On December 20, 1999, the Vermont Supreme Court ruled in Baker v. Vermont that gay and lesbian couples were entitled to the same legal rights and benefits of marriage as heterosexual couples. The court ordered the Vermont legislature to craft a law that would satisfy the ruling, either by legalizing gay marriage or by creating an equivalent partnership structure. The decision, wrote Chief Justice Jeffrey Amestoy, "is simply a recognition of our common humanity."
On April 25, 2000, after a remarkable four-month marathon of public hearings, legislative maneuvering, protests, counter-demonstrations, and statewide soul-searching, the Vermont House of Representatives voted 79 to 68 to pass the civil unions bill, the most sweeping grant of rights to gay couples in the nation. The law, which goes into effect on July 1, allows them to form "civil unions," the legal equivalent of heterosexual marriage. Governor Howard Dean signed it into law the next day.
While falling short of legalizing gay marriage outright, the state supreme court decision and the law that followed are a landmark victory in the decades-long nationwide struggle for legal recognition of gay relationships, a struggle that recently saw similar supreme court decisions in Alaska and Hawaii undone by state constitutional amendments.
The Vermont legislation signals a sea change in American cultural politics. For the first time, the seemingly unstoppable antigay political juggernaut was halted -- by a group of unlikely combatants in a rural state.
I step over the yard toys and around the cross-country skis to reach the front door of the clapboard house on the shore of Lake Champlain. Inside, I find a household scene that could be anywhere in America. A mother bounces a baby boy on her knee. Winnie-the-Pooh books lie in a pile on top of the newspapers. It is dinnertime, and as in homes all around the country, one parent finally gets relief when the other arrives from work to scoop up their young son in a playful hug. He smiles back and forth between the adoring faces of his parents: Nina Beck, the mother who bore him and nurses him, and Stacey Jolles, his other mom.
"We believe strongly in family values," declares Jolles, a psychologist at a local nonprofit counseling center. She adds, "We believe kids should be raised by two parents whenever possible." Beck, 44, and Jolles, 42, are one of three couples who sued the state of Vermont in July 1997 when their application for a marriage license was denied by their town clerk -- the case that reached the state supreme court as Baker v. Vermont. Nina, Stacey, and Seth, their second son, became the poster family for the gay marriage struggle, appearing frequently at the Vermont Statehouse during debates over the civil unions bill. Their photos often appeared on the front pages of Vermont newspapers.
Beck and Jolles met in 1989 while living in the San Francisco Bay Area, where both were teaching martial arts. In 1991, Nina asked Stacey to marry her, and they had "a traditional Jewish wedding" the following year. In 1994, the couple moved to North Carolina, where they hoped to have a child and raise it in a supportive community. But in the eyes of the law, they remained strangers. This legal limbo became a frightening liability when Beck -- pregnant by a sperm donor -- was rushed to a hospital due to complications during childbirth.
"They stopped me in the emergency room and asked, 'What are you doing here?' They weren't going to let me into the labor ward," recalls Jolles. She was lucky; she fumbled to produce legal papers showing that she had power of attorney and could make medical decisions for Beck and the child. "They were not going to let me in without those papers."
As new parents, Nina and Stacey realized that living in a legal netherworld placed their family in jeopardy: Stacey had no legal relationship with their new son, Noah. So they moved to Vermont in 1996, which three years earlier had become the first state to legalize second-parent adoptions, and Jolles formally adopted Noah. But that raised another issue: "Now the state says I'm fit enough to be a parent, but not fit enough to be a spouse. It makes no sense," says Jolles. (Nationwide, it is now estimated that there are between 6 and 14 million children with gay and lesbian parents.)
Soon after arriving in Vermont, Beck learned about the Vermont Freedom to Marry Task Force. The Task Force, established in 1995, was committed to attaining equal marital rights for gays and lesbians. Beck promptly contacted Susan Murray and Beth Robinson, both of whom are lesbians and members of the Task Force, and are attorneys with Langrock, Sperry and Wool in Middlebury, Vermont. The attorneys were blunt: If Beck and Jolles were plaintiffs in a lawsuit challenging the constitutionality of denying same-sex marriages, there would be depositions. Journalists. TV crews. Protesters. The public attacks were likely to be ugly and relentless.
The couple was undeterred. "Having children and deciding to be a lesbian parent was making a decision that I had to be totally comfortable in being out," recounts Beck. "So taking this next step was just an extension of that."
But Beck and Jolles missed the press conference on July 21, 1997, at which Murray, Robinson, and two other couples announced the lawsuit. During the week before the case was filed, Noah had fallen seriously ill as a result of a congenital heart defect. In late August, Noah, then two and a half years old, died.
