Vermont Legalizes Gay Marriage – The Right Way

Gay marriage advocate Beth Robinson, center, holds back tears following the passage of a gay marriage bill in Montpelier, Vt. , Tuesday, April 7, 2009. Vermont has become the fourth state to legalize gay marriage. The state legislature voted Tuesday to override Gov. Jim Douglas' veto of a bill allowing gays and lesbians to marry. The vote was 23-5 to override in the state Senate and 100-49 to override in the House. Under Vermont law, two-thirds of each chamber had to vote for override. At left is Sherry Corbin and at right is Susan Murray.

Gay marriage advocate Beth Robinson, center, holds back tears following the passage of a gay marriage bill in Montpelier, Vt. , Tuesday, April 7, 2009. Vermont has become the fourth state to legalize gay marriage. The state legislature voted Tuesday to override Gov. Jim Douglas' veto of a bill allowing gays and lesbians to marry. The vote was 23-5 to override in the state Senate and 100-49 to override in the House. Under Vermont law, two-thirds of each chamber had to vote for override. At left is Sherry Corbin and at right is Susan Murray.

Vermont, the only state with a Socialist in Congress, today became the first state to legalize same-sex marriages through legislative action.

Vermont has become the fourth state to legalize gay marriage — and the first to do so with a legislature’s vote.

The Legislature voted Tuesday to override Gov. Jim Douglas’ veto of a bill allowing gays and lesbians to marry. The vote was 23-5 to override in the state Senate and 100-49 to override in the House. Under Vermont law, two-thirds of each chamber had to vote for override.

The vote came nine years after Vermont adopted its first-in-the-nation civil unions law.

It’s now the fourth state to permit same-sex marriage. Massachusetts, Connecticut and Iowa are the others. Their approval of gay marriage came from the courts.

The override was swift — the veto was only yesterday.

Regardless of one’s views on the merits of people of the same sex being allowed to marry, this is how drastic changes in social norms — and this is surely that — are supposed to take place.  Vermont is perhaps the most liberal state in the union and has every right to make this call for itself.  And the fact that this was done through an overwhelming vote of representatives accountable to the people rather than by judicial fiat makes the outcome much easier for opponents to swallow.

FILED UNDER: Gender Issues, Law and the Courts, , , ,
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Alex Knapp says:

    Regardless of one’s views on the merits of people of the same sex being allowed to marry, this is how drastic changes in social norms — and this is surely that — are supposed to take place.

    While I certainly prefer a legislative option, the plain language of the Constitution reserves rights to the people in the 9th Amendment and it is perfectly proper for the Courts to interpret the 9th Amendment to maximize personal liberty. This is especially true in the case of majority hostility to the rights of minorities. Or do you think that Brown vs. Board of Education, Loving v. Virginia, etc. were wrongly decided? Desegregation was, arguably, just as much a drastic shift in social norms then as gay marriage is today.

  2. Steve Verdon says:

    What Alex said. One reason we have the Constitution and the courts is to prevent the majority form trampling the rights of a minority.

    I find this notion of judicial activism just plain silly. It depends on where you fall on the political spectrum and the issue at hand. If you like the judicial outcome its just and wise and good. If you don’t why its judicial activism and over-turning the will of the people…as if the will of the people is always a good thing.

  3. bloodstar says:

    If you look at history, Social Norms are defined by generations, and one of the interesting aspects of these social norms is how the Judicial system tends to be at the forefront for defining rights compared to legislative systems which tend to be responsive to the parties that elect them, which are the older and more likely to vote groups.

    As such, most of the time judicial change begins about a generation before legislative change really begins to take place. At this point SSM Opponents are going to have a few options left:

    1) Removing Marriage from having a legal definition, and make it a religious only ceremony. Let the states define everything as some sort of civil union. That way religions can choose to marry whom they want and whom they don’t want without worry of ‘interference’

    2) Retrench and blame the liberals for Vermont, which won’t help in any equal protection arguments they will need to make in future judicial action.

    3) Drop it as a hot button issue and move on to the next thing.

