In December, the Supreme Court of Vermont decided to provide a coda of sorts to the millennium just ending— and sent tremors through the ranks of conservative writers. The court decided that it was, on balance, a violation of the Constitution of Vermont to withhold from couples of the same sex the benefits that flow to married couples.
But the court did not think it proven that the laws on marriage had been animated by any intention to discriminate against women, lesbians, and gays in the way that other laws, in the past, had discriminated against blacks. The laws in Vermont were meant to secure marriage, or to establish marriage as the proper setting for sexuality, not to saddle people with disabilities. But just why legislators in the past bore such convictions—or whether those convictions were any longer defensible—the judges did not think they were in a position any longer to say.
Nevertheless, they recognized that it was portentous to install, on their own, a novel form of marriage. A move of that kind, they admitted, “may have unforeseen and disruptive, consequences.” They refused to hold then that the “plaintiffs are entitled to a marriage license.” The judges declared, instead, that “judicial authority is not ultimate authority,” and so they put back, in the hands of the legislature, the question of whether couples of the same sex might receive the benefits of marriage without having the union described as a “marriage.”
The decision in Vermont set off alarms in the community of conservatives, with broadsides fired off once more against “judicial activism.” But a closer look at the text of the decision yields a slightly different response: Yes, and yet no; it is not as bad as it appears—but it may be even worse.
The judges would no doubt bridle at the charge of judicial activism, but their surprise would only confirm just how deeply the premises of that activism have penetrated. For the judges may no longer even be aware of how much they have detached themselves from any constraints contained in the constitutional text, or in the principles of jurisprudence themselves. Consider what the judges offer earnestly as the ground of their judgment in this case—the so-called Common Benefits clause of the Vermont Constitution, which reads:
That government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community, and not for the particular emolument or advantage of any single person, family, or set of persons, who are a part only of that community.
The judges treat this clause as having the properties of the “universalizability” principle in ethics—or the notion of treating like cases equally. But people seasoned in the law should know that this clause can hardly rule out all discriminations as unjustified. Apparently, the laws in Vermont do not confer marriage licenses on couples composed of mothers and their natural sons or fathers and their daughters. These kinds of couples are treated “differently.” But so too are couples composed of a man and his horse. Are we to suppose that, on the face of things, the refusal to grant marriage licenses in these cases would violate the Common Benefits clause of the Vermont Constitution? But then, of course, why be so invidious as to confine these vast privileges to “couples”? Why must love be confined to clusters of two? Would the Common Benefits clause not be violated, quite as clearly, by the refusal to accord legitimacy to polygamous unions?
In the hands of the judges, the Common Benefits clause could be used to install any of these arrangements as a constitutional right—and then assign to the legislature the task of filling out the details. In effect, the use of the constitutional text in this way: (a) shifts legislative authority to the courts and (b) removes the sense of the constitution as a restraint on that legislative power. For the court confers on the legislature the power to remodel marriage and treat it as a mere construction or artifact of the positive law. And it is arguable that the people of Vermont never understood that they had conferred that kind of power on their legislature.
Still, this is not a matter of judges, from on high, imposing a novel policy on the people of Vermont and the legislators they have elected. One of the ironies in the case is that the judges were staying rather close to the public policies of Vermont. The state contended that the laws contained a marked preference for marriage as the framework for begetting or procreation. But the chief justice stood on quite tenable ground when he pointed out that the legislature had thoroughly undermined that claim. For over the years, in an expansive, liberal spirit, the legislature had made provision for the right of homosexual couples, and unmarried couples, to adopt children. In other words, the state had now registered the conviction that unmarried couples, of any sex or “orientation,” may be fully legitimate in the function of nurturing children. The state had waived any moral objection over homosexuality itself, or any doubts about the legitimacy of same- sex couples to engage in “parenting.” And so the refusal to grant the full standing of marriage could seem now merely as quibbling.
But even apart from the matter of raising children, the court seemed to be drawn, even more remarkably, to the act of conceiving children: “Increasing numbers of children are being conceived…through a variety of assisted- reproductive techniques… [and we find] thousands of lesbian mothers have chosen motherhood through donor insemination or adoption.”
Once again, as Russell Hittinger has pointed out, the case for gay rights becomes parasitic on the changes in the meaning of sex and marriage that have been brought about by the shifting tastes and demands of “straight” couples. The laws have interposed few objections as people engage in the technique of manufacturing, or “ordering” up children, as they might make and order other commodities. When it came to surrogate parenting, the laws, in different places, cast up objections to the renting of wombs or to a contract, in effect, to “deliver” a human being in exchange for money. Yet, the practice of manufacturing children, with impersonal donors of sperm, in conditions quite removed from the wedding of persons and bodies—all of this proceeds and flourishes with only a handful of moralists complaining on the sidelines.
But consider again the slide of equivalence, as begetting is removed, step by step, from sex and marriage: No objections are posed when these arrangements are pursued by married people; but then it appears invidious to deny unmarried women the satisfactions of bearing children. And in turn, it becomes harder to withhold that freedom from a woman engaged in a lesbian coupling. Couples of the same sex have gradually gained the legal standing to conceive, adopt, and raise children. How, then, could the state now turn around and deny the title of marriage when it seems to recognize the legal standing of homosexual couples to meet all of the functions that the state ascribes to marriage?
From this perspective, the judges can argue simply for parity, or the avoiding of tenuous discriminations, in the things that the legislature has already granted. But if that is the ground of the judgment, the legislature would have a wider range of choice than merely devising a form of domestic partnership for couples of the same sex.
Conceivably, it could rethink the whole matter: It could come to the judgment that begetting should not be manufacturing, that it should take place between a man and woman as part of their commitment to one another, and that it will not recognize the oxymoron of “unmarried committed parties.” If there is no marriage, there is no commitment that the parties are not free to quit when it no longer suits their convenience.
But to understand the temper of our times is to understand how deeply implausible it is that a legislature in Vermont would move itself to say these things. And it would bring home the fact that it is not the judges alone who have shaped these new laws, fitted to a different culture.
Still, there was a chilling overtone to an observation the judges made in passing: “[T]here is no doubt that the overwhelming majority of births today continue to result from natural conception between one man and one woman.” This form of begetting—this “natural conception”—is seen, in this passage, as merely a contingent thing, a convention that depends on the state of our current technology. Without exactly saying it, the judges make clear that there is no part of marriage that they see any longer as “natural,” as something that cannot be shaped or unmade by the positive law.
But if there is no natural ground for marriage, then the positive law could arrange marriage in any shape: There would be no barrier in principle to polygamous unions, and the refusal to honor the couplings of men and their favorite animals may be simply a lingering form of “speciesism,” that enduring prejudice to favor one’s own species over others.
The judges in Vermont apparently view themselves as craftsmen and cautious statesmen, but they seem to have little sense of the wildness they dress up now in the language of law.