Common Benefits
MONTPELIER, Vermont — This small town, one of the most difficult state capitals for American schoolchildren to remember, could become the birthplace of same-sex marriage.
It almost happened this past December 20. In Baker vs. State of Vermont, all the state’s Supreme Court justices appeared to support the claim made by three same-sex couples that they should have the legal right to a marriage license. But most of the justices were reluctant to impose that claim by fiat, preferring to refer the matter to the state legislature.
Instead, the court ruled that the legislature must offer same-sex couples “the same benefits and protections afforded by Vermont law to married opposite-sex couples.” Without telling the legislature exactly what to do, the justices in their decision point to the possibility of offering “domestic partnership”—a status a government grants to unmarried couples that guarantees them the material benefits of marriage without calling their association a “marriage.” In other words, domestic partnership is marriage without the title.
The Vermont court, acknowledging that their ruling amounts to “decidedly new doctrine,” gave the legislature “a reasonable amount of time” to implement the decision. But the justices threatened, in the event the legislature does not comply, to hear a petition from the plaintiffs for an injunction that would grant them a marriage license.
For same-sex marriage supporters, the ruling was a partial victory, but not everything they wanted. Opponents of same-sex marriage felt that they had dodged a bullet, for now. (One justice had wanted to make an immediate declaration that same-sex marriage is a legal right, and castigated her colleagues for “abdicat[ing] this Court’s constitutional duty to redress violations of constitutional rights.”)
As Catholic World Report went to press, the Vermont General Assembly was considering several proposed bills, none of which appears to have gained the support that will be necessary to ensure passage. Most observers believe the legislature will opt for some sort of domestic partnership arrangement.
But even an “everything-but” bill—a measure that would give same-sex couples all the legal rights of marriage without the actual title—would be vulnerable to a legal challenge brought by the advocates of same-sex marriage, who argue that the ability to invoke the very title “marriage” is itself a benefit. The Vermont Supreme Court noted that possibility, but refused to comment further upon it—thus virtually furnishing an invitation for a further challenge if the legislature does not grant same-sex couples the right to marriage outright.
“I guess we’re going to have to wait and see,” said Mary Bonauto, civil rights project director at Gay and Lesbian Advocates and Defenders in Boston, Massachusetts. “From our perspective, the only thing that’s going to satisfy the court’s mandate is marriage.”
While the outcome is still unclear, Vermont for now seems to afford the likeliest prospects for legal recognition of same-sex marriage, among the several US states that have considered or will likely soon consider that possibility.
“It’s kind of like you’ve got a dam and the water’s rising,” said David Coolidge, director of the Marriage Project, an organization based at the Columbus School of Law of Catholic University of America in Washington DC, which favors traditional marriage. “And the question is: Is it going to recede, is it going to stop, or is it going to breach?”
Taking sides
Same-sex marriage and its companion issue, domestic partnerships, have now become a political fault line in the Green Mountain State.
On either side of the divide have stood vocal activists. For those in favor of same-sex partnerships there is the Vermont Freedom to Marry Task Force, which likens the prohibition on same-sex marriage to the old legal acceptance of slavery. Standing against the change in Vermont law is Take It to the People, which bills itself as “Vermont’s Grassroots Coalition for Traditional Marriage.” The latter group is trying to force the legislature to begin the process of amending the state constitution, to nullify the effect of the court ruling. The first step in that amendment process would be for the legislature to send the question before the people, in a public referendum.
When the Vermont House Judiciary Committee held its first public hearing on the amendment question, on January 25, about 1,200 people showed up, despite a snowstorm that hit earlier in the day. An estimated 500 people could not even get into the overflowing State House; 115 citizens testified.
For the second public hearing a week later, Bishop Kenneth Angell, the Roman Catholic bishop of Burlington, whose diocese covers the whole state, joined with an Evangelical Protestant minister to organize a rally against same-sex marriage on the State House steps. Somewhere between 1,000 and 1,800 people attended the rally, and about 1,000 more went on to attend the hearing. Some 110 testified. This was believed to be the largest gathering ever at the Vermont State House.