Beck shows me family photographs from when Noah was alive: the three of them standing on a beach; Noah, with his mop of curly hair, cradled in Nina's arms, surrounded by the other two couples in the lawsuit. Tears well up in her eyes, and her voice wavers. "Working on the marriage suit helped us a lot after Noah died. We could talk about Noah and what he meant to us. A lot of the reason we got involved in the Freedom to Marry Task Force was for him. We wanted to give him the same protection as a heterosexual couple's child had."
In November 1999, Beck gave birth to their second son, Seth. One month later, the mothers and their new son were in front of the cameras, this time to speak about the success of Baker v. Vermont. Stacey Jolles says her children have given new meaning to her fight for marital rights. "This is about protecting Seth, who shouldn't be a second-class citizen because his parents are lesbians."
Why marry? The imperative to tie the knot has at least as much to do with legal and economic protection as with love. There are more than 300 privileges and responsibilities that accrue to married couples under state law in Vermont (and more than 1,000 under federal law, although these are not affected by Vermont's civil union law). State law typically grants married couples automatic inheritance rights; an automatic right to visit a partner in the hospital and make health care decisions; preference for becoming your partner's guardian if your partner is incapacitated; rights as a stepparent if your partner has a child; the right to buy and own property together; and when a partner dies, the right to bury or cremate.
Even when same-sex couples draw up legal documents to ensure that their intentions are respected, "there is a question whether those documents will be respected," explains Vermont attorney Susan Murray, who represents many gay and lesbian clients and, with her colleague Beth Robinson, argued the Baker case before the Vermont Supreme Court. "If you have a will leaving everything to your (heterosexual) partner, no one questions it. When you have a gay couple, there is often a presumption that the will was written under duress. So there is always the unnerving feeling that some family member or doctor who disapproves of your life will challenge your decisions."
The first lawsuit attempting to win same-sex marriage rights, Baker v. Nelson, was filed in Minnesota in 1971. Emboldened by the growing gay rights movement and a 1967 U.S. Supreme Court decision that tore down the final barriers to interracial marriage, gay activists in the 1970s believed that the time had finally come to win marriage rights. But same-sex marriage was still viewed by many as a pipe dream, explains attorney Mary Bonauto, civil rights director with Gay & Lesbian Advocates & Defenders (GLAD) in Boston, and co-counsel in the Baker v. Vermont suit. "These couples were treated derisively, and the cases were dismissed," she says.
For many gay couples, the impetus to secure marriage rights gained new urgency during the 1980s as a result of the AIDS crisis. "Suddenly, there were plenty of male couples who were lifelong partners who were being treated like strangers to each other at times when it counted, such as in medical emergencies," says Bonauto. "In cases when a partner would die and there was no will, biological family members could swoop in and clean out the place."
The 1980s also saw two court cases that exposed the legal vulnerability of gay and lesbian couples: The 1986 U.S. Supreme Court ruling in Bowers v. Hardwick affirmed a state's right to prosecute consenting adults for engaging in sodomy, thereby criminalizing some homosexual behavior. The second case arose in Minnesota, after a young woman named Sharon Kowalski was severely disabled in an accident. Her parents forbade her longtime lesbian partner, Karen Thompson, from visiting. It took Thompson five years to get legal visitation rights.
No nation presently allows gay and lesbian couples to legally wed. But a number of countries now grant many of the rights and benefits of marriage to gay couples. According to the Lambda Legal Defense and Education Fund, the countries that have begun to recognize a quasi-marital status known as "registered partnerships" are Denmark (in 1989), Norway (1993), Greenland (1994), Sweden (1995), Iceland (1996), the Netherlands (1998), and France (1999). These partnerships, however, do not allow same-sex couples to adopt unrelated children and are not intended to be recognized outside the country in which they are contracted.
The legalization of same-sex unions in this country would be the latest in a steady series of changes to marriage law. "Marriage has been a constantly evolving institution, and same-sex marriage is part of that evolution," asserts Nancy Cott, Woodward Professor of History and American Studies at Yale University and author of the forthcoming book, Public Vows: A History of Marriage and the Nation.
In the 1990s, gay and lesbian activists in the U.S. took their case for same-sex marriage to the courts. In 1993, the Hawaii Supreme Court ruled that it was unconstitutional to prevent gay and lesbian couples from obtaining marriage licenses. In 1998, an Alaska state court ruled that marriage was a fundamental right and that barring same-sex marriage amounted to sex discrimination. The Vermont ruling in December 1999 went the furthest, ruling that it was unconstitutional to deny legal rights to gays and lesbians, and ordering the state legislature to grant all rights and benefits of marriage to same-sex couples.
But the Religious Right has reacted fiercely to those victories, arguing that same-sex unions would weaken the moral fiber of society and threaten the institution of marriage. Christian activists have been showing in state after state that what has been won in the courts can be undone by well-funded public campaigns. On December 9, 1999, the Hawaii Supreme Court ruled that its decision legitimizing same-sex unions had been rendered moot after a bitterly contested constitutional amendment was passed that defined marriage as a union between a man and a woman. The Alaska court decision was similarly negated by a constitutional amendment approved by voters in 1998.
