Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.

Vermont, Public Justice, and Marriage



January 31, 2000

On December 20, 1999, the Vermont Supreme Court held that under the Vermont Constitution, same-sex couples are due the same benefits as opposite-sex married couples. The Court claimed that its decision was based on the "Common Benefits Clause" of Vermont's founding document in 1793, which prohibits favoritism in the allocation of public funds.

Did the Constitution-drafters in 1793 have this issue in mind? Highly unlikely. But the Court conceded that. Does the Clause embody a "principle of inclusion" which transcends 1793, and which is still relevant today? The Court said yes, and applied it to the question of marriage.

Let us put aside, for a moment, the question of whether the Vermont Constitution embodies a "principle of inclusion" that trumps other principles (such as separation of powers). Even if it does, that principle would pertain to the benefits granted to individuals as individuals. The Court appears to assume that marital benefits are simply favors for heterosexual individuals. The rest of its analysis is driven by this assumption, and it concludes that if heterosexuals in "couples" receive certain benefits from government, then homosexuals in "couples" should get the same.

Does this do justice to marriage? Hardly. If marriage is an institution built into the fabric of creation, premised on the union of opposite sexes, it is a mistake to conduct constitutional analysis as though marriage is purely a contract between consenting individuals.

It is likewise a mistake to hold that the Legislature has no right—literally, no right—to make distinctions between the benefits it gives married couples and same-sex couples. (The only choice left to the Legislature, according to the Court, is whether to call it marriage or not.) The benefits given to married couples are not a "special deal for heterosexuals," they are based on the State's acknowledgment that marriage exists as a unique non-governmental institution.

The Court suggests that "fostering stability" and "aiding in child-rearing" are two reasons that the State gives benefits to married couples. But this confuses the whole with the parts. The fact that marriage serves certain social functions is not the same as reducing marriage to those functions. Here again, the tendency of the Court to reduce marriage to a state-created policy, becomes clear. The picture is stark: government stands on one side and a mass of individuals on the other. Government wants to achieve certain objectives, so it creates marriage. People who share those objectives may marry or partner as same-sex couples and become eligible for equal benefits.

There is a better way to do justice to marriage. The first duty of the State is to recognize that individuals and social institutions exist, outside the State, and to recognize and protect and uphold them in law. Legislatures may decide to grant individuals, or even couples, certain rights in other fields of life, but that doesn't change marriage.

The Vermont Supreme Court has missed this point. Its analysis of marriage is flawed, and therefore its application of constitutional principles is disastrous. Meanwhile it has ordered the Legislature to grant equal benefits, and has said that if it doesn't, the Court will do it itself. Now the action has moved to the Vermont Legislature. Will it legalize same-sex "marriage" or domestic partnerships? Or will it resist the Court and propose an amendment to the Constitution? Much will depend on how the legislators themselves understand the meaning of marriage. Let's hope they do greater justice to marriage than the Justices of the Vermont Supreme Court did.

—David Coolidge, Marriage Law Project 
   Ethics and Public Policy Center


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Capital Commentary is a weekly current-affairs publication of the Center for Public Justice. Published since 1996, it is written to encourage the pursuit of justice. Commentaries do not necessarily represent an official position of the Center for Public Justice but are intended to help advance discussion. Articles, with attribution, may be republished according to our publishing guidelines.”