constitutional government.The Common Benefits Clause is not preoccupied with the questions that bedevil equal protection analysis, except insofar as the court chooses to import them from federal law. The chief goal of the clause is not to wipe out all differences but to avoid favoritism.

It is not surprising, then, that the court has declined to analyze most questions of family law by means of the Common Benefits Clause and has not analyzed marriage in that manner at all. By and large, the court has presumed statutes concerning marriage and family law to be consistent with the Vermont Constitution and has left regulation of such basic social institutions to the wisdom of the Legislature. The Legislature is free to revise its statutes, based on its best judgment about proposed legislation.

It is not at all obvious, therefore, how the fact that the current marriage law limits marriage to opposite-sex couples even implicates the Common Benefits Clause. The state, after all, does not prefer some marriages to others. The Legislature has democratically adopted a definition of marriage and has made it available to all.

3. The Meaning of the Marriage Law

The institution of marriage, by definition, is a sexual community that involves a man and a woman. Marriage is created by the committed union of a male and a female, a union that is unique and potentially procreative. This is a matter not only of history but of principle. The rationale to uphold Vermont’s marriage statute is not that it has been in effect for over two hundred years. More deeply, the statute relies on the enduring reality of a unique sexual community. Other statutes define persons or businesses or charitable organizations based on their character. The marriage statute recognizes marriage with reference to its basic characteristics. It is definitional. The court in Baker faced the question of whether the recognition and regulation of a distinctive social institution is a valid public purpose, but asking the question virtually answers it. If a social institution is of concern to the government, which marriage surely is, then it is valid for the law to recognize and regulate it. That way, the government can allocate rights, duties and benefits that help to preserve the institution, protect it from harm by individuals and other institutions, and promote it as a matter of good public policy. In doing so, the government does not engage in “favoritism” but instead acts on behalf of “the common benefit, protection, and security of the people, nation, or community.” With this view of marriage in mind, the state is clearly justified in providing marriage licenses only to opposite-sex couples.

4. The Importance of Self-Government

The Vermont Constitution belongs to the people of Vermont, not to the Vermont Supreme Court. In the words of the Vermont Constitution: “[t]hat all power being originally inherent in and co[n]sequently derived from the people, therefore, all officers of government, whether legislative or executive, are their trustees and servants; and at all times, in a legal way, accountable to them.”

The court in Baker has defied both the reality of marriage and the proper power of the Legislature. The people need not accept this. They have a right to correct the court, and they should exercise that right by enacting a constitutional amendment. As Professor Wardle argued before the Vermont House Judiciary Committee: The decisions whether to radically redefine or create a new immitation [sic] of the fundamental unit of our society, the foundation of our families, does not belong to the judiciary to make. It is a constitutional decision which should be made by the people themselves, who are the source of all constitutional authority, and the last resort on questions of constitutional intent and meaning. The remaining question, therefore, is how one might implement this alternative view of the Vermont Constitution through a marriage amendment that overrules Baker.

IV. A Proposed Marriage Amendment

If the above analysis is correct, there is no need to alter the Common Benefits Clause. What is necessary is to correct the court’s misapplication of the clause based on its view of marriage. Unless one views the court as a sacred institution whose decisions cannot be questioned, it is not only consistent with the democratic process for the people to overrule the court, it is also their duty. Anything less will allow the court to keep acting as though it is above the rule of law. Caught in a vise between the court and civil unions advocates, the Legislature was not able to take a marriage amendment seriously in the 2000 legislative session. But the drama is not over. A marriage amendment can still be considered by the Legislature in two possible ways. First, in any legislative session, a bill can serve to convene a constitutional convention, and the question of marriage can be taken up as part of the agenda of that convention. Second, in the 2003-2004 legislative session, the Senate can again address constitutional amendments directly.

An effective constitutional response to Baker must address three issues: (1) the definition of marriage, (2) the Common Benefits Clause in relationship to marriage, and (3) the appropriate authority of the Legislature to regulate marriage.