Vermont's antigay activists decided to adopt the same strategy. They reacted to the Baker decision by announcing that they would take their campaign against gay marriage to the people, seeking a constitutional amendment. But when national religious activists arrived in Vermont in January to do battle against "the homosexual agenda," they got a frigid reception.
The tall white steeple of the Cambridge United Church has been standing watch over the rural community of Cambridge, Vermont, for more than a century. The church graces the valley beneath Mount Mansfield, Vermont's highest peak, which glows pink in the afternoon light on the day that I visit. I find the Reverend Craig Bensen in the old brick house next to the church. Clad in chinos and a frayed brown turtleneck, the bearded clergyman extends a friendly greeting.
Bensen has been pastor of the Cambridge United Church for 23 years. He is also co-founder and vice president of Take It to the People (TIP), a group formed in 1997 to oppose the legalization of same-sex marriage in Vermont. So strongly does Bensen feel about the issue that he renounced his congregation's affiliation with the United Church of Christ, which he claims supports same-sex marriage. "Our congregation is about 98 percent solidly pro-traditional marriage and believes in no special rights for homosexual individuals," he asserts.
Bensen sits in a plush chair flanked by a rack of dog-eared newspapers. On the coffee table between us is an array of Christian literature, much of it dealing with homosexuality. Atop the piles are issues of Citizen, the monthly magazine of James Dobson's Focus on the Family, a right-wing political group based in Colorado Springs that has poured thousands of dollars into antigay initiatives around the country.
I ask Bensen how allowing gay and lesbian couples to marry or form domestic partnerships will affect heterosexual couples. He acknowledges that same-sex marriage may not affect individuals who are married, but it undermines the institution of marriage. He contends that same-sex marriage "removes any distinction for traditional marriage as the fundamental unit of society. And society will ultimately suffer because of that." He insists that "one man and one woman is the building block" of civilization.
"Gay unions given the status of law means that the state of Vermont says that motherless or fatherless families will not have an adverse effect on children." Jabbing the air with his finger, he declares, "That, from a developmental-psychology point of view, is a lie." He also believes that 90 percent of gay men were sexually abused as preadolescents. I ask if he feels that same-sex marriage is an issue of civil rights. He says dismissively, "Civil rights talk is political cover for politicians who don't want to listen to what people have to say."
It is the contention of Bensen and Take It to the People that changing the rules of marriage should be the subject of popular referendum, not judicial fiat. "Being cut out of the process makes the people angry," he warns. A February poll showed that Vermonters were about evenly divided on whether or not to allow gay couples to form "civil unions"; another poll in late April concluded that 52 percent of Vermonters opposed the new law, while 43 percent supported it. But Bensen and TIP are confident that if it were put on a ballot, voters would disapprove of civil unions. TIP, along with Vermont Catholic Bishop Kenneth Angell, suggested a constitutional amendment that would define marriage as being between one man and one woman -- thereby negating the Vermont Supreme Court ruling. The proposed amendment was killed in the state Senate in a 17-13 vote.
But Bensen remains cocky, and with good reason: The national backlash against same-sex marriage has been stunningly successful. According to the Human Rights Campaign, the largest gay and lesbian rights lobby, the roots of the current antigay effort date to early 1996, when leaders of the Religious Right met to devise a strategy to stop the drive for gay marriage. Groups including the Christian Coalition, Focus on the Family, and Gary Bauer's Family Research Council began cranking out literature, films, and media commentaries attacking gay marriage. President Clinton, hoping for election-year points for "family values," signed the Defense of Marriage Act (DOMA) shortly before Election Day in 1996.
Under federal law, DOMA now defines marriage as the legal union between a man and a woman. In the event that a state legalizes same-sex marriage, DOMA exempts other states from the constitutional requirement that the marriage be recognized across state lines -- which many legal scholars have written is patently discriminatory and unconstitutional. During the congressional debate on DOMA, civil rights veteran Rep. John Lewis, (D-Ga.), declared that the bill "should not be called the Defense of Marriage Act. It should be called the defense of mean-spirited bigots act." Only 65 House members and 14 senators voted against the bill.
In the wake of DOMA, a broad front of "family values" groups led by the Christian Coalition, and joined by the Mormon and Catholic churches, has been pursuing a state-by-state campaign to defeat gay marriage. Since the mid-1990s, 33 states have passed "mini-DOMAs" that forestall same-sex marriage. Already this year, new bills banning gay unions have been proposed in 13 states; so far, two of those initiatives have passed.