(Adding to the local color of the political battle in Vermont has been the arrival of Randall Terry, the founder of the anti-abortion group Operation Rescue, who has moved his radio show from New York to Burlington to fight same-sex marriage and is vowing to stay “for the duration.” Vermonters are notoriously parochial; octogenarian dairy farmer Fred Tuttle in 1998 waged a successful campaign for the Republican US Senate primary, in part by passing his millionaire opponent, who was originally from Massachusetts, a list of Vermont towns and inviting him to pronounce them. Recognizing that native distrust for outsiders, Take It to the People officials have told Terry he isn’t welcome, and have asked him to go home.)
A public poll in January found that 52 percent of Vermont’s registered voters disagreed with the court’s decision in Baker vs. State, as against 38 percent who agreed. The proposal for a constitutional amendment limiting marriage to one man and one woman won 49-44 percent support (the difference between those two figures was scarcely more than what the pollsters cited as their survey’s margin of error). While the findings of the poll appeared to show that same-sex marriage and domestic partnership are unpopular in Vermont, the margin was narrow enough so that the political balance could easily tilt in the other direction. On the other hand, politicians watch not only for raw numbers, but depth of feeling, and the poll found that only 18 percent of respondents said they “strongly disagreed” with the court’s ruling. Only 6 percent said they “strongly agreed.”
Nor is it certain that the January poll, sponsored by two leading newspapers of the state (the Rutland Herald and the Barre-Montpelier Times Argus) along with a local television station (WCAX-TV Channel 3, a CBS affiliate), gave an accurate assessment of public opinion. Poll results attain credibility through repetition and diversity of pollsters; when there is a large number of different pollsters, taking different surveys and producing similar results, the public can place greater confidence in the numbers those surveys produce. But polls, which are usually conducted by media outlets, are expensive. So polls are not usually repeated on a routine basis, except for the national audience, or in the large metropolitan media markets of states which attract intense national interest (such as Iowa and New Hampshire, where the presidential races begin). Vermont fits none of those categories. So to date, there have been no follow-up polls to confirm or deny the accuracy of those first survey results.
Compromise expected
The muddy political waters reflected in the poll explain in part why most observers expect nothing decisive to come out of the Vermont legislature this year. The state Supreme Court’s decision was announced December 20. Most observers have predicted that the legislature will pass a compromise domestic partnership bill this year.
Any bill would need a majority in the 150-member House before heading to the judiciary committee of the 30-member Senate, where it could be debated and amended by committee members and then taken up by the full Senate. If the Senate made any changes, then the House and Senate together would have to agree on a new version before sending the legislation to the governor, who would have to sign it before it became law. (The governor has endorsed domestic partnership, but not marriage, for same-sex couples.) The House leadership hopes to schedule a vote by March 7, which is Town Meeting Day in Vermont. A final vote in the legislature would not come until spring at the earliest.
Already there are signs of what the final product may look like. On February 9, the Vermont House Judiciary Committee voted 8-3 against same-sex marriage, but in favor of a domestic-partnership bill that would provide exactly the same legal benefits. Under the terms of this bill, same-sex couples could obtain a domestic partnership license from town and city clerks, and then have their union “solemnized and certified” by a judge, justice of the peace, or cleric. If they wanted to end their partnership, they could go to family court and get the equivalent of a divorce. The new status promises the same benefits as marriage, without the “Mrs.”
