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The Loving Lesson 

Legal precedents predict the path of same-sex marriage

Published April 22, 2009 at 7:55 a.m.

Mildred and Richard Loving were childhood sweethearts. The couple — she was of African American and Native American descent, and he was a white man — married in the District of Columbia because interracial marriage was a crime in Virginia. Caught by police on a visit back to see family, the Lovings were convicted and banned from the state. They filed suit and, in a unanimous decision in 1967, Loving v. Virginia, the United States Supreme Court held that because marriage was a fundamental right, the state could not prohibit people from marrying because of the color of their skin.

Beth Robinson is the founder of Vermont Freedom to Marry Task Force and the intellectual architect of legalized same-sex marriage. When she argued before the Vermont Supreme Court in Baker v. State back in 1998, she began by discussing bans on interracial marriage. She urged the court to take the first step toward marriage equality for gay and lesbian Vermonters just as a California court had done when it became the first court to repeal its anti-miscegenation law in 1948, thus paving the way towards Loving.

Initially, the legal strategy on behalf of same-sex marriage advocates had been to target those states with relatively liberal supreme courts and constitutions that were difficult to amend. That way, if the court determined that banning same-sex marriage was unconstitutional, thereby protecting the minority, the majority of citizens couldn’t just hold a referendum to undo what the court had done, as was recently the case in California. In 1998, Vermont fit the bill. But despite Robinson’s brilliant argument, and a half-hearted defense of heterosexual marriage by the attorney general’s office, the Vermont Supreme Court was only willing to take a baby step: it threw the issue back to the legislature to decide whether marriage or some other legal classification would satisfy the common-benefits clause. Rather than resist the court’s decision by trying to amend our state constitution — which, while incredibly hard to do, is feasible if there is enough political will — the legislature moved forward with civil unions.

Baker forced a change in strategy. It would not be enough to convince judges that same-sex marriage was constitutionally required. Proponents would have to win over legislators and eventually the public. The initial debate over civil unions in Vermont gave proponents an opportunity to hone their lobbying skills and understand the need to build grassroots support. That debate also showed that people were most persuaded not by legal arguments but by love stories. Proponents asked real Vermonters to talk about their lives and their struggles. It’s only been in the past few months that many of us have seen those sweet ads, in which same-sex couples tell their personal stories, but the Freedom to Marry Task Force has been telling them for 10 years to policy makers, friends and neighbors.

By the time the same-sex-marriage debate came to the Statehouse this year, no one was objecting to civil unions. Maintaining civil unions, which were once considered radical, as a compromise position became the centerpiece of the opposition’s agenda. That shift alone demonstrates just how far Vermonters had evolved over the last decade.

Vermont is now the first state to legalize gay marriage without a court mandate. The other states that have legalized same-sex marriage — Massachusetts, Connecticut and Iowa — did so in response to their state supreme courts mandating marriage under their respective state constitutions. Until Vermont, opponents of same-sex marriage had argued that these victories were a result of activist liberal courts inappropriately imposing a social agenda. But a legislative victory in Vermont proves that people’s personal views are changing. And despite the rhetoric from those who oppose same-sex marriage, it’s unlikely that many of those 123 legislators who voted to override Gov. Douglas’ veto will lose their seats.

By the same token, it’s not likely Gov. Douglas, or any legislator who voted against the bill, will face much backlash, either. It’s not that Vermonters don’t feel strongly about same-sex marriage. Rather, with a faltering economy, rising education and health-care costs, and challenges around energy and transportation, state residents are not likely to let a single social issue guide their votes.

Furthermore, what happened in Vermont won’t seem so groundbreaking by November 2010. The District of Columbia recently passed a preliminary bill recognizing same-sex marriage and, currently, many state legislatures — including those in New York, New Jersey, New Hampshire, Maine, Illinois and Maryland — are considering same-sex-marriage bills. Not all of them will pass, but by the next election, the list of states that have allowed for same-sex marriage by legislative action will have grown beyond Vermont.

Internationally, too, the trend is toward expanding marriage rights. Same-sex marriage is now recognized in Canada, the Netherlands, Belgium, Spain, South Africa, Norway and Sweden. Same-sex marriages performed abroad are recognized in Israel and France; more countries, particularly in the European Union, are likely to follow suit.

