Social experiment

Vermont really is different from the rest of the country. And that's why we aren't going to see gay marriage -- or its facsimile -- in any other state for years to come

by Neil Miller

Vermont, a state where cows officially outnumbered people until 1963, might seem an odd place to blaze the trail for same-sex marriage. After all, gay community and culture are generally viewed as big-city phenomena. The gay and lesbian political movement started with a police raid on a gay bar on the mean streets of Manhattan's Greenwich Village, not on the bucolic shores of Lake Champlain. If America has a "gay mecca," it is San Francisco, not Burlington or Brattleboro.

But the most significant experiment in gay rights in the US is about to unfold in Burlington and Brattleboro, and in city halls and town clerks' offices around the Green Mountain State. Starting July 1, gay and lesbian couples will be able to plunk down $20 for a license for same-sex "civil union" status, putting themselves on the same footing as married couples when it comes to state taxes, adoption, insurance, and more.

Civil union isn't gay marriage. But it is a parallel to marriage that is a national first -- light-years ahead of anything that has been tried in the US before. (It even provides for a form of "gay divorce.") The major drawback, though, is that because civil union is not full-fledged marriage, the 1049 federal laws regarding married couples do not apply. Social Security benefits will not pass from one partner to another, and foreign-born partners of US citizens will not get citizenship rights. And legal experts say the unions will probably not be "portable" within the US, although this is sure to be tested in court. If a Vermont couple who have registered for civil-union status move to another state, the partners will most likely lose the advantages that civil union brings.

"It is not equality," cautions Mary Bonauto, legal director of the Boston-based Gay and Lesbian Advocates and Defenders (GLAD), who was co-counsel in the case that led to the new law. "But civil union really is a new legal status that will provide a breathtaking array of benefits and protections that were previously off limits."

This new legal status has been three years in the making: it was back in 1997 that three same-sex couples applied for marriage licenses in Burlington and two smaller towns. When they were refused, they sued, and the Vermont Supreme Court took their case. On December 20, 1999, after 18 months of deliberation, the court ruled that the state had a constitutional obligation to extend to the plaintiffs "the common benefit, protection, and security" that Vermont law provides for opposite-sex married couples. The court left it up to the legislature to figure out how to accomplish that.

And so, with a judicial gun to its head, the legislature had to come to grips with an issue it would otherwise have preferred to avoid (see "Ripple Effect," below). One possible course was to legalize same-sex marriage outright, but that would probably have been politically impossible. (Even Governor Howard Dean, a gay-rights supporter, pronounced himself "uncomfortable" with the idea.) Another was to create some form of statewide domestic-partnership benefits, but that might not have met the court's requirements. Instead, the legislature chose the middle course -- civil unions. The House, which approved civil unions in mid March, ratified the Senate version this week; Governor Dean has promised to sign the bill.

What is happening in Vermont suggests that a small state with long-standing libertarian traditions may turn out to be the best laboratory for initiating social change. But spreading that change could take some time. Can other states now be persuaded to follow Vermont's lead, or is the civil-union concept just a product of Vermont's quirky character and constitution?

BLAME IT on Ethan Allen," says Stephen Kiernan, editorial-page editor of the Burlington Free Press, the state's largest daily newspaper. The way Kiernan tells it, Vermont's Revolutionary War hero made sure the state's 1777 constitution contained a "common benefits" clause, and that language turned out to be far broader than the "equal protection" clause added to the US Constitution almost a century later. The "common benefits" clause, which states that the government should pursue the benefit of all, not "the particular emolument or advantage of any single person, family, or set of persons," was the basis for Vermont's rejection of slavery. It was also the basis for the justices' ruling about same-sex couples.

The personal nature of Vermont politics, too, encouraged its pioneering stand. "Vermont is like one big small town, and that makes it harder to mistreat one another," says Chris Tebbets, a member of the board of the Freedom To Marry Task Force, which has lobbied for same-sex unions. "You run into your legislator at the grocery store. Legislators expect to be called at home."

Add to this the fact that the state's political center of gravity has moved to the left in the past 20 years. With the influx of thousands of outsiders drawn by Vermont's quality of life, what was once a rock-ribbed Republican state is now solidly Democratic: Democrats now control the governorship and both houses of the legislature. Bernie Sanders, the former socialist mayor of Burlington, now represents Vermont in Congress as an independent, and Sanders's supporters and ideological soul mates have formed the Progressive Party, which is fielding a candidate in this year's gubernatorial race.

Reflecting this political shift, Vermont enacted a number of gay-rights laws in the 1990s that put the state far ahead of the national curve. This legislation included workplace anti-discrimination protections, second-parent adoption (which gives equal parental rights to a non-biological parent), and domestic-partner benefits for state employees. Ed Flanagan was elected auditor, making him the first and only openly gay statewide elected official in the country.