Alternatives to the domestic partnership legislation do not appear to have adequate political support. In theory the Vermont legislature could simply ignore the court’s decision, and do nothing, but then the state Supreme Court would probably make good on its threat to grant marriage licenses to the same-sex couples who brought the lawsuit. The legislature could also vote to abolish civil marriage altogether, but that radical idea has very little support. A bill that would allow same-sex marriage was filed in the House, but it has only six sponsors. All 11 members of the House judiciary committee are sympathetic to same-sex marriage, but they voted down the proposal on the grounds that the bill could not pass—at least not this year. On the other side of the divide, a bill prohibiting same-sex marriage and refusing to recognize such unions when they are contracted in other states has 57 sponsors in the House, but that is still 19 votes short of the 76 needed for passage. And even if that bill passed, such a law would presumably be vulnerable to a constitutional challenge, since the state Supreme Court has already found that the current system violates the state Constitution.
The only outright victory possible for those who do not want the government to sanction same-sex relationships would have to come through a constitutional amendment, but that looks unlikely, too. Vermont’s constitution makes amendments difficult to pass. The process requires a two-thirds vote in the state Senate, followed by a majority vote in the state House of Representatives, followed by a confirming majority vote in both houses during the next legislative session (in this case, beginning in 2001) before the proposed amendment could go to the voters for final approval. If a proposed constitutional amendment does not pass the Senate and House this year, it could not even be taken up again until 2003, because the state constitution only allows the legislature to start the process during every other two-year legislative session. (This session happens to be an amendment session; the 2001-2002 session is not.)
But all that is probably moot, in any case, because supporters of the proposed amendment do not appear to have the votes they would need. Already 10 state senators have announced their opposition to an amendment; if just one more senator joins that opposition, the amendment could not even get out of the Senate.
Why Vermont?
Vermont, the second smallest and whitest state in America, is best known for skiing and maple syrup. It has a reputation for being liberal and at least a bit eccentric. Its two US senators (one Democrat, one Republican) are liberals. Its lone US representative, Bernie Sanders, is a Socialist, one of only two independents in the US Congress. Its state auditor, a long shot in the US Senate Democratic primary this year, is believed to be the only openly homosexual official elected to a statewide position anywhere in the country. The state includes sexual orientation in its anti-discrimination statutes. It includes homosexuals among groups protected in its “hate-motivated crimes” law (which increases penalties for crimes if they are found to be “maliciously motivated” on account of the victim’s status). Since 1996, Vermont has allowed same-sex couples to adopt children.
In short, this is not exactly the Bible Belt. So Vermont’s reputation as enlightened and progressive makes it prime territory for a challenge to civil laws defining marriage as a more-or-less permanent union between one man and one woman.
Actually, Vermont’s own civil laws do not do that, as the state’s Supreme Court noted in its ruling. So deeply ingrained is the common understanding of the word “marriage” that the state statutes governing it never explicitly define it, and the Baker vs. State decision actually spends 643 words laboriously drawing out the inference, from words like “bride” and “groom,” that marriage in Vermont has been up to now an opposite-sex affair. Such is the nature of the American campaign for legal approval of same-sex unions. Now playing its third major American engagement since 1993 (after Hawaii and Alaska), the same-sex marriage tour has forced people to reconsider fundamental assumptions about perhaps the most fundamental of all social institutions.
In its December ruling, the Vermont Supreme Court acknowledged that the framers of the Vermont Constitution of 1777 did not envision same-sex marriage, but the justices saw their duty as interpreting the “broad principles” of the constitution’s Common Benefits Clause. That Clause, largely based on the Declaration of Rights of Virginia written by George Mason (1725-1792), states:
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 person, family, or set of persons, 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 manner as shall be, by that community, judged most conducive to the public weal.
The “text and history” of the Common Benefits Clause, the court found, “yield no rigid categories or forms of analysis.” Still, the justices concluded that they must weigh laws challenged under the Common Benefits Clause according to “a relatively uniform standard, reflective of the inclusionary principle at its core.”
The court’s majority opinion states:
The concept of equality at the core of the Common Benefits Clause was not the eradication of racial or class distinctions, but rather the elimination of artificial governmental preferments and advantages. The Vermont Constitution would ensure that the law uniformly afforded every Vermonter its benefit, protection, and security so that social and political preeminence would reflect differences of capacity, disposition, and virtue, rather than governmental favor and privilege.
