It's time to make the Baker plaintiffs whole!

In A Different Take on Gay Marriage, the always thoughtful and articulate Watt Alexander makes a persuasive argument that unwelcome social backlash is a likely result of the current effort in Vermont to replace civil unions with marriage for same-gender couples. But I nevertheless hope that the legislators who represent our town (Norwich) vote to override the promised veto of this bill by Governor Douglas.

Watt's argument (which you should read for yourself rather than rely on my characterization of it) makes the compelling point that the real business of government, at least insofar as the intimate relationships of its citizens are concerned, is allocating and recognizing rights and privileges -- accomplished by civil unions -- rather than legislating social acceptance -- i.e., marriage. I respectfully disagree.

As I heard Senate President Peter Shumlin point out the other day, the vociferous opposition to the gay marriage bill refutes the argument that the state has no business recharacterizing the civil union as marriage. Words matter. Even a casual breeze through the Vermont Constitution, and the Vermont Statutes Annotated, would reveal that much in those documents is aspirational in character, expressing shared values at least as much as crisp allocation of rights and responsibilities.

Moreover, we have always used our organs of government as an important forum for resolving issues of social acceptance. Watt knows this, a recent example being the concerns he publicly expressed when one of our neighbors rose at Town Meeting to issue a threat to those whose political speech (communicated via roadside signs) transgressed his notions of civility.

It would be kind of cool if we could resolve this civil union vs. marriage thing at town meeting. But, for better or worse, marriage as a legal construct is a question consigned to state rather than local government.

On March 15, 1965, President Lyndon B. Johnson went before Congress to urge passage of what became the Civil Rights Act of 1965. The world has little noted the actual words in the Act, but what Johnson, a man with deep roots in the racist south of the early 20th Century, said that night has echoed through time:

"But even if we pass this bill the battle will not be over. What happened in Selma is part of a far larger movement which reaches into every section and state of America. It is the effort of American Negroes to secure for themselves the full blessings of American life. Their cause must be our cause too. Because it's not just Negroes, but really it's all of us, who must overcome the crippling legacy of bigotry and injustice. And we shall overcome."

Words matter. Johnson could have said "we shall not discriminate," which would have, perhaps, been a more precise and accurate characterization of the actual effect of the legislation he was advocating. But when he said "we shall overcome," it struck like a national lightning bolt. And today, a biracial man with African ancestors has the job that a reformed bigot from Texas once occupied.

I myself eschew making direct comparisons between the struggle for racial justice and the struggle for recognition of love and commitment between two people of the same gender. The reality is that sexual orientation is not directly analogous to race. I respect the fact that people who are fully committed to racial equality have more trouble with same-gender relationships because, to state the obvious, the latter is all about sex. My point is merely that rhetoric, whether written or oral, is not an insignificant thing when we work out in public matters of great personal significance to everyone as individuals.

Watt characterizes same-gender marriage as "a loser nationally," pointing out that more than a few states have amended their constitutions to define marriage explicitly as limited to female-male couples. In my respectful opinion, this is actually an argument for rather than against Vermont adopting the same-gender marriage bill.

If you take federalism seriously -- and I do -- then you celebrate rather than lament diversity among the laws of the several states. I should hope that thoughtful people in the states that amended their constitutions would admit that Vermont is free to experiment with social policies that differ from theirs -- and that it is at least theoretically possible that the Vermont experiment (and those of Connecticut and Massachusetts) might be so successful that some or all of those other states might repeal their amendments.

In other words, civil unions have become an accepted norm in Vermont and same-gender marriage might enjoy the same fate. This could have the effect of making other states downright ashamed about having enshrined mean-spiritedness in their constitutions.

It was my good fortune in 1998 to be in the audience when the Vermont Surpreme Court heard oral argument in the landmark Baker v. State case. As Watt notes, this is the litigation that led to the creation of civil unions.

I remember two things about the oral argument. The first is that the capable attorneys representing the state, despite repeated invitations to do so, could not articulate one rational relationship between the ban on same-gender marriage and some legitimate government purpose. This "rational relationship" test is the least strict, and most deferential, test that courts employ in equal protection cases -- much less stringent than the strict scrutiny to which a race-based distinction would be subject. It was poingnantly obvious that the state could not meet the test.

The second thing I remember is the solemn dignity of Stan Baker, his partner, and the other plaintiffs in the case. I sat right behind them. One could see, in their faces and in their bearing, the joy in their hearts as they finally had their day in that ornate courtroom.

When I was a law student, one of my professors, teaching about contracts rather than the constitution, said that peoople with legal disputes are always asking their lawyers, plaintively: When do I get to tell my story to the judge? Well, the Baker plaintiffs got to tell their story -- and their story was that their exclusion from the rights and privileges of marriage was unsassailably based not in rationality but in irrational revulsion over people of the same gender falling in love with each other. Imagine that.

People who like reading original source material might take a moment to peruse the dissenting opinion in Baker v. State that was written by Justice Denise Johnson. She agreed with the court's legal analysis but then pointed out, emphatically, that it was fundamentally unjust for a court to tell civil rights plaintiffs, in effect: Yes, you've clearly demonstrated discrimination that transgresses the constitution but you will get no relief or remedy here -- go see the Legislature.

You could say that the majority of Johnson's colleagues, who joined the opinion of the court written by Chief Justice Jeffrey Amestoy (a former politician), were shrewd in carving out a pivotal role for elected officials and the political process in resolving the question that the Baker plaintiffs had the courage to pursue. But if you hold to that view, please remember that the phrase "civil union" was mentioned by no one in the Baker litigation -- both the plaintiffs and the state argued about "marriage."

It's time to resolve the argument. Mr. Baker won. It's been ten years. He deserves the relief he requested.