The civil union bill is now law in Vermont. A civil union of same-sex couples is identical to heterosexual marriage in all but name. Proponents of this legislation—the Governor, a majority of senators and representatives—say they were bound by the Vermont Supreme Court opinion in Baker v. State to enact civil union legislation. The Supreme Court claims the so-called "common benefit(s) clause" in the 1777 Vermont Constitution makes denial of marriage benefits—not marriage status itself—unconstitutional. How could the Supreme Court reading a 223-year-old document mandate same sex marriage (a.k.a. civil union), a status proscribed by Vermont statute and opposed by a majority of Vermont citizens?

Before considering how the Baker court addressed the plaintiffs’ statutory and constitutional claims, read the words of US Supreme Court Justice Antonin Scalia as quoted from his 1997 book A Matter of Interpretation. Justice Scalia describes the reaction of law students awakening to the "art of interpreting law."

Before discussing the pivotal interpretation of the tactfully named "common benefit(s) clause" an explanation of a part of the plaintiffs’ legal strategy will be helpful. The plaintiffs in Baker made both a statutory and a constitutional claim. The challenge to the current marriage statute cleverly focused on the plaintiffs’ interpretation of the statutes purpose (committed couples of any sexual pairing—the commitment model) and not the legislative intent (union of a man and a woman—the complementarity model). The court rejected the plaintiffs’ statutory claim saying plaintiffs are not entitled to a marriage license under the statutory scheme governing marriage. The court also said that the general intent and spirit of the law is that marriage consists of a union of one man and one woman as husband and wife.

The plaintiffs’ constitutional claim however focuses on the legal structure surrounding marriage and not marriage per se. At first this seems odd, until one understands there is no explicit right to marriage found in either the Vermont or the U.S. Constitution. The right to marriage that has developed is held to be rooted in the traditions and conscience of the American people and is embodied in the language of several U.S. Supreme Court cases. Central to the legal definition of marriage rights, the U.S. Supreme Court has held that marriage is a social relation subject to a state's police power (health, safety, morals, general welfare, etc.). This principle was established in Maynard v. Hill (1888) and reaffirmed in Loving v. Virginia (1967).

With the above in mind it is easy to see why the plaintiffs’ primary tactic was to find some attribute of marriage status that can be claimed as a constitutional right. There are certain legal conditions, and advantages that are associated with marriage status having to do with property, wills, etc. The plaintiffs broadly categorize these legal conditions and advantages by calling them benefits. Marriage status itself not being an absolute or enumerated right, if the associated benefits can be declared to be a right then the plaintiffs get marriage (the real goal) by getting the structure affording the legal benefits. Sort of like a hobo named "marriage" hitching a ride on a freight train called "benefits." This tactic however creates a dualism wherein marriage, the social institution, is disembodied from the marriage statutes. The U.S. Supreme Court in Maynard considered the very essence of marriage and described its integrated nature as follows:

...As such it (marriage) is not so much the result of private agreement as of public ordination. In every enlightened government it is preeminently the basis of civil institutions and thus the object of deepest public concern. In this light marriage is more than a contract. It is not a mere matter of pecuniary consideration. It is a great public institution, giving character to our whole civil polity.

Advocates of same-sex marriage achieved a major public relations/political advantage in getting the public to associate the plaintiffs’ claim to "benefits" with a clause in article 7 having the phrase "common benefit" in it. "Common benefit(s)", is the spoken or "shorthand" name by which the clause is generally referred to. The name does not appear in the constitution. "Common benefit(s)" can be misleading in that this spoken name, which has no legal significance, becomes confused with the textual substance of the clause that indeed has legal significance. As one will discern from reading this essay the addition of the single letter ‘s’ subtly alters the meaning of a key phrase. While the Baker court made ample use of the word "benefits" in it's opinion, the court did far more than engage in a parlor game—constitutional scrabble—to alter the meaning of article 7. To underwrite the plaintiffs’ claim the Baker court both invented a "right" and destroyed an eminently sound principle of governance in the bargain! The principle destroyed is that public authority should act for the common good (common benefit). The Baker court instead declared that the "distilled principle" of the common benefit(s) clause is "inclusion." Adhering to the original principle—by a plain reading of the plain language in historical context—would have raised an entirely different set of questions about plaintiffs’ claims for the court to consider. For example, the state defense did not raise any public health or safety concerns and this subject area is not considered in Baker.