In the court’s judgment, that fundamental premise of the state constitution effectively put the burden on the state government—to prove that any denial of any benefits to anyone “bears a reasonable and just relation to the governmental purpose.” So the court set up a three-part test to judge the validity of the state’s restrictions: whether significant benefits were being conferred; whether the exclusion of some people from obtaining those benefits would promote the government’s goals; and whether “the classification is significantly underinclusive or overinclusive.”
In the United States, it is the attorney general’s duty to defend laws against legal challenges. In Vermont, the attorney general’s main argument was that the state has a right to promote a link between marriage and child-rearing. But the Vermont Supreme Court ruled that it makes no sense to distinguish between same-sex and opposite-sex couples with respect to children when the state explicitly allows same-sex couples to adopt, as it has since 1996.
The attorney general also claimed that recognizing same-sex unions would bring “destabilizing changes” to marriage, without specifying what they might be. Such claims, the court countered, “may be plausible forecasts as to what the future may hold, but cannot reasonably be construed to provide a reasonable and just basis for the statutory exclusion. The State’s conjectures are not, in any event, susceptible to empirical proof before they occur.”
Uncharted legal waters
Indeed, there is no empirical proof of any kind about the consequences of legal recognition for same-sex marriage, because it has never been tried. According to the Lambda Legal Defense and Education Fund, a New York-based organization that supports same-sex marriage, domestic partnership arrangements that approach the legal status of marriage are now the law in Denmark (since 1989), Norway (1993), Greenland (1994), Sweden (1995), Iceland (1996), the Netherlands (1998), and France (1999). Australia and Israel also recognize same-sex unions for some legal purposes.
In 1995, the Scandinavian countries signed a treaty recognizing each other’s “registered partnerships” for same-sex couples, according to Lambda. “[R]ecognition throughout Europe and beyond will develop over time,” the organization predicts on its web site. Countries now considering domestic partnerships include Belgium, the Czech Republic, Finland, Germany, Luxembourg, Portugal, Spain, and Switzerland.
Holland appears to be closest to approving actual same-sex marriage. A court in South Africa recently ruled that the government had to allow a foreigner into the country because he was the same-sex partner of a citizen. Courts in Colombia, Hungary, and Namibia have also given some recognition of same-sex associations, according to Lambda.
In May 1999, Canada’s Supreme Court ruled that Ontario’s Family Law Act must be applied equally to same-sex couples. The Ontario government complied last fall, but refused to broaden the definition of “spouse.” The new act is on appeal to Canada’s federal Supreme Court, according to Equality for Gays and Lesbians Everywhere, a group based in Ottawa. Last summer, according to the same organization, British Columbia added to the domestic partnership benefits already available to same-sex couples, and the Quebec National Assembly put same-sex relationships on a par with common-law couples.
At the vanguard of them all is the Vermont Supreme Court, which could mandate same-sex marriage in that state even if the legislature refuses to approve it. The justices certainly seem ready for that task. In Baker vs. State the court said:
The challenge for future generations will be to define what is most essentially human. The extension of the Common Benefits Clause to acknowledge [same-sex couples] as Vermonters who seek nothing more, nor less, than legal protection and security for their avowed commitment to an intimate and lasting human relationship is simply, when all is said and done, a recognition of our common humanity.
A plea for equality
The argument for same-sex marriage is simple: it is said to be a matter of equality.
Marriage casts a long shadow on the law—as can be seen just from the paper it takes to describe its effects. Marriage confers at least 1,049 material benefits at the federal level, according to a study ordered by the US Congress in 1996. In Vermont and every other state, hundreds of benefits are bound up with “I do.” Health insurance, death benefits, pensions, inheritance, property titles, health decisions, hospital visitations, and legally privileged communications are among the entries on the long list of social realities affected by the ultimate social association: marriage.
