WASHINGTON—In the legal battles over homosexual “marriage,” Vermont is ground zero.

The five members of the Vermont Supreme Court are weighing the latest appeal of a 1997 challenge three homosexual couples made to the state's marriage laws. The decision, due sometime this year, could set off ripple effects in other states.

The first three parts of this series examined the history, key battleground states, and arguments about homosexual “marriage.” This concluding part looks at the three major options now looming in Vermont.

Option 1: Just Say No

The court could rule that the existing marriage law fits the Vermont Constitution just fine. It could give a lengthy explanation of its reasons, or it could just say, “Case dismissed.” Either way, the immediate possibility that homosexual “marriage” will be mandated by a court would be over.

Then the people of Vermont would have to be vigilant in their own state Legislature to see that marriage continues to be defined as the union of a man and a woman.

Elsewhere, however, there are 21 states still without marriage recognition laws. Some of these, notably California and Oregon, are shaping up to be major battlegrounds.

In California the issue is the Defense of Marriage Initiative, which will be on the ballot in March 2000.

In Oregon, the issue is more complicated. In December a midlevel court held that the Oregon Constitution forbids discrimination on the basis of “sexual orientation” wherever government is concerned. The present case is about insurance benefits, not the marriage statute. But the marriage statute is now up for grabs, and efforts are under way to amend the constitution.

Option 2: Say, ‘Maybe,’ Then Stall

The court could decide on the procedural rules of the case, rather than the case itself. This is exactly how the Hawaii Supreme Court got the current crisis rolling, back in 1993. It issued a rule for the case, and sent it back to the lower court to put the marriage law on trial.

In layman's terms, the Vermont court could essentially say, “We don't know if the law is constitutional or not. But we're switching who has the burden of proof. Now it's the state.”

This is what the Hawaii court did. It fixed the rules so that the state was almost bound to lose, given the difficulty of proving “a compelling state interest” for marriage.

Defenders of traditional marriages anticipated that problem, so they concentrated on other things, such as convincing the Legislature to propose a Marriage Amendment to the state constitution. The result: the constitution is now amended.

There's a big problem in Vermont, however, that the people in Hawaii didn't have to face. It is very difficult to amend the Vermont Constitution. It takes at least three years.

While the people of Vermont are busy trying to help win the case and amend their constitution, citizens in the other states will need to scramble to finish passing marriage recognition statutes. This will be especially important in New England and the Mid-Atlantic, where the homosexual community is well-organized and well-positioned in the event that they lose the case in Vermont.

Option 3: Full Speed Ahead

The Vermont Supreme Court could decide to go all the way and mandate same-sex “marriage.” It could do this in one of two ways.

First, the court could rule that the Constitution of Vermont, enacted in 1793, requires the legalization of homosexual “marriage.” The court would issue a lengthy explanation of its unconventional conclusions, and then discourse on liberty, equality, rights, and so forth. Since the decision would be constitutional, the only remedy would be a constitutional amendment.

The second (and more clever) decision could be that Vermont's marriage law, which does not literally use the words “one man and one woman,” should now be interpreted to include homosexual couples. Since this would be a decision about a statute, the Legislature could overturn it, if it chooses to.

Either way, the Legislature will be busy, and the citizens of Vermont might be furious.

But what about everybody else? If you're in Kansas or Utah or North Carolina, what happens now?

In theory, hundreds or thousands of homosexual couples will drive or fly to Vermont and get married. Then they will go home and demand to have their marriage be recognized under the law of their home state. Immediately, officials in those states would have to make momentous decisions.

They could acquiesce in and accept these claims to homosexual “marriage.” Or they could fight. Every state that doesn't acquiesce will have multiple lawsuits seeking to force marriage recognition. Officials will be under tremendous pressure from state and national homosexual and lesbian groups.

Defenders of traditional marriage would have to work fast to have their states pass a marriage recognition law. Even in the 29 states that do have a marriage recognition law, such law need to be defended by the attorney general and local authorities. Governors, attorneys general, and mayors might need encouragement to stand firm and not be intimidated by lawsuits challenging the law.

Bishops and pastors could also communicate with those in authority. Interdominational groups could also band together in the effort.

In this legal struggle, ordinary people have already made a great difference. Key factors in their success include:

• being open to all people, including those they disagree with;

• careful studies of the issues involved;

• a willingness to take stances that will be ridiculed by elites;

• a cooperative spirit, working together with like-minded people of good will; and

• persistence in the effort to help others understand the importance of the issue.

Such persistence will shape the future of marriage law in the United States.

David Coolidge writes from Washington, D.C.

How You Can Defend Marriage

Homosexual “marriage” is an issue in every state. But it is particularly crucial in the following states with no “marriage recognition” laws:










New Hampshire*

New Jersey*

New Mexico*

New York*

Ohio Oregon*

Rhode Island*





West Virginia*

Information on the Web:

www.pono.net (Hawaii Catholic Conference)

*colorado.cftm.org (to find information about states with asterisks above, type the state's name followed by .cftm.org.)


—David Coolidge