The 1999 Baker decision "mandating" that the legislature create statutes granting a host of marriage related benefits to homosexual partners purports to draw its authority from Article 7 of the Vermont constitution. Article 7 is one of twenty-one articles in chapter 1, the body of which comprises the declaration of the rights of the inhabitants of the state of Vermont. Article 7 is virtually unchanged from the original 1777 article. Article 7 is a two-clause article. The first clause establishes reasons why government is instituted—the clause is unique in this regard. The second clause declares that the right to reform or alter government is through the consent of the whole body of people—the "consent" clause. Article 7 quoted verbatim is as follows:

Article 7^th That government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation or community, and not for the particular emolument or advantage of any single man, family, or set of men who are a part only of that community; and that the community hath an indubitable, unalienable, and indefeasible right, to reform or alter government, in such a manner as shall be, by that community, judged most conducive to the public weal.

Article 7 is contemporaneous with three other articles in the Vermont constitution each of them using phrases similar to "common benefit." Each instance of the phrase expresses the same general idea, using a slightly different manner of writing style. Thus article 8 reads "common interest", article 9 reads "common good" and article 20 also reads "common good." The word "emolument," somewhat arcane, simply means any monetary gain that obtains by virtue of social or public position. To understand whom in particular the "single man, family, or set of men" article 7 was originally concerned with as distinct from the "people, nation, or community" recall a well-known bit of Vermont history.

The second half of the 18^th century, the period during which the Vermont constitution was adopted was a time of tumultuous conflict. The French and British nations collided in a lengthy war of empire. The Native American tribes clashed with the French and British as well as the settlers and each other. Possession of the land was at the heart of most of these conflicts.

The territory—organized as land grants was under the control of various royal governors. In 1749 the first governor of New Hampshire, Benning Wentworth issued land grants in what is now Vermont. Governor Wentworth was also a businessman that profited from his official position. The Governor preferred issuing the grants to nearly every Wentworth in the vicinity, assorted relatives, and other influential persons whose favor would be useful. John Wentworth replaced uncle Benning as governor when the latter was permitted to resign to avoid disgrace over shady land transactions.

This was not only the situation in Vermont but throughout the colonies. During the land grant era a relatively few men and families were in possession of huge tracts of land given them by European royalty. These favored and influential families (Wentworths, Penns, Baltimores, Stuyvesants, Rensaeleers, etc.) had great political and economic influence. This was also the formative era for the state constitutions. The circumstances the colonists and settlers found themselves in, as well as the circumstances they left behind in aristocratically dominated Europe, influenced their constitutions.

Thus article 7 was intended to prohibit the government from giving particular consideration to influential individuals and their cronies, business associates, families, or friends. In a broader and far more basic sense, Vermont article 7 and related articles express a well justified concern about political corruption and governmental tyranny. That concern was a foundation of American political thought during the Revolutionary period. The essential principle of the first clause in article 7 is as viable and sound today as it was in 1777. Public authority should act for the common good, and not for the enrichment of a few or the advantage of some faction.

The Vermont constitution was essentially the Pennsylvania constitution. Dr. Thomas Young, who got it from Ben Franklin, gave the document to several prominent green mountain area settlers. It was Dr. Young who also suggested the name Vermont. This constitutional cross-pollination was not unique to Vermont and therefore many of the state constitutions of the era are very closely related. An often noted difference in the Vermont constitution of 1777 as compared to the Pennsylvania version was the addition of an article forbidding any man to be held in bondage against his will. Within a decade however Vermont was no longer unique in that regard. Pennsylvania, Massachusetts, Connecticut, Rhode Island, New Hampshire, New York, and New Jersey soon abolished slavery as well. One can discern the meaning of particular articles in the Vermont constitution from reading similar articles in other state constitutions of the period. These articles express the same principles but are crafted with slightly different language.

