December 22, 1999

Vermont's Momentous Ruling

Vermont's highest court has awarded the gay rights movement its biggest victory

so far in the struggle to achieve legal recognition and acceptance for same-sex

marriages. The court stopped just short of legalizing such marriages, deferring at least or now to Vermont's state legislature. But evenif it decides against gay marriages, the ourt said, the legislature must give ame-sex couples the same legal rights andprotections enjoyed by heterosexual married couples, covering everything from joint tax returns to the ability to make medicaldecisions involving a spouse. The 48-page decision, which turns on the common-benefits clause in Vermont'sConstitution, was marked by eloquence and passion -- especially the concurring opinionby Justice Denise Johnson, in which shecriticized her colleagues' unwillingness tosimply legalize same-sex marriages instead ofgiving the legislature a choice.

Nevertheless, the decision is a breakthrough for fairness. For gay couples, it is also especially welcome in view of their recent setback in Hawaii's Supreme Court. The Hawaii court dismissed a similar lawsuit on grounds that it had been rendered moot by a reactionary 1998 amendment to the State Constitution specifically designed to block an expected court ruling requiring Hawaii to

issue marriage licenses to gay couples.

The Vermont legislature, which is controlled by Democrats, may find it easier to approve an expansive domestic partnership law rather than same-sex marriages. Many people, including he state's Democratic governor, Howard Dean, remain uncomfortable with the idea of calling same-sex relationship marriages.

But other legislators may be equallyuncomfortable with the idea of creating what

would amount to a "separate but equal" systemfor same-sex partners, and will thereforesupport same-sex marriages. Moreover, as a practical matter, it is hard to see how any such domestic partnership system coulddeliver the exact privileges accorded to heterosexual couples, including the portability of marital benefits when a couple cross state lines.

Whatever the legislative outcome, Chief Justice Jeffrey Amestoy's decision will

resonate broadly this holiday season. Extending equal rights to homosexual couples "who seek nothing more, nor less, than legal protection and security for their avowed commitment to an intimate and lastingrelationship," he wrote, "is simply, when all is said and done, a recognition of our common humanity."