Vermont Court Destroys A Constitutional Principle While Creating New "Rights"
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?
A Matter of "Interpretation"
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."
What intellectual fun all of this is! It explains why first-year
law school is so exhilarating: because it consists of playing common-law
judge, which in turn consists of playing king—devising, out of the brilliance
of one’s own mind, those laws that ought to govern mankind. How exciting!
And no wonder so many law students, having drunk at this intoxicating well,
aspire for the rest of their lives to be judges!
Now compare that to the words of John Dooley (now Vermont Justice Dooley)
taken from remarks made at a symposium held at the Eagleton Institute of
Politics in 1988. Mr. Dooley is explaining how he would push the constitutional
envelope to obtain some desired result:
A more difficult way to do it right ...is to wander into the
never-never land and produce a good result that will stand the test of
time. This may retard the initial development, but the law goes in fads,
so once one of us does the work for our state it is picked up in the next
state and its amazing how quickly it can come around...
That is essentially the formula for government by judiciary. The court
effectively amends the constitution. Objecting citizens are then forced
to mount a political offensive to reverse the change by amendment. If the
objecting citizenry does not act, then they are considered to have
If the development of state constitutional doctrine gets in the way
of that—and remember in my state we are interpreting an 18th
century document...if we are not on the cutting edge of future needs...
then I think the people of our state should and will say, "well that was
a nice little exercise you were engaged in but it is not relevant to this
world, and through their ability to amend their constitutions, which they
can do fairly easily in our states, they will change it."
The Plaintiffs’ Legal Strategy
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 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.
Taking Liberties With Constitutional Language
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
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.
Understanding Article 7
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 7th 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 (223 years old) is reasonably straightforward and understandable.
There are two principles asserted—that public authority should act for
the common good and not for the enrichment of a few, or the advantage of
some faction, secondly, that government is based on the consent of the
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.
Vermont's Early History
The second half of the 18th 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.
Vermont Constitution Relates To Other State Constitutions
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:
VII. Government is instituted for the common good; for
the protection, safety, prosperity, and happiness of the people; and not
for the profit, honor, or private interest of any one man, family, or class
of men: Therefore the people alone have all incontestable unalienable,
and indefeasible right to institute government; and to reform, alter, or
totally change the same, when their protection, safety, prosperity, and
happiness require it.
The New Hampshire constitution from the same period contains virtually
the same article as the Vermont constitution in its section declaring rights.
The New Hampshire constitution affixes a name to each of its articles whereas
the Vermont and Massachusetts constitution are only identified by a number.
New Hampshire's name for its Article 10 is the "Right of Revolution" and
is quoted verbatim as follows:
[Art.] 10 [Right of Revolution]
The Virginia Declaration of Rights from the same period contains two separate
sections expressing the same general principles as Vermont Article 7. These
are sections 3 and 4 and are quoted verbatim as follows:
Government being instituted for the common benefit, protection, and
security, of the whole community, and not for the private interest or emolument
of any one man, family or class of men; therefore, whenever the ends of
government are perverted, and public liberty manifestly endangered, and
all other means of redress are ineffectual, the people may, and of right
ought to reform the old, or establish a new government. The doctrine of
nonresistance against arbitrary power, and oppression, is absurd, slavish,
and destructive of the good and happiness of mankind.
Sec. 3 That government is, or ought to be, instituted
for the common benefit, protection, and security of the people, nation,
or community; of all the various modes and forms of government, that is
best which is capable of producing the greatest degree of happiness and
safety and is most effectually secured against the danger of maladministration;
and that, when any government shall be found inadequate or contrary to
these purposes, a majority of the community hath an indubitable, inalienable,
and indefeasible right to reform, alter, or abolish it, in such manner
as shall be judged most conducive to the public weal.
Baker Court Interpretation of Article 7
Sec. 4 That no man, or set of men, are entitled to exclusive
or separate emoluments or privileges from the community, but in consideration
of public services; which, not being descendible, neither ought the offices
of magistrate, legislator, or judge to be hereditary.
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.
Baker Court Jettisons Previously Used Equal Protection Framework
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.
Baker Court Creates New Standard For This Case
The Baker court cited several cases where the Vermont Supreme
Court has not used the multi-tier federal standard. None of these were
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".
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 Constitution Belongs To The People of Vermont
The perennial question is not about altering constitutions but who should
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.