The Massachusetts constitution from the same period contains a virtually identical article as the Vermont constitution in its section declaring rights. The language is somewhat less arcane, the article (also number seven) is quoted verbatim as follows:

So, if article 7 means that public authority should act for the common good and not the benefit of factions, how did the Baker court decide it was unconstitutional not to provide the benefits of marriage to same sex couples? On the surface the answer is easy—the Baker court does not share this particular "construction" of article 7. There are several schools/methods of interpretive technique. They have names like originalism, textualism, structuralism, and evolutionary or teleological (goal oriented) methodology. Without going into detail explaining and differentiating these methods one can readily surmise from their names that the interpretation of Article 7 in this essay relies on extracting the original principle from the text in the light of history. That is by examining the plain meaning conveyed by the text (textualism), the historical circumstances (originalism), as well as similar key phrases and words in other articles of the same and related documents (structuralism).

Article 7, interpreted in this manner is an eminently sound principle of governance. This principle would burden the plaintiffs with the task of demonstrating how a redefinition of marriage would contribute to the common good. The plaintiffs tactic however was to argue from a "benefit(s) denied" perspective. A court receptive to the plaintiffs’ goals would need a construction of article 7 that is consistent with those goals.

Assume for a moment one is the Baker court, what would one do? Well first one would dismiss the text, one would claim one could not "recapture a particular word or phrase as understood by a generation more than two centuries removed from our own." As regards history one would assert that "an immersion in the culture and history of the past (is) more suited to the work of professional historians than courts or lawyers." These italicized statements are taken directly from the majority opinion in Baker. After dismissing the text of article 7 and disconnecting it from history the clause is now conveniently rendered vague. The freedom to interpret the clause to suit the goal—a right to marriage benefits—is now at hand. The court has essentially re-written the constitution. Equally important, the court has destroyed the original meaning of the constitution—your constitution. By construing article 7 as radically egalitarian—a proviso for "benefits for all"—the courts analysis of plaintiffs claims will be radically different than that called for by a "common good" interpretation of the clause.

In analyzing the plaintiffs’ claims the court asserts that the core values of the transformed clause are "inclusion" and the elimination of "artificial governmental preferments and advantages." Gone is any mention of the common good, common interest, or common benefit. Thus all the arguments offered by the state (defense) for the policy preferences of the legislature toward married heterosexual couples cannot surmount the barrier of this radically egalitarian "benefit(s) clause" and are dispensed with. If the court had applied the "common good" consideration central to article 7 then their analysis would consider the question of whether the marriage statutes served this (common good) purpose. Because the marriage statutes are intended to favor certain classifications of people and not others, they cannot meet the standard of radical equality (inclusion) fashioned by the Baker court's interpretation of article 7.

The Baker court's approach to fashioning an insurmountable barrier for legislative marriage policy preferences has two components. The first is to fashion a radically egalitarian interpretation of article 7. The second is to jettison its previous standard of equal protection analysis and to fashion a new version for the Baker case. The U.S. Supreme court has developed standards or tests for classifying people in order to determine if a particular statute discriminates unfairly. Certain classifications require "strict scrutiny" (of the legislative goal) by the court. Classification by race or ethnicity—an immutable characteristic—is the highest standard and requires extraordinary justification hence strict scrutiny. Classification based on sex or legitimacy is next highest—requiring intermediate scrutiny. Classification by wealth levels is lower still—requiring only a rational basis be established e.g. graduated tax rates. Classification by sexual preference is at the bottom of this scale, not a class requiring heightened scrutiny at all. Where no enhanced scrutiny is required, courts are broadly deferential to the legislature. The Baker court rejected this system of standards. The abandoned equal protection framework is a balanced system. It is designed both to protect specific groups of people (identifiable by a three-prong test) as well as protect the people's right to control their own destiny from undue court interference. The abandoned standard is at the heart of the separation of powers doctrine. To put it bluntly, the federal standard prevents courts from pouring "equal protection"—like ketchup—over an issue to take basic cultural decisions out of the hands of the people.

The Baker court cited several cases where the Vermont Supreme Court has not used the multi-tier federal standard. None of these were civil rights cases and all of them are spectacularly feeble when offered as a precedent for jettisoning the standard in the case at bar. In one case—Ludlow Supermarkets (1982), large and small grocery stores were being treated differently with regard to a Sunday closing law. Another case involved a fire department revenue-bond assessment while a third case cited involved a fence repair statute. None of these cases have any material moral content. Also, since Ludlow the Vermont court's decisions have used the federal standard—at least until Baker.