The most revealing window into the world of antigay activism was provided this spring in California. Proposition 22 stated that "only marriage between a man and a woman is valid or recognized in California." The measure's sponsor, state Senator William J. "Pete" Knight, was rebuked by his gay son for sponsoring the "hateful" and "cruel" legislation. Supporters of the Knight Initiative spent $10 million, while opponents spent $6 million. Among the top contributors in support of the Knight Initiative: the Mormon church (the Mormons also spent $1.1 million to win passage of the antigay constitutional amendments in Alaska and Hawaii), the Catholic Church, and millionaire Home Savings and Loan heir Howard Ahmanson Jr., who also bankrolls the extremist Vallecito, California-based Chalcedon Institute, which has advocated the death penalty for homosexuality. On March 7, the Knight Initiative passed, with 61 percent of Californians voting in favor of it.
In Vermont, though, national antigay activists have been confronted with a nettlesome problem: No one wants them. In January, activist Randall Terry, the fanatical leader of the antiabortion group Operation Rescue, arrived from New York to set up shop one block from the Statehouse. He vowed to derail the civil union legislation, or failing that, to fund and train candidates to defeat politicians who voted in favor of civil unions. But Vermont political leaders announced that only Vermonters would be allowed to testify at legislative hearings. It was classic Yankee politics. Vermont takes fierce pride in its "we'll take care of ourselves up here" attitude. So Terry was reduced to shouting himself hoarse at sparsely attended rallies on the snowy Statehouse steps. And in the face of repeated political rebuffs and defeats, he abruptly abandoned his promise to stay through November 2000 to elect antigay legislators. "We lost," he told reporters as he shut down his office on the day the state Senate approved the civil unions bill.
I ask Bensen what will happen if Take It to the People fails in its efforts to stop civil unions in Vermont. "It's not gonna happen," he comes back quickly. "This is the hottest thing that's hit the state of Vermont since the Civil War." The pastor wags his finger at me in hellfire preaching mode. "November 7 will be a public referendum on civil unions -- and everybody in the Vermont House and Senate knows that." Many legislators concede that their vote for civil unions may cost them their seat. But a Rutland Herald poll in April showed that only 25 percent of Vermonters say the civil union vote will be a major factor in how they vote in November.
What ultimately defanged the Religious Right was the insistence of Vermonters on refusing out-of-state money. Bensen, who concedes that "nobody wants to be tagged as taking from outsiders," estimates that total spending by all sides of the civil unions debate will total about $500,000 -- a pittance by national standards. Deprived of money, denied a forum, and stymied by intense political parochialism, the right-wing opposition was derailed in the Green Mountains. That left something unprecedented to occur in Vermont: The issue of gay rights was debated on its merits. In town after town in this state of 594,000 people, I watched as gays and lesbians, many of them coming out publicly for the first time, addressed their friends, families, and neighbors in public forums. Suddenly, homosexuality had a face, and it was a familiar one.
What happened in the Green Mountain State matters deeply in one crucial respect: Vermont broke the ice, and thus has reframed the discourse on gay rights. "Vermont has created a brand-new model for thinking about lesbian and gay relationships," asserts Matt Coles, director of the ACLU Lesbian and Gay Rights Project. "It's a model that tries and largely succeeds in responding to our pleas for equal treatment. I think we are going to see attempts in legislatures in other progressive states to take a look at adopting something like civil unions."
Evan Wolfson, director of the Marriage Project for the Lambda Legal Defense and Education Fund, insists that the Vermont law is more than a legal victory. "Vermont's example will show people that the sky does not fall when lesbian and gay men and their loved ones are included in the structure of law that protects families."
As Rep. William Lippert discovered, that process has already begun in Vermont. After an emotional appeal on the floor of the Vermont House in March that helped to win initial passage for the civil unions law, Lippert hurried over to Rep. William Fyfe, an 84-year-old former jail warden who is a Republican state representative from Newport City, a conservative working class town on the Canadian border. Fyfe's wife had gone into the hospital with pneumonia the previous day, and Fyfe himself was due to have surgery the following day. Nevertheless, he stayed for two days of debates to cast his vote for civil unions.
Lippert thanked Fyfe and stood awkwardly next to the old fellow. "Can I give you a hug?" he asked.
Fyfe looked nonplussed and replied, "Yeah, I don't give a shit." Lippert put his arm lightly around his colleague and smiled. I asked Fyfe why he had voted for the bill. He looked at me through his thick glasses and his eyes began to water. "Because he's one of my better friends here," he said, motioning to Lippert. "And there were two ladies who were my next- door neighbors for many years. . . ." He broke into a soft sob. "They were treated terrible. I'm just glad I could do somethin' to help."
Lippert squeezed Fyfe's shoulder to comfort him, "People can be cruel, Bill." said Lippert.
Speaking of the opponents of civil unions, Fyfe said, "I don't think my colleagues understand the problem. They live in their little kingdoms. If they lived in the real world a few days, they would understand."