    I’d go on, but really, this is quite long enough 🙂

  4. Floyd says:

    Alex;
    Comparing sexual preference to race is disingenuous.
    This is far more akin to legalizing pedophilia than it is to racial integration and any intellectually honest person would see that.
    That is not to say that it is equivalent to pedophilia,which is yet another whole step down the same road.

  5. James Joyner says:

    Desegregation was, arguably, just as much a drastic shift in social norms then as gay marriage is today.

    But the Constitution plainly made it illegal for government to discriminate on basis of race via the 14th Amendment.

    If you like the judicial outcome its just and wise and good. If you don’t why its judicial activism and over-turning the will of the people…as if the will of the people is always a good thing.

    I agree that it often comes down to policy preferences. Still, there are things that the Constitution plainly touches upon and those it doesn’t.

    I’m hard pressed to believe that the Framers or any of the amenders meant to institutionalize buggery, given that it was anathema to most of them. One can argue whether the post-Civil War amendments meant to totally integrate the races but they plainly meant to humanize African Americans and grant them citizenship rights.

  6. Steve Plunk says:

    This is the preferable way to legalize it and in my opinion the only legitimate way.

    This is not a civil rights issue. I hear over and over again how gay couples can’t visit each other in the hospital or get information from doctors concerning their partners but the solution to that can be changing those laws instead of allowing gay marriage. Wills can determine estate distribution. Other legal documents can ensure joint ownership and partner status. I firmly believe gays are looking for widespread acceptance of lifestyle through state recognition of it.

    Traditional marriage is not likely to just be tossed aside across the country. Some states will change and some will not forcing the courts to again enter into this fracas. If we are going to see a move by the courts to maximize personal liberty then we will have to take things we don’t like as well as those we do. However, I see the courts picking and choosing the personal rights they will support based upon what’s politically correct and socially trendy.

  7. Joey says:

    Our government allows the courts to do what they have done. If you don’t like this, the constitution, it’s time to get out.

    It is a civil rights issue, as long as the government chooses to recognize a “special rights union” it should not be limited to heterosexual couples only. At that point it is quite a civil rights issue. Wills have been challenged in court before.

    “This is far more akin to legalizing pedophilia than it is to racial integration and any intellectually honest person would see that.”

    Um… What? Are you high? It is quite the opposite of legalizing pedophilia. Children are not legally capable of giving consent for marriage/sexual acts. This is about two people who are legally capable of giving consent, and being barred from it(before, and still, in many states).

    Any intellectually honest, or even dishonest, person can see that. Perhaps you see it, and wish to redirect.

  8. Bithead says:

    I wonder if it would have passed on a referendum?

  9. Michael says:

    And the fact that this was done through an overwhelming vote of representatives accountable to the people rather than by judicial fiat makes the outcome much easier for opponents to swallow.

    You actually thought they cared about judicial fiat or state’s rights? No, this will just lead to a push for a Constitutional ban on gay marriage, because those legislatures are passing laws not supported “by the people”. See Bithead’s question about a referendum above.

    But the Constitution plainly made it illegal for government to discriminate on basis of race via the 14th Amendment.

    And how did it not do the same for discrimination based on gender?

  10. Ben says:

    I wonder if it would have passed on a referendum?

    I don’t know or care. Direct democracy would be just as brutal and repressive towards minorities as any fascism regime. I’m glad we don’t have it for the most part.

  11. James H says:

    Changing social norms don’t find their way into policy solely through the legislative process. Rather, the process seems to bounce between judicial and legislative. Consider the gay marriage issue, for example, looking only at Vermont:

    1. The Vermont Supreme Court heard a case on same-sex marriage and ruled the state’s laws unconstitutional.

    2. Responding to the ruling, the Vermont legislature created civil unions, which passed state constitutional muster.

    3. The state of Vermont did not collapse.

    4. The Vermont legislature legalized same-sex marriage.

    IMO, it rather parallels the progress of race discrimination cited above; the first, largest success came through the courts in cases like Brown v. Board of Education. At judicial order/prodding, legislatures enacted laws prohibiting government discrimination. In the next step, the federal government enacted laws prohibiting discrimination by private actors. Then, the federal courts upheld the new government action in court cases.