Instead of the federal standard the Baker court substituted a single standard it deemed to be "reflective of the inclusionary principle at the core of the common benefit(s) clause." In essence, the single standard really amounts to court scrutiny of the strictest kind. According to the Baker court, chief among the broad principles expressed by the framers in the "common benefit(s)" clause is the "principle of inclusion." With this newly found "principle" in hand the Baker court said: "Our concern here is with delineating, not with labeling the excluded class as "suspect," "quasi-suspect," or "non-suspect" for purposes of determining different levels of judicial scrutiny." In other words, because the "common benefit(s)" clause is so all inclusive, so opposed to classifications of any kind, as well as radically egalitarian at its core, the court is commanded by it to fore-go the federal equal protection framework. It is at this point in particular, that one realizes that the Baker court subscribes to the theory that words in the constitution exist possessing a reality independent of the objective reality to which they refer.

After reading the Baker court's hyperbolic description of the framers intentions as supposedly embodied in the "common benefit(s)" clause one cannot help but wonder if Dr. Thomas Young, the man who suggested the name Vermont, should have suggested Camelot instead. The court asserts that the "common benefit(s)" clause is more powerful, and offers more protections than the U.S. Constitution's fourteenth amendment (1868). The U.S. fourteenth amendment contains specific equal protection language, Vermont article 7 does not. Vermont article 7 has the word "protection" in it, as well as the word "security" and both of these answer to the opening preamble in article 7 which asserts the reasons why government is instituted. For the Baker court to assert that the "common benefit(s)" clause is more powerful than the U.S. fourteenth amendment, given that they have eschewed both textual and historical analysis of article 7 in favor of a "distilled principle" (inclusion) is contradictory at minimum. At one point in their opinion the court refers the reader to a book by P. Brest entitled The Misconceived Quest for the Original Understanding. One thing is certain however, and that is when the Vermont court used article 7 and not the U.S. Constitution fourteenth amendment as the basis for its analysis, it precluded Vermont citizens from appealing the case to the U.S. Supreme Court.

After having stated that searching for origins as regards article 7 is more suited to "professional historians" (conveniently) the same court somehow develops the requisite historical understanding when it comes to applying the law to the judgment in the case at hand. The court now tells us... "in assessing the relative weights of competing interests courts must look to the history and traditions from which the state developed as well as those from which it broke and not to merely personal notions". One could ask—if the Baker court says, in essence, that article 7 is historically difficult to understand (a minor task), then how is it possible for the court to know the "history and traditions from which the state developed as well as those from which it broke"? The latter is a much larger and highly subjective task! My answer is...it’s not possible to have it both ways! Thus the Baker court has substituted it's will in place of the rule of law. It has "discovered a right" where none existed and destroyed a sound constitutional principle in the process.

The perennial question is not about altering constitutions but who should do so.

Alexander Hamilton answered this in Federalist #78 when he said regarding the U.S. constitution: "Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding on themselves collectively, as well as individually; and no presumption or even knowledge of their sentiment can warrant their representatives in a departure from it prior to such an act."

Harking back to Justice Scalia’s observations about first-year law school. When law students "play king" the result is an academic exercise. When Supreme Court justices do the same the result is the diminishing of self-government and the prerogative of the people to construct the civil order for the common good—ironically the true right that is referred to in article 7. The Baker decision should be reversed with an amendment to the Vermont constitution that, at minimum, clarifies the intent of article 7 and restores its eminently sound original meaning. The legislature was free to create civil-union legislation 223 years ago, as it has been ever since without having to use the Baker farce as a rationale. The legislature is responsible to the people and the court is not. An amendment would restore integrity to both the separation of powers doctrine and the legislative process. Civil-union advocates could take their case to their representatives like other citizens—similarly situated—in a constitutional republic.

The Baker court clearly functioned as the author of result oriented, end justifies means jurisprudence. The ironic part of this is that it is article 7 itself that is one of the safeguards against courts effectively sitting as constitutional conventions. It is even more ironic that the true meaning of article 7 asserts claims of the community against factions whose political influence far exceeds their numbers. The anti-corruption principles that are at the true root of article 7 apply to the corruption of the language and intent of the Vermont constitution. That a few influential men and women—the judges in Baker—wielding immense unchecked power, operating under the guise of "equal protection," readily coerce the majority, adds the final irony to the perversion of article 7.