Some of the gay-rights legislation passed with significant Republican support. "Our Republicans are like Democrats in other states," says Peter Freyne, a columnist for the weekly Burlington alternative newspaper Seven Days. Chief Justice Jeffrey Amestoy, who wrote the same-sex-marriage decision for the Vermont Supreme Court, is a Republican former state attorney general; 15 of 68 GOP House members voted in favor of civil unions.

Still, most Republican legislators voted against civil unions, and Ruth Dwyer, the former two-term legislator who is the likely GOP gubernatorial candidate in this fall's election, is strongly opposed. Dwyer, who says that civil unions are just gay marriage by another name, has her own view of why Vermont became the first state to approve the idea. "Vermont for the last four years has had what is considered the most liberal legislature in the country," she says. "Any national group looking to promote any radical social agenda would certainly look at Vermont and think, `There's fertile ground.' They found it!"

As Dwyer's comments indicate, support for civil unions is far from unanimous in Vermont. The most recent poll has shown the state evenly split on the issue. The Roman Catholic Church is vehemently opposed. Before the issue came up for a vote, out-of-state opponents such as anti-abortion activist Randall Terry, the founder of Operation Rescue, set up shop in the state capital of Montpelier. Vermont's usually polite political atmosphere turned ugly, with three state legislators even trading in their special House license plates for ordinary ones because of harassment by foes of civil union. (Two of those legislators were harassed even though they actually opposed the bill.)

In fact, when the bill faced its first test in the House on March 15, proponents lacked the votes for passage. A few House members who "spoke from the heart" turned the result around, according to Flanagan, the state auditor. "These were not your canned speeches," he says. "You could have heard a pin drop at any point during all of this."

One of the speakers was a representative from Rutland who revealed that she had two openly lesbian daughters, something she had never told any of her colleagues before. Another was the openly gay Representative Bill Lippert (D-Waterbury), who spoke about the impact of the AIDS epidemic and about friends who "cared for each other, holding each other," even as death arrived. "Don't tell me about what a committed relationship is and isn't," he told a hushed House. "There is no love and no commitment any greater than what I've seen, what I know."

The bill passed the House 76-69, and last week was approved by the Senate 19-11.

Governor Dean found the legislative debate particularly striking because so many legislators voted their conscience. "I haven't seen a vote like this as long as I've lived here," he says. "I doubt if there are more than 20 people out of 180 in the legislature who are playing politics in any way on this."

He adds: "Politics in Vermont still has a lot of principle in it."

WHETHER OTHER states will take Vermont's approach on civil unions is very much an open question. Dean is confident that they will: "Eventually other states with large gay and lesbian populations, like California and New York, will do the same," he predicts.

Yet when Hawaii's high court came close to approving gay marriage a few years ago, opponents put the issue to a statewide referendum in which it was overwhelmingly defeated. The same thing happened in Alaska. Earlier this year, on Super Tuesday, California voters approved the Knight Initiative, which defines marriage as a union between one man and one woman. That wouldn't affect a civil-union plan like Vermont's, but it demonstrates how statewide referendums could be used to torpedo anything resembling gay marriage. GLAD's Mary Bonauto, herself a strong supporter of full-fledged gay marriage, may be too optimistic when she says that civil unions, by avoiding the politically toxic "m-word," may have greater appeal in other states.

Vermont is relatively immune to this kind of traditionalist uprising. It doesn't have a provision for binding referendums, except in the case of a constitutional amendment. And amending the state constitution is extremely difficult, requiring a succession of legislative votes to pass by two-thirds majorities before the amendment even makes it onto the ballot. "It took us six years to change language in the constitution to make it gender neutral, a pretty inoffensive amendment," notes the Burlington Free Press's Kiernan. And because a constitutional amendment banning civil unions was defeated in the Vermont Senate this year, it can't be brought up again until 2003.

Still, other New England states show little indication of putting together the legislative building blocks that led to civil union in Vermont. Massachusetts has a gay anti-discrimination law on the books, but a statewide domestic-partnership proposal is bottled up in the legislature. Maine repealed its gay-rights law in a referendum two years ago. Rhode Island has provisions against anti-gay discrimination, and the General Assembly has passed laws on health-care visitation and funeral planning that give rights to designated individuals who are not family members. It's far from certain, though, whether the General Assembly would support anything broader -- or anything that singled out same-sex couples.

So for the time being, we may have to consider Vermont unique. It's hard to believe, however, that Vermont will stand alone forever -- though it may take a decade or longer before other states follow its lead. Take a look at what happened in Western Europe. In 1989, Denmark became the first country in Europe (and the world) to grant legal recognition to same-sex partnerships. By the mid '90s, Norway and Sweden had followed suit. Now France has enacted a law creating civil-union status for both gay and straight couples. Who knows? Maybe, if the idea continues to take root, the m-word won't seem so toxic after all.

Neil Miller can be reached at mrneily@aol.com.