Once again the Five Supreme Legislators have spoken, in a decision that goes beyond any holding by any state supreme court in the country. This time the Court applied a constitutional provision in an imaginative way that no one could have imagined even five years ago.

The Court's holding in "the Gay Marriage Case" was this: "the State is constitutionally required to extend to same-sex couples the common benefits and protections that flow from marriage under Vermont law." This was not enough for Justice Denise Johnson, who held out for declaring that the gay and lesbian plaintiffs not only had to enjoy equal benefits, but also were constitutionally entitled to be "married".

The Court's decision is something of a mixed bag. First, four of the five Justices stopped short, for the time being, of discovering in the 1777 Constitution the existence of a "right" for same-sex couples to marry. This had an enormous practical effect, in that the decision does not invite same-sex couples to visit Vermont, get married, and return to their home states to demand the privileges and benefits of marriage. And unlike the Brigham case of 1997, the Court thankfully did not attempt to dress this decision up with falsified citations and bogus history.

Having said that, the Gay Marriage case exhibits all the other defects of the Court of What's Happenin' Now jurisprudence. Chief among them is the Court's eagerness to inject its own contemporary content into 18th century phrases to mandate actions which were hitherto inconceivable. "The challenge", writes Chief Justice Amestoy, "is to remain faithful to that [18thcentury] historical ideal, while addressing contemporary issues that the framers undoubtedly could never have imagined." This "challenge" is an irresistible invitation to the Court to once again become a supreme legislature.

Historically, the clear purpose of the "common benefits" clause, as it first appeared in the Virginia Bill of Rights (1776) and then in our constitution of 1777, was to prevent a little gang of insiders from ripping off the good people of the state. Of great concern to the framers was the British example of hereditary privilege, and the possibility of favored cronies getting the government to grant them lucrative monopolies in banking, trade, shipping, toll bridges and the like.

The marriage law, however, was not some special deal to allow a politically connected few to enjoy marriage with all its benefits, while everyone else was forced to live in sin. It was always a general law: any man and a woman could obtain a license to marry. To be faithful to the words and intent of the constitution, the Court should have said "the law allows any man to marry a willing woman, and any woman to marry a willing man, providing they are of age, competent, unmarried, and not close relatives. This is a benefit common for all. Just because these plaintiffs don't choose to marry somebody of the opposite sex is their preference, but it's not a cause for constitutional complaint. If our elected legislature decides that some other collection of people should enjoy the privileges and benefits associated with
'marriage', it will amend the law accordingly. Court adjourned." 

The Court, however, shied from this politically incorrect construction. Instead it explained how the legislature had undercut the rationale of the marriage statute by approving lesbian adoptions. The Court went on to announce a new law, in its opinion "premised on an appropriate and overriding public interest", bearing "a just and reasonable relation to the governmental objective", "recognizing our common humanity". The legislature was instructed to fill in the details.

Until recently courts presumed that legislatures acted on a rational basis, and a court could overturn their acts only when they flew in the face of an explicit constitutional provision, or met the difficult test of being arbitrary and capricious. Now our Five Supreme Legislators determine not merely what is arbitrary and capricious, but what is appropriate, overriding, just, reasonable, and humane. What if the legislature declines to adopt a domestic partnership law satisfactory to the Court? Then, says the Chief Justice darkly, the Gay Marriage plaintiffs can come back and reopen the question of "marriage" that the Court seems to have settled.

This is a powerful threat. If the legislature doesn't act to the Court's satisfaction, the Court is saying that it just might draw new and expanded boundaries for "marriage" to meet its own ideas of good legislation.

There is little doubt but what a majority of our legislators lack the will to defy this latest judicial mandate. They proved that when they reelected the Brigham Three last spring. The Court, Justice Johnson excepted, may be satisfied with a domestic partnership law for gays and lesbians, at least until the common benefits provided in it are sought by same-sex heterosexual couples, brothers and sisters, bisexual foursomes, polygamists, polyandrists, and who knows what, all of whom may see the Green Mountain State as a new land of opportunity for asserting our common humanity, with full enjoyment of the privileges and benefits of marriage...

John McClaughry is the President of the Ethan Allen Institute.

(www.ethanallen.org).

This commentary is reprinted from the Ethan Allen Letter, January 2000.