Opponents of same-sex marriage argue that advocates have exaggerated their deprivations. They note that many benefits that spouses receive by default can be gained by other means. A person can designate anyone to be a medical proxy, for instance, and can leave anyone whatever he wants in his will; health insurance is more expensive when purchased individually, but it is still available.
“There’s a lot of room to negotiate, but this is not being presented as an invitation to negotiate,” said Coolidge, director of the Marriage Law Project.
But even couples who file all the proper paperwork sometimes lose out, according to Mary Bonauto, who once represented same-sex couples in her private legal practice. She recalled companions who were unable to visit their partners in the hospital because administrators refused to honor a medical proxy, and survivors who had to fight off challenges to a partner’s will—challenges brought by relatives who charged the partner had exercised undue influence over the deceased. “So even when you have the documents, there’s pervasive disrespect,” Bonauto said. “Frankly, people feel very unprotected by the law right now.”
Both sides agree that there are many benefits which cannot be obtained outside of legal marriage. A same-sex property owner who wants to transfer the title so that it is held by his partner and himself jointly, for instance, must pay a tax for a title transfer; the law automatically grants joint title to a spouse. If you are not married, you cannot qualify for the Social Security death benefits of a spouse. Communications between husband and wife are privileged in court, but those between mere companions are not.
Moreover, the advocates of same-sex marriage argue that compromise is never the way to achieve full equality. The question for Bonauto—who serves as co-counsel for the three same-sex couples in Vermont—”is whether you’re a full and equal citizen or not. It’s a badge of citizenship.”
Opponents of same-sex marriage make a similar point, from a different perspective.
“What they want is for society to say it’s OK,” said Dwight Duncan, associate professor of law at Southern New England School of Law in North Dartmouth, Mass., who filed a friend-of-the-court brief in the Baker case against same-sex marriage.
Subtler arguments
While equality is the straightforward claim of same-sex marriage supporters, the arguments against recognizing same-sex relationships are subtler.
Coolidge, who is something of a de facto coordinator for opposition to same-sex marriage and domestic partnerships in the United States, argues that official recognition of homosexual partners’ relationships will indirectly undermine traditional marriage. He likens the political situation in America today to the situation preceding the widespread acceptance of no-fault divorce—which was widely viewed in the 1960s as a wonderful idea, but has had unforeseen consequences on families and especially on children.
If same-sex marriage is legalized, Coolidge warns, corporations and local government agencies that do not want to deal with same-sex couples may simply stop providing certain benefits to all married people. School districts may drop marriage-preparation classes for the same reason, he believes. “You’ll have a lot less support for marriage as a meaningful legal institution,” he concludes.
That is all nonsense, Bonauto counters. If same-sex marriage becomes legal, she predicts, the secondary consequences would amount to nothing. “I don’t see the sky falling in, and I don’t see any undermining of marriage,” she said. “There are plenty of marriage licenses to go around. Gay people wouldn’t use them all up.”
Even if the world would not fall apart, Coolidge argues, same-sex marriage would amount to the-world-turned-upside-down. He worries about the effect of this new social philosophy. The law is a teacher, he reasons, and its symbols send moral messages. “If the law says a man and a man can marry, then the law’s teaching a lie, and it’s teaching it with the force of law,” Coolidge says. “And anyone with a different opinion is at least a dissenter, and probably a bigot, and likely to do something illegal.”
Similarly, the Roman Catholic bishop of Burlington, whose diocese covers the whole state of Vermont, reasons that recognizing same-sex partnerships would encourage homosexuality, an inclination the Church teaches is “gravely disordered.” “. . . [O]ne can love and respect others without accepting all their actions and without wanting the government to provide special incentives for their lifestyle,” Bishop Kenneth Angell wrote in a January letter to Vermont Catholics, who make up about one-quarter of the state’s population.
