June 26, 2000/Vol 5, Number 39
The Civil Truth About "Civil Unions"
Vermont has legalized quasi-marriage for same-sex couples. Will other states be forced to follow?
By David Orgon Coolidge

Starting July 1, any two adults not closely related by blood can enter into a "civil union" in Vermont. They must apply for a license and recruit a member of the clergy or a justice of the peace to conduct a ceremony and sign their license, whereupon the town clerk will duly register their union.

If this sounds familiar, it should. It's marriage by another name. A same-sex couple in a civil union will be all but married under Vermont law. If anyone treats a civil union differently from a marriage, that person will be guilty of discrimination on the basis of marital status. Starting January 1, 2001, all insurance policies offered in Vermont must treat civil unions and marriages identically. It is unclear whether the religious exemption added to the civil unions bill at the last moment will have teeth.

How did this happen? At the time the legislature was crafting this innovation, only 40 percent of Vermonters favored extending the benefits of marriage to same-sex couples. The bill itself was pushed through the legislature in the space of less than two months. Yet its enactment was no chance development.

The long march to legitimize homosexuality in Vermont began 15 years ago, with the formation of the state Coalition for Lesbian and Gay Rights in 1985. The coalition's annual conferences, along with the lesbian and gay newspaper Out in the Mountains, which began publication in 1986, were important in promoting the cause. Their efforts found a receptive audience in the pervasively liberal Vermont political establishment. They first bore legislative fruit with the enactment of a wide-ranging "sexual orientation" anti-discrimination law in 1992.

Around the same time, the Vermont Law School began to hold annual conferences on "Sexual Orientation and the Law," where gay and lesbian attorneys and activists networked. Also in the early nineties, a number of prominent employers in the state, of which Ben & Jerry's Ice Cream is only the best known, began to offer domestic partnership benefits. The state of Vermont took this step in 1991. The town of Burlington followed in 1993, and the town of Middlebury in 1995.

The second big legal victory for the gay community came in the courts, with significant assistance from Gay & Lesbian Advocates & Defenders (GLAD), a Boston law firm active across New England. In a landmark decision in 1993, the Vermont supreme court held that existing adoption law permitted "second-parent" adoptions by same-sex partners. In 1995, the legislature amended the adoption code to make this explicit (although it did so under the rubric of "unmarried" persons, rather than specifying same-sex partners).

Vermont, of course, was not the only state where the gay lobby was making headway. In Hawaii, attempts to legalize same-sex marriage were foiled when the state legislature voted in April 1997 to put a state constitutional amendment reaffirming traditional marriage on the ballot. The amendment ultimately passed, but in the meantime, on July 22, 1997, three homosexual couples filed suit in Vermont claiming that the "common benefits clause" of the state constitution entitled them to full coverage under the marriage statute. The suit, Baker v. Vermont, was announced online jointly by GLAD and the New York-based Lambda Legal Defense and Education Fund. Lambda had been co-counsel in a similar suit in Hawaii; GLAD became co-counsel in Vermont.

In December 1999, the Vermont supreme court—pointing to the enactment of the anti-discrimination law and the revised adoption code—ruled for the plaintiffs. Under the Vermont constitution, the court held, committed same-sex couples must be given the same legal benefits, protections, and responsibilities as married couples. The court left it to the legislature, however, to decide how to accomplish this.

To grasp what it means to "leave something to the legislature" in Vermont, one has to appreciate certain logistical realities. There are 150 representatives and 30 senators—none of whom, except the Senate president and the speaker of the House, has an office. To reach a legislator, you leave a message with the sergeant at arms or call the legislator at home. Each committee chairman gets a clerk and a committee room, but the typical committee room can hold the committee, one witness, and 5 to 10 chairs. Legislators have no personal staff; for drafting bills, they rely on a pool of staff attorneys, as well as on research and drafts supplied by various lobbies.

Legislators, nonetheless, are accountable to the voters as appointed justices are not—and in the aftermath of the Baker decision, polls showed 52 percent of Vermonters disagreed with the court. The governor, Democrat Howard Dean, declared himself "uncomfortable" with same-sex marriage, but "committed" to equal rights; his Commission on Women had recently honored two of the lesbian plaintiffs. Given the climate of opinion, the speaker of the House and president of the Senate—although both were Democrats, and on the record in favor of same-sex marriage—deferred to their judiciary committees to fashion the legislation suggested by the court. Both committees were headed by well-meaning liberals with vice chairmen eager to move the issue forward.

Both committees voted against legalizing same-sex "marriage," as did the full House. Having thus "taken marriage off the table," they proceeded to explore the option of same-sex "civil unions." For most liberals (in both parties) who had dominated state politics for a generation, this new terminology offered the perfect means of complying with the court's ruling. Conservatives had a much harder task: to stop either the courts or the legislature from going further down the path of mainstreaming homosexuality. As in Hawaii, the only means of doing this was a constitutional amendment.