A. The Definition of Marriage

As we saw, several proposed amendments were considered in the 2000 legislative session including a proposed definition of marriage. In addition, a number of states have considered marriage definitions for their state constitutions or state law. For instance, Alaska’s Constitution states, “[t]o be valid or recognized in this State, a marriage may exist only between one man and one woman.” In March 2000, voters in California approved a ballot initiative that declared, “[o]nly marriage between a man and a woman is valid or recognized in California.” A proposed constitutional amendment in Oregon asserted,“‘[m]arriage’ means a civil contract between a male and a female solemnized according to law.” Another proposed constitutional amendment in Oregon stated, “[t]o be valid or recognized in this state, a marriage may consist only of the union of one man and one woman.” While most of these proposals would suffice, California’s seems clearest.

B. The Common Benefits Clause

At least two proposed amendments in the Vermont Senate dealt with the Common Benefits Clause. Few state constitutional amendment proposals have dealt squarely with the issue of a constitutional interpretation that requires extending benefits to same-sex couples. This actual situation has arisen only one other time, in Oregon, where a court of appeals held that public employers must offer the benefits provided to married spouses of employees to same-sex partners of public employees. In that case, an amendment to the Oregon Constitution was proposed that would have provided, “[n]o provision of this Constitution requires the granting of marriage licenses, rights or benefits to unmarried individuals.” Similar language was originally proposed as part of the Alaska Marriage Amendment. Somewhat different language has been put on the November 2000 ballot in Nebraska.

An amendment could prohibit the creation of marriage-like substitutes. More likely, however, it would just state that the Vermont Constitution does not require such legislation. The original second sentence of the Alaska Amendment would accomplish this objective. The text would cover the whole Constitution, including the Common Benefits Clause.

C. The Scope of Legislative Power

It is not clear whether a third sentence is necessary to reaffirm the legitimate authority of the legislature, either generally or specifically with regard to the question of same-sex marriage. One Vermont Senate amendment included such a sentence in general terms. The Hawaii Constitution speaks specifically to the issue of legislative power. It provides: “The Legislature shall have the power to reserve marriage to opposite-sex couples.”

D. Synthesis: A Proposed Marriage Amendment

Based on the above, we would recommend the adoption of the following marriage amendment: Only marriage between a man and a woman is valid or recognized in this state. No provision of this Constitution may be interpreted to require the state to recognize or permit marriage between individuals of the same sex. No provision of this Constitution shall be held to require that any such benefits and responsibilities be extended by the general assembly or the judiciary to any grouping of people other than one man and one woman. This amendment would make it clear that, according to the people of Vermont, marriage requires a man and a woman. It would also make clear that the Vermont Constitution may not be manipulated to force marriage substitutes like civil unions under the guise of rhetoric about “equal rights,” “common benefits,” or “common humanity.”

It should be noted that the amendment will not automatically repeal Act 91. Following the passage of such an amendment, the court’s requirement that Act 91 exist would be repealed. Whether the Legislature will follow up and repeal the law, however, is up to them. They could leave it as is, repeal it or replace it with something else. Without the court’s gun to their heads, they can be trusted to use better judgment.

Conclusion

In this article we have attempted to make the case for a Vermont marriage amendment. We have explained how the Baker decision attempts to redefine marriage. We have also described how the court and the leadership of the Legislature succeeded in portraying Baker in different terms, thereby justifying their opposition to an amendment. We have offered an interpretation of how the marriage law relates to the Vermont Constitution that leaves ample room for legislative judgment on same-sex issues. Finally, we have offered our own proposed text for a Vermont Marriage Amendment.

Hopefully those readers who are sympathetic to the Baker decision will better understand why otherwise intelligent people, including their neighbors, consider Baker a disaster of constitutional proportions, which requires a remedy only the people can provide. If, armed with this understanding, such readers march forward to defend Baker to the death, we hope that they will also understand exactly what they are defending. It is no small thing for a court to redefine marriage. The consequences can hardly be foreseen.

Ultimately, the people of Vermont themselves must decide whether a marriage amendment is needed, assuming that legal elites will ever allow them to make the decision. If these elites continue to disregard popular sentiment, on the other hand, they will pay the price in due course. In fact, this may already be happening as we write. Vermont now appears to be in the midst of a major political upheaval, in which the Baker decision and the controversy over civil unions are merely the proverbial straws which seem to have broken the camel’s back. Only time will tell if changes will be lasting.

There is no doubt in our minds, however, that if Vermonters want to reaffirm marriage, in the light of Baker, there is only one solution: pass a Vermont marriage amendment. In this way they will not only reaffirm marriage but reaffirm self-government as a people.