MONTPELIER, Vt. — For years, homosexual activists have played a highly sophisticated game of legal chess at the state-court level in the United States. After recent developments in the Vermont Legislature, some fear their efforts could have an unfortunate payoff: the destruction of male-female marriage as a legal institution in the United States.
The Judiciary Committee of the Vermont House of Representatives voted March 2 to give marriagelike status to homosexual couples. After a vetting by the House's tax-writing committee, the full House will begin debating the measure March 14. If approved by the House and Senate, it could be signed into law by the state's governor this spring.
In tiny Vermont (its population is smaller than that of El Paso, Texas) homosexual “civil unions” pose a big danger to the legal status of marriage in America, said Gerard Bradley of Notre Dame Law School. After the Vermont Supreme Court first delivered its ultimatum requiring the state to grant all of the protections and benefits of marriage to homosexuals couples, homosexual activists “have intended to extract from the Vermont Legislature whatever is necessary to have their Vermont unions recognized as legal marriages in other states.” In Bradley's view, the Vermont “civil unions” measure may well achieve this key strategic goal of the homosexual activist community.
Other legal and political analysts agree with Bradley's assessment of the potential national impact of the proposed Vermont legislation.
Gerry D'Avolio, director of Massachusetts Catholic Conference, calls the measure “a dramatic erosion of the family as we know it” which could have an impact on the rest of the nation if approved.
David Coolidge, director of the Marriage Law Project, warns that Americans should “be alert for ways in which the advocates of same-sex ‘marriage’ could use this measure as a spring board to challenge the federal Defense of Marriage Act.” For example, Coolidge warns that if the “civil unions” bill is approved by the Vermont Legislature, homosexual couples there may begin to file joint federal tax returns. When these tax returns are rejected by the Internal Revenue Service, homosexual activists may then file suit in federal court demanding that the federal Defense of Marriage Act be struck down on the grounds that it deprives them of the benefits of marriage that they enjoy under Vermont law.
Bishop Kenneth A. Angell held out some hope that the Vermont could still avoid this dramatic step. “I am extremely disappointed in this civil unions bill, which to me sounds exactly like marriage,” he said. “But I do have faith in the people of this great state and I am still praying that this bill will be defeated.”
The legislation approved by the Judiciary Committee of the Vermont House has been described by the national media as the most comprehensive “domestic partnership” measure in the nation. Most legal analysts agree that the bill is designed to ensure that the “parallel” marriage regime which it creates will be only a temporary staging ground for a legal challenge to the historic status of marriage as the union of a man and a woman.
Defenders of marriage in Vermont point to several dangerous features of the bill that go far beyond the type of limited “domestic partnership” schemes adopted by some American cities and municipalities.
Craig Bensen, vice president of the Vermont citizens group Take It To The People, points out that in contrast to most domestic partnership legislation, the “civil unions” bill takes existing marriage statutes and merely substitutes the word “partner” for “spouse.” The bill even includes a provision allowing clergy to solemnize these “civil unions” in exactly the same manner as marriages. As a result, the bill merely eliminates the critical element of the union of two genders as a requirement for the formation of a marriage.
At the same time, the bill attempts to placate opponents by adding to its “civil unions” provisions a limited legal category of “reciprocal beneficiaries” for relatives who live together. However, while granting all but the name “marriage” to homosexual couples, the bill merely accords medical decision-making power and hospital visitation rights to “reciprocal beneficiaries.”
The arguments for and against the Vermont approach pits homosexual activists against defenders of marriage.
Homosexual activists argue that the nature of the family is changing in America, and that the law should be updated. They call it a struggle for equality and basic civil rights, on a par with the struggle of blacks against slavery and legal discrimination in America. An editorial in one of the largest newspapers in Vermont, in fact, recently described a peaceful pro-marriage citizens’ rally organized by Bishop Angell at the capitol as “the equivalent of fire hoses and police dogs that were turned on civil rights workers in the South in an earlier day.”
In response, marriage's defenders say homosexual activists are the ones out of touch with reality. Public opinion polls reveal that most Americans continue to regard the term “homosexual marriage” as an oxymoron. This is because most Americans — as well as most people around the world — acknowledge the important link between marriage as a legal institution and the procreative potential of the union of a man and a woman.
In effect, without acknowledging it in so many words, most Americans still recognize the natural law basis for the social institution of marriage. If the day ever comes when American law refuses to acknowledge the natural law foundation of marriage and the family, the law of the nation will have become substantially untethered from the fabric of social reality itself.
The supporters of heterosexual marriage correctly point to the fact that marriage under American law is not a “right” but rather a privilege accorded to those unions which offer the best environment for raising children. There is an ocean of empirical evidence to support the view that the union of a man and a woman in marriage provides the best social, moral, psychological and emotional framework for raising children. In turn, society has a profound and legitimate interest in encouraging this institution.
With respect to charges of intolerance and bigotry, the defenders of marriage point out that marriage is actually the most multicultural social institution known to mankind. The fact that marriage involves the union of male and female is recognized by virtually all religious, social, cultural and ethnic lines. Indeed, from this perspective, the entire campaign to legalize same-sex marriage can be described as an aggressive effort by an intolerant minority to use the American legal system to practice social and cultural imperialism on a massive scale
Indeed, it is extremely significant that the story of the “civil unions” bill recently proposed in Vermont both began, and will almost certainly end, in the hands of the judiciary. The measure currently before the Vermont Legislature will merely serve as an invitation to the further expansion of judicial intervention in the debate over marriage.
But in Alaska and Hawaii, as well as very recently in California, American voters are increasingly using the ballot box to take the issue of marriage out of the hands of the courts. Assuming that common sense and solid moral sensibilities reign in the long run, this democratic process probably offers the best avenue for protecting marriage.
Matthew Daniels is the executive director of Alliance For Marriage in Washington, D.C.