Supporters of same-sex marriage obviously do not accept such moral judgments. They also note that the opinion of religious leaders is divided on the matter; while orthodox Roman Catholics, conservative Evangelical Protestants, and Mormons have stood together against recognizing homosexual partnerships, many liberal Protestants and dissident Catholics in Vermont have come out strongly in favor of same-sex marriage.
Bishop Mary Adelia R. McLeod of the Episcopal Diocese of Vermont, for instance, has called for an “Emancipation Proclamation” for same-sex couples that would allow them to marry both civilly and within the Church. “The union of two human beings in mind, body and heart is one of God’s greatest gifts,” she wrote in her “Bishop’s February Message.” “Heterosexual and homosexual people are equally capable of entering into life-long unions of love, mutual support and fidelity.”
Indeed, state Rep. Thomas Little, chairman of the House Judiciary Committee, in his written summation of the testimony delivered before his committee by four Christian and two Jewish clerics, called it inconclusive. Little termed the clerics’ comments “powerful,” but added:
However, the testimony was not conclusive with respect to the teachings of the Judeo-Christian texts under discussion. . . . The testimony drew different moral lessons, one disfavoring giving legal recognition to homosexual unions and the other favoring such recognition.
In any event, Bonauto argues that religious denominations can work out their own rules without worrying so much about what rights and responsibilities the government confers. “We see a distinction between civil and religious marriage that is recognized in law. It doesn’t seem to be universally recognized by some of our opponents,” she said.
Elsewhere in the United States
The Vermont case shows only the front burner of a long-simmering stove. The drive to establish a right to marry for same-sex couples has received widespread attention in the United States since 1993, when the Hawaii Supreme Court found that a state law limiting marriage to opposite-sex couples was “presumptively unconstitutional,” and sent a case back to a lower court for trial. The dispute heated up quickly in 1996, when a lower court judge in Hawaii found that state law was unconstitutional. The decision could have legalized same-sex marriage in Hawaii immediately, but the judge stayed his order so it could be appealed to the state supreme court.
The ruling jolted lawmakers nationwide, who realized its implications. Hawaii could effectively make same-sex marriage legal everywhere in the country. The reason is imbedded in the principles of the United States Constitution, which was crafted and ratified in the late 1780s largely because individual states were acting like independent republics instead of members of one nation. To fix this problem, the framers of the federal constitution approved the following language (Article IV, Section 1): “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial proceedings of every other State.” This is the section that prevents states from charging tariffs on goods from other states or ignoring the laws of other states. This section also allows Congress “to prescribe the manner . . . and the effect” of how laws and court rulings from some states are accepted in others.
But in 1996, since there was no law mentioning same-sex marriage anywhere, if Hawaii made such unions legal, then same-sex couples who married there could move to another state and demand recognition of their union as a marriage. So in September of that year, the US Congress overwhelmingly passed the federal Defense of Marriage Act, which defines marriage as “only a legal union between one man and one woman as husband and wife,” and allows states to ignore other states’ definitions of marriage that differ from their own. Eyeing his reelection just six weeks later, US President Bill Clinton signed the bill into law.
In 1998, the Hawaii legislature crafted a proposed constitutional amendment, allowing legislators to define marriage as between one man and one woman, and sent it to the voters. Hawaii’s state supreme court could have ruled on the pending lower-court appeal at any time during the year-and-a-half amendment process—in effect, the court could have legalized same-sex marriage instantly—but the justices chose to hold off and let the legislative process work. The Hawaii amendment passed on November 3, 1998, by a referendum vote of 69 to 31 percent. Instead of marriage, same-sex couples in Hawaii got domestic partnership.
Meanwhile, a similar thing happened in Alaska. In February 1998, a superior court judge there found that state’s marriage law presumptively unconstitutional. That November, voters approved a constitutional amendment limiting marriage to one man and one woman, 68 to 32 percent.