    It Ping-Pongs back and forth, but it seems to me that the first court victory is essential.

  12. Bithead says:

    I don’t know or care. Direct democracy would be just as brutal and repressive towards minorities as any fascism regime. I’m glad we don’t have it for the most part.

    So am I, actually. But at the same time, and whatever you think of SSM, trumpeting this as some kind of victory for “small d” democracy seems a bit out of place. Big D Democrat seems a closer description of the happening.

    And “Held accountable”? Hardly. We could all point to at least a half dozen instances where the elected operated contrary to the wishes of the voters in the last three months alone. It’s still an even money bet Chris Dodd will be re-elected, for example. Barney Frank. Etc. Accountability to the electorate seems loosely connected at best, in reality, regardless of what you learned in your high schol Social Studies classes.

  13. Ottovbvs says:

    Posted by Floyd | April 7, 2009 | 12:18 pm |

    …..You just said it was equivalent to paedophilia which I suppose gives us a fair idea of your opinions. I’m inclined to agree with James this is a major breach in the dike, no pun intended. If you had told me 20 years ago I would be accepting of gay marriage I’d have said you were off your head but I believe I’m typical. The country, the world really, has moved on this one. It’s another culture war conservatives have lost, how ironic that only four years ago they were seen as fundamental to their electoral success. James is wrong to dismiss the courts however. They’ve always played a pivotal role in social progress. If it was left to state legislatures to recognize longstanding injustices then MLK would still be marching. I’d be surprised if this isn’t on the ballot again in CA next year and it will be carried.

  14. James Joyner says:

    It’s still an even money bet Chris Dodd will be re-elected, for example. Barney Frank. Etc. Accountability to the electorate seems loosely connected at best, in reality, regardless of what you learned in your high schol Social Studies classes.

    Dodd and Frank have been wildly popular in Connecticut and MA-4, respectively, and are quite accountable to those constituencies. That you and I don’t like how they vote is irrelevant in our federal system.

  15. An Interested Party says:

    Comparing sexual preference to race is disingenuous.

    The only way it is “disingenuous” is if people are not born homosexual…do you believe that? That it is simply a “choice” and not innate? That would certainly explain why you would make such a disgusting and disingenuous comparison as legalizing same sex marriage to legalizing pedophilia…

    I’m hard pressed to believe that the Framers or any of the amenders meant to institutionalize buggery, given that it was anathema to most of them.

    Of course, because “buggery” is all that there is to homosexuality…I wonder how many of the Framers and amenders would have loathed miscegenation, and, yet, here we are…

    We could all point to at least a half dozen instances where the elected operated contrary to the wishes of the voters in the last three months alone.

    But we are supposed to be living in a representative democracy, no? If people have a problem with how their elected representatives voted on any issue, they will have a chance to rectify their previous vote in due course…

  16. sam says:

    @JJ

    Regardless of one’s views on the merits of people of the same sex different races being allowed to marry, this is how drastic changes in social norms — and this is surely that — are supposed to take place.

    See, Loving v. Virginia, 388 U.S. 1 (The most rightly named case in the history of US Supreme Court jurisprudence.)

  17. James Joyner says:

    Of course, because “buggery” is all that there is to homosexuality…I wonder how many of the Framers and amenders would have loathed miscegenation, and, yet, here we are…

    and

    See, Loving v. Virginia, 388 U.S. 1 (The most rightly named case in the history of US Supreme Court jurisprudence.)

    The 14th Amendment was added in the aftermath of the Civil War with the specific purpose of making blacks full citizens. 21-year-old white males have always been considered full citizens and yet were not permitted to marry one another.

    Loving is a perfectly direct reading of the 14th Amendment, even if one that would not have been approved of by those who passed the 14th Amendment. Even so, sure, it would have been preferable in many ways if the change were organic rather than mandated by a court.

  18. Michael says:

    21-year-old white males have always been considered full citizens and yet were not permitted to marry one another.

    Then marriage isn’t a right of citizenship in our society. What the courts and now legislatures are doing, is saying that it is a right of citizenship.

  19. Bithead says:

    Dodd and Frank have been wildly popular in Connecticut and MA-4, respectively, and are quite accountable to those constituencies.