The House committee held its hearings first, in January and February. Some sessions, at the statehouse, were the usual parade of scheduled speakers; others, held at various locations, were an opportunity for ordinary citizens to speak.

Those testifying in favor of same-sex unions included members of the Dean administration (the commerce secretary assured the committee that civil unions would have no impact on tourism, and the insurance commissioner gave similar assurances on benefits issues), Vermont Law School professors, a plethora of psychiatrists, social workers, and public health personnel, and a representative from Blue Cross-Blue Shield, who said his firm would obey the law. "Progressive" business people chimed in with a newspaper ad in favor of civil unions.

The proponents' arguments—all of which were present or implicit in the court's ruling in Baker—were of four main types: procedural, factual, moral, and legal.

The procedural claim was that the court had spoken, and the legislature should obey. Some argued that the court was the official interpreter of the constitution, and the legislature should defer as a matter of principle. Others argued pragmatically that if the legislature did not give the court what it demanded, the court (which had taken the unusual step of keeping the case open before it) might do something worse. This was a powerful threat.

The factual claim was that many lesbians and gays in Vermont have committed relationships and are raising children. They work hard, pay taxes, and so forth. Extending marital benefits, protections, and responsibilities to them would strengthen Vermont.

The moral claim was that sexual orientation is irrelevant to marriage, and what people do sexually is purely a private matter that is nobody's business. The essence of marriage is love, commitment, trust, and forgiveness, as one senator put it. The social institution of marriage is intended to encourage fidelity and family stability.

Finally, the legal argument was that the Vermont constitution is committed to inclusion; that pursuing equality and fighting discrimination are the heart of Vermont's political tradition.

The uniformly liberal press repeated these arguments endlessly. The AP reporter assigned to the story, Ross Sneyd, had served on the board of Out in the Mountains. Reporters and editorial writers for the Rutland Herald and Burlington Free Press attacked the Roman Catholic Church and caricatured civil union opponents as bigots.

As the debate unfolded, supporters of civil unions changed their tactics, morphing from liberal reformers advancing the rights of individuals into Burke-quoting conservatives upholding the rule of law. By their account, the people of Vermont had become a tyrannical majority, and the defenders of traditional marriage were radicals who wanted to yield to mob rule.

But what about the opponents of civil unions? Consider their state of organization on December 20, 1999, the day the Supreme Court handed down its decision in Baker.

Churches were the primary locus of opposition, but they were not, and did not aspire to be, political players. Nor did the opposition enjoy an organizational base in pre-existing public policy groups. Vermont had no Catholic Conference or family policy council, not even a tiny chapter of some national pro-marriage organization. There were some pro-life groups, and some supporters of school choice, all of them out of favor with the legislature. There was only one state think tank, the Ethan Allen Institute, a critic of judicial activism.

To fill the gap, a secular citizens group, Take It to the People (TIP), had been formed in 1998 in response to the filing of the Baker suit. TIP and its sympathizers generated amicus briefs in support of the marriage law. They put up booths at state fairs. And they held their first big fund-raising dinner in November 1999—only a month before the court spoke.

Neither TIP nor the churches had a regular presence at the statehouse. As a result, when the legislative session opened in January 2000, legislators and their staffs saw TIP as a total stranger to the process and a sinister intruder. The fact that TIP was calling for a pro-marriage constitutional amendment strained matters further. TIP hired William Shouldice & Associates, a top-notch lobbying firm—but it did so only in February, long after the other side had hired the comparable firm of Kimball, Sherman & Ellis.

Despite the odds, TIP and its religious allies mobilized significant opposition to civil unions. They chose articulate spokesmen and turned out large crowds for two rallies at the statehouse. The first of the citizen hearings, held in Montpelier during a snowstorm, drew an estimated 1,200 people, and the second, a week later, drew 1,800, according to the Burlington Free Press. A New York Times reporter likened the turnout to 90,000 citizens showing up for a rally in Albany.

Twenty-five thousand Vermonters signed petitions in support of a pro-marriage constitutional amendment, and thousands more contacted public officials, an unusual outpouring in a state with only 600,000 people. Public forums and Vermont Interactive Television hearings were held around the state, and supporters of traditional marriage made a serious showing at these events. The bishop of the Roman Catholic diocese of Burlington, Kenneth Angell, became a symbol of resistance to civil unions. Political leaders courted Bishop Angell, but he stood firm.

This popular mobilization began to be felt in the House of Representatives when a bipartisan Traditional Marriage Caucus was organized with 68 members. Its leaders were Democrat Bobby Starr and Republican George Schiavone. The senior member of the House and chairman of the Ways and Means Committee, Democrat Oreste Valsangiacomo, enthusiastically supported the caucus, as did the Republican leaders. But by this point the House Judiciary Committee had unanimously endorsed a bill creating civil unions, and on March 2 the bill was reported out.