Over the last four years, 30 states have passed laws or amendments to their state constitution defining marriage as an alliance between one man and one woman, and refusing to recognize alternative definitions from other states. These laws are known as “mini-DOMAs,” after the acronym formed by the federal Defense of Marriage Act.
Not among the 30 is California, the country’s largest state, which is scheduled to vote March 7 on a ballot initiative to bar same-sex marriage. The measure, which is called Proposition 22, was winning the approval of the public by 52 to 39 percent, according to a poll conducted in early February.
What comes next?
Thus far, same-sex marriage has not received much popular support. Its supporters’ successes have come from courts, not legislatures or ballots. Republican political leaders—including all of the current or recent Republican candidates for the US presidency—oppose same-sex marriage. But even Democrats who are considered friendly to homosexuals, when called to address the question of same-sex marriage, have tended to respond with versions of the same message: “I’m-liberal-but-not-that-liberal.” Democratic presidential candidates Al Gore and Bill Bradley, while courting homosexual support, have come out against same-sex marriage. (They both support domestic partnership arrangements.) And it was President Bill Clinton, considered the most homosexual-friendly American president to date, who signed the federal Defense of Marriage Act.
Still, the quest for approval of same-sex marriage appears to have momentum in America today. By finding traditional marriage laws unconstitutional, the Vermont Supreme Court has gone further than any court in the country. The court has explicitly recognized the claims of homosexual couples as deserving the opportunity to secure benefits at least equal to those of heterosexual married couples, if not the title “marriage.”
“And that’s a message, I hope, that will resonate with lawmakers in all 50 states,” Bonauto said. “I think what’s next is people in the 50 states have to think about the call for equality from Vermont and see what that means in their states. . . . Equality is a concept we keep building upon.”
In the meantime, a few court victories could bring about the desired results, even without legislative action. If Vermont does not legalize same-sex marriage, Coolidge predicts that the next test case will arise in Oregon, where a lower court has already suggested that the state’s marriage law may be unconstitutional.
Like Vermont, the case in Oregon would have national importance. If one state ever legalizes same-sex marriage, then its supporters will have a means of challenging the federal Defense of Marriage Act on the basis of the full-faith-and-credit clause in the federal constitution (and probably several other grounds). Although the US Supreme Court would probably hear the case, no one can be sure what it would do. If the nation’s highest court ruled that the Defense of Marriage Act was unconstitutional, then same-sex marriage in one state could conceivably become same-sex marriage in every state.
Since opponents of same-sex marriage are forever playing defense in a conflict that gives them 50 potential weak spots, Coolidge acknowledged that same-sex marriage supporters may break through somewhere. But if that happens, he contends it is possible that the country will pass an amendment to the federal constitution defining marriage as between one man and one woman, which would settle the issue—maybe.
Because they require initiative and consensus, amendments to the US Constitution are unusual. Only 27 have passed in 211 years—only 17 since the Bill of Rights in 1790—and history books are littered with proposals that went nowhere. In order for an amendment to be incorporated into the Constitution, two-thirds of each house of Congress must ratify an amendment, followed by three-quarters of the states. (The states may also call constitutional conventions on their own, bypassing Congress, but three-quarters of the states must still vote to ratify.)
Coolidge thinks an amendment could pass muster in the US House of Representatives, although it would be tougher to get the measure through the Senate. And he notes that 30 of the necessary 37 states have already passed defense-of-marriage statutes, many of which employ language similar to that which would be used in an amendment.
“There’s a lot left to be played out on this one,” Coolidge says. He adds: “One of the things to be played out is not only will it happen, but will it happen for good?” The legislative recognition of same-sex marriage might well “happen someplace, sooner or later,” Coolidge concedes. But if and when that happens, defenders of traditional marriage will launch their own offensive to change the law. The battle is only beginning.
Matt McDonald is a free-lance writer based in Boston.
© Catholic World Report / Ignatius Press
This item 2874 digitally provided courtesy of CatholicCulture.org