That’s not to say that same-sex marriage is widely accepted. At least 30 states have a constitutional amendment banning it, while many others restrict marriage and civil unions to heterosexual couples. Recently, voters in California reversed its supreme-court ruling legalizing same-sex marriage by the narrowest of margins. In addition, the federal Defense of Marriage Act (DOMA), passed under President Clinton in 1996, specifically defines marriage as between a man and a woman for the purposes of federal law. DOMA also allows states to refuse to recognize same-sex unions despite the requirement that states give full faith and credit to marriages performed in other states.

This patchwork of laws creates many problems. The first is that couples wed in states with legalized same-sex marriage cannot enjoy the benefits (or suffer the burdens) of marriage under federal law. Despite a legal marriage in Vermont, a same-sex spouse is still considered “single” for federal income tax, Social Security benefits and dozens of other federal programs. Recently, proponents of same-sex marriage have filed lawsuits challenging the federal government’s refusal to recognize same-sex marriages.

Second, when a same-sex couple moves from Vermont to another state, significant questions about their legal status arise. For example, if said couple moves to Alabama and one of them dies there without a will, who inherits the property or other assets? If that couple decides to part ways, does Alabama have to grant the divorce? The answers to these and other questions remain unclear.

Ultimately, the United States Supreme Court will have to weigh in on the issue, though it’s not likely to do so anytime soon. No one wants this issue before the court just yet; it’s simply too unpredictable. On one hand, the current Supreme Court is quite conservative. Though President Obama could have as many as three appointees during his first term, they’re likely to replace the court’s more liberal justices, and thus the balance probably won’t shift significantly in the near future. On the other hand, at least five current justices on the court ruled in favor of the rights of gay and lesbians in Romer v. Evans and Lawrence v. Texas.

In Romer, the court held that disapproval or animus towards a group of people was not a good enough justification for denying gays and lesbians the benefits of anti-discrimination laws. In Lawrence, the court held that states could not criminalize private, consensual sexual conduct. The Justices would have a hard time upholding bans on same-sex marriage without backtracking on earlier precedent.

Indeed, any case before the Supreme Court involving same-sex marriage could come down to Justice Anthony Kennedy’s vote. That’s just too risky a strategy for either side to undertake. Besides, recent comments by some justices suggest the court would prefer that the public continue debating the issue before it ultimately weighs in. So, unless Congress repeals DOMA, which is highly unlikely, the debate over same-sex marriage is going to be played out state by state and case by case. That leaves Vermont’s married same-sex couples little predictability in the near future about their legal status outside the state.

It was almost 20 years after the California Supreme Court struck down laws banning interracial marriage that the U.S. Supreme Court declared Mildred and Richard Loving had a constitutional right to marry each other. During those two decades, much had to change to convince the American people that whites weren’t the only children of God, and that interracial marriage would not undermine basic American values. In 1948, data suggest that only about 10 percent of Americans approved of interracial marriage when it became legal in California. By 1967, the year Loving was decided, 28 percent of Americans approved of it. Today, 75 percent of Americans say they approve of marriage between people of different races.

Similarly, polls today suggest that somewhere between 30 and 40 percent of Americans support same-sex marriage, and an even larger percentage supports civil unions. It’s difficult to imagine that trend reversing. Rather, it seems inevitable that more Americans will evolve the way Vermonters have, by accepting same-sex marriage. If Loving serves as a guide, then the road is only half-traveled, but the destination is in sight. Ultimately, same-sex marriages will one day be legally recognized throughout the nation. It will just take time.

When Mildred Loving died last year, her daughter said that she wanted people to remember her mother as someone strong and brave, yet humble — and believing in love. Given the events of the past decade, plenty of Vermonters will likely be remembered the same way.

Marriage Issue

So much for the "bridal" issue. Gender-specific terminology no longer applies to Vermont marriages - the first state to extend rights to same-sex couples without judicial prompting. Wedding industry professionals hope that translates into more Vermont ceremonies. Wedding photographer Karen Pike looks forward to... her own. Legal scholar Cheryl Hanna predicts when the feds might join the party. And, as our lead story reveals, some gay couples are still getting used to the idea that they, too, can say "I do." Congrats.

Click here for more stories from the April 22, 2009 Marriage Equality Issue.

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Cheryl Hanna


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