The speaker was eager to speed the legislation to the floor, but Valsangiacomo insisted that his committee, too, hold hearings. The speaker and judiciary chairman refused, agreeing only to postpone the vote a week while town meetings were held across the state. Some towns had the marriage issue on their agendas. In order not to look blatantly uninterested in the opinions of their constituents, House leaders put off the vote.

On Tuesday, March 7, while the rest of the country was caught up in the presidential primaries, Vermonters gathered in town meetings and held impassioned debates. More than 50 towns discussed marriage or same-sex benefits. The results, according to the Rutland Herald: No town supported same-sex "marriage," and fewer than 10 supported same-sex benefits.

This development—trumpeted by the Traditional Marriage Caucus—shocked the legislature. Nevertheless, the speaker pushed ahead. After two days of floor debate, in which all significant amendments were defeated, the civil unions bill passed the House by a vote of 76 to 69.

The bill moved immediately to the Senate Judiciary Committee, which held hearings for three weeks. Again, there were many witnesses. Under pressure, the committee agreed to allow a pro-marriage constitutional amendment to come to the Senate floor, but its supporters on the committee were unable to agree on how the amendment should be worded, and it went to the floor without the endorsement of the committee. As for the civil unions bill, the committee endorsed the House version with the addition of a token religious exemption and sent it to the Senate floor by a vote of 4 to 2.

During this phase of the debate, TIP prepared four television ads. The two top stations, WCAX-3 and WPTZ-5, both refused to air them, and they were shown only on two minor cable channels.

Once the amendment and bill arrived on the floor, many senators deplored the speed of the process, but only a few were willing to speak out against civil unions. The New York Times noted that "no one spoke forcefully against civil unions." The same could not be said of civil unions' supporters. In a flight of anti-populist liberal rhetoric, majority leader Richard McCormack intoned, "Shouldn't the majority rule? Not in America!" The opponents of civil unions were "theocrats," he said, who, if they could, would exile Jews and excommunicate Episcopalians. Senate president pro tem Peter Shumlin called the vote "a choice between bigotry and belonging, between callousness and compassion."

Senate leaders only pretended to give a pro-marriage constitutional amendment a chance. First they brought to the floor an amendment defining marriage as the union of a man and a woman but not overruling Baker; this failed 13 to 17, falling far short of the two-thirds needed. Then they brought to the floor an amendment affirming traditional marriage and directly overruling Baker; a procedural vote to make this the last amendment the Senate would consider passed easily, 27 to 3, as politically vulnerable senators seized the opportunity to "cast a vote for marriage"—while on the substance, this amendment also failed, garnering just 9 votes. As for the civil unions bill, all the Democrats and 2 Republicans voted yea, for a Senate tally of 19 to 11. The House concurred, 79 to 68.

At 1:30 p.m. on April 26, Governor Dean, without fanfare or photo op and alone with his staff, signed the civil unions bill into law. Only then did his staff summon the sponsors and key players. At Dean's weekly press conference at 2:00 p.m., they were surprised to learn that he had already signed the bill.

The Washington Post online quoted Dean as calling the law "a courageous and powerful statement about who we are in the state of Vermont," a statement that "speaks to the heart of this state, and certainly to my heart." He had avoided a public signing ceremony, the governor explained, in order to "start the healing." Signing ceremonies suggest celebration, he said, and given the bad feelings the issue had aroused, why celebrate? But to some, the maneuver suggested less healing than hiding. The press and the law's champions were furious. Jokes flowed about "Howard the Coward."

Since the signing, polls have continued to show opinion divided. An April 2000 Vermont Poll found 51 percent in favor of a pro-marriage constitutional amendment, with 42 percent opposed. Governor Dean, who is up for reelection this year, understands this. So do those who will be working to put new faces in the legislature.

On May 9, the attorneys in Baker announced they would drop their suit. The announcement was issued from the GLAD office in Boston by GLAD attorney Mary Bonauto and Vermont attorneys Susan Murray and Beth Robinson. Said Murray, "As much as we think the Baker decision required the legislature to include same-sex couples in the marriage laws, we recognize that Vermonters need time to talk, consider the civil union law, and come back together as a state."

Bonauto was less conciliatory. "We hope some states and private parties will respect civil unions formed in Vermont," she said. "In other instances, litigation will be necessary to settle the question of whether a civil union or some part of it is valid outside Vermont." She concluded, "Securing full equality involves a long-term civil rights struggle. It's time for people in other states to look at the Vermont model and do the same kind of grass-roots groundwork so they can pick up where Vermont left off." Those are fighting words. Expect GLAD to be filing suits throughout New England.

Anyone who still affirms that marriage is the union of a man and a woman, meanwhile, is left asking: Are Vermont's leaders mired in the past, blindly promoting a sexual revolution about which many Americans have long since had second thoughts—or are they the vanguard, a sign of things to come? ®

By David Orgon Coolidge