    The implications here are profound at least. Are we really saying that the people in those districts approve of those activities? Flash; It’s not the pols that are the problem, it’s the voters…. (Chuckle) Yeah, THAT’ll go over big, huh?

  20. sam says:

    @James

    Loving is a perfectly direct reading of the 14th Amendment, even if one that would not have been approved of by those who passed the 14th Amendment.

    Absolutely, James, but as you yourself have acknowledged many times, social norms change. Only an unmovable originalist would argue that if the the ratifiers of the 14th believed that mixed-race marriage was outside pale, then Virginia was well within its rights to outlaw such unions. We would, correctly, disregard their (now widely understood as) benighted beliefs on this subject.

    But really, doesn’t all this just show that government should get out of the marriage business, period?

  21. DL says:

    Doing evil the right way is still doing evil.
    It’s as if rape with a condom is something other than rape because it’s been done properly.

    Some day there will be an accounting for all of this grave defiance of God, and the legal aspect won’t even be mentioned.

  22. Mark Jaquith says:

    Removing Marriage from having a legal definition, and make it a religious only ceremony. Let the states define everything as some sort of civil union. That way religions can choose to marry whom they want and whom they don’t want without worry of ‘interference’

    That would be my choice — and I’m in favor of legalizing same-sex unions. I don’t want the government promoting or deprecating any sort of consensual sexual relationship. Let them be simple civil contracts for purposes of child guardianship. Let insurance companies and employers etc decide what kinds of relationships they’ll respect.

  23. They had to act quickly–their entire legislative session is about sixty days from January to April. If only we could get Congress to follow Vermont’s lead on that one….

  24. Andy Vance says:

    institutionalize buggery

    You’re all class, James.

  25. sam says:

    Doing evil the right way is still doing evil.
    It’s as if rape with a condom is something other than rape because it’s been done properly.

    Some day there will be an accounting for all of this grave defiance of God, and the legal aspect won’t even be mentioned.

    Oh for Christ’s sake, give it a rest. Look to the many beams in your own eye–while you’re groping around for the first stone.

  26. G.A.Phillips says:

    Oh for Christ’s sake, give it a rest. Look to the many beams in your own eye–while you’re groping around for the first stone.

    lol what?

  27. Floyd says:

    Ottovbvs sez…
    “”You just said it was equivalent to paedophilia””
    “”””””””””””””””””””””””””””””””””””””””””””””””
    I said no such thing… In fact I stated just the opposite. read it again.
    **************************************************

    An interested party sez…
    “”That would certainly explain why you would make such a disgusting and disingenuous comparison as legalizing same sex marriage to legalizing pedophilia…””
    “”””””””””””””””””””””””””””””””””””””””””””””””””
    Disgusting? certainly!… Disingenuous? Not even a whit!

  28. graywolf says:

    Vermont:
    Socialism and sodomy.

  29. An Interested Party says:

    Disingenuous? Not even a whit!

    On the contrary, unless you would care to explain how legalizing same sex marriage is similar to legalizing pedophilia…

    re: graywolf | April 7, 2009 | 11:14 pm

    Is it sodomy in general that freaks you out, or just sodomy among gay men? If it is the first, will you be leading the charge to make it illegal? If it is the second, perhaps you should just mind your own business…

  30. An Interested Party says:

    And the fact that this was done through an overwhelming vote of representatives accountable to the people rather than by judicial fiat makes the outcome much easier for opponents to swallow.

    Except for, apparently, many of its opponents around here…

  31. anjin-san says:

    Let insurance companies and employers etc decide what kinds of relationships they’ll respect.

    Do you think the employers/insurance companies should be able to deny benefits to the spouses in a heterosexual marriage if they feel like it?

    Equal protection under the law, you know…

  32. Bithead says:

    Equal protection under the law, Anjin, refers to protection from government, not from private concerns, or other individuals.

    Now, granted that gets a bit cloudly lately; Until just recently, insurance companies, for example, weren’t owned by government.

    But your question as phrased reveals rather a lot… more, I think than you intend, about what you think the role of government should be/is.