State gay marriage commission hears from legal scholars
By DANIEL BARLOW Vermont Press Bureau | October 30,2007
SOUTH ROYALTON ó As he spoke about the intangible differences between civil unions and same-sex marriage Monday afternoon, law professor Peter Teachout tried to put the differences between the two institutions into perspective.
Speaking to the Vermont Commission on Family Recognition and Protection during its second public hearing at Vermont Law School, Teachout jokingly suggested starting over with a two-track system.
Let the Legislature write laws detailing civil unions and marriages, he said, but don't reveal which name a union between two people of the same gender would get and two people of different genders would get.
"Just flip a coin at the end and decide who gets marriage and who gets civil unions," Teachout said. "Let's see how many people vote for the two-track system then."
Members of the Vermont Legislature's commission studying the possibility of expanding marriage rights to gay and lesbian couples received a quick legal lesson on the history of the gay rights struggle as it met with four lawyers Monday afternoon.
When it comes to Vermont law, there is no difference between traditional marriage and civil unions, which the state legalized for same-sex couples in 2000, three Vermont Law School professors told the commission.
And since the 1996 federal Defense of Marriage act was passed, other states and the federal government do not have to recognize a Vermont civil union, according to Gregory Johnson, a law professor at the school. There are 1,096 rights, such as extending Social Security benefits to a partner, that the federal government offers married heterosexual couples that they do not for their same-sex counterparts, he explained.
"Whatever Vermont calls it, same-sex couples would be no closer to these federal rights than before civil unions," he said.
Meanwhile, some states have taken upon themselves to either recognize or reject civil unions or same-sex marriage, Johnson said. Right now, eight states recognize Vermont's civil unions as a marriage equivalent, he said, but more than 40 states have passed laws defining marriage as between one man and one woman.
But there are intangible differences between civil unions and traditional marriage, such as that marriage is more widely recognized as a union in the common culture, according to Teachout. The Vermont court did not address that in its 1999 ruling that led to civil unions, but same-sex couples do speak of feeling separate or unequal from heterosexual couples due to the distinction, he explained.
Lawmakers have more latitude in their work, he added.
"You are free to confront the intangible as well as the tangible," he told the commission. "You've got the right, and in my view not only the right, but the obligation and responsibility to ask, what is the right thing to do at this time."
Teachout, who spoke of the differences in how Vermont and Massachusetts courts came to different conclusions on the gay marriage question, also recommended to the commission that they hold a statewide public referendum on whether the state should legalize gay marriage.
"I believe that if Vermont were asked what to do, that it will do the right thing," he said. "That may be naive, but it is my opinion."
Some members of the commission ó especially current and former elected members of state government ó quickly tried to squash the notion of holding a statewide vote. Former Vermont Gov. Phil Hoff said that would lead to a Legislature that turns to statewide votes to tackle tough issues.
"I'm not sure we would survive under that system," he said.
Nearly all of Monday's meeting was thick in legal arguments and relatively low-key. But sparks flew as commissioners had some tough questions for Monte Stewart, a Utah attorney and president of the Marriage Law Foundation, a group that opposes same-sex marriage.
Stewart told the commission that if what he called "genderless marriage" was legalized, it would undermine the benefits of traditional marriages between one man and one woman. He said traditional marriage is a vital social institution that keeps societies together and ensures that children grow up in a safe environment.
"You have the power to dissolve man-woman marriage by suppressing that meaning," he told the commission. "By suppressing that meaning, you lose the social goods that flow from that meaning."
Sen. John Campbell, D-Chittenden, said he had a difficult time following the logic behind Stewart's belief that same-sex marriages will undermine the healthy care of children. When he worked as a police officer, he said he saw many heterosexual married couples that "treated their kids in ways that no kid should be treated."
"I wouldn't even call them families," Campbell said. "But I can assure you that the gay and lesbian couples that I know who are raising children, are far better situations than any of those heterosexual families."
Stewart admitted that the institution of marriage has been wounded over the years due to divorce and bad parenting. But he added that a recent study linked population declines, or as he called it "childlessness," to communities that have strong political support for gay marriage and he cited San Francisco and Vermont as examples.
Commissioner Johanna Leddy Donovan, a Democratic state representative from Burlington, joked that she was always told it was the "lack of jobs, high taxes and cold winters" that have resulted in the state's youth leaving Vermont for other prospects.
Meanwhile, Hoff told Stewart that he just doesn't understand how he can see expanding marriage rights as "exclusionary to man-woman marriage."
"Why is that so?" he asked. "Why can't they live side-by-side?"
The back-and-forth between commissioners and Stewart forced Commission Chair Tom Little, a former Republican state representative from Shelburne, to interject.
"We are here to listen and ask questions, not to debate," he said.
Law professor Michael Mello closed the session with a plea to "give civil unions a proper burial."
"In 2000, civil unions were a pioneering step forward and many, many legislators voted for it at great political risk," he said. "But it is time for marriage, although I don't think it will be an easy thing to do."
Monday's public hearing, the second for the commission, was scheduled to hear solely from the legal community. Future public sessions for the general community will be held around the state as the commission prepares to issue a report on its findings to lawmakers in April 2008.
Contact Daniel Barlow at Daniel.Barlow@rutlandherald.com.