Four and Counting

Tuesday, Vermont became the fourth state to legalize same-sex marriage and the first to do so via legislative, rather than judicial, action.

Big deal? Big deal. Civil unions, the not-quite legal equivalent of same-sex marriage, have been legal in Vermont since 2000. Since that happened, Massachusetts, Connecticut and Iowa (just this week!) legalized same-sex marriage. Civil unions are recognized in New Jersey and New Hampshire and same-sex marriage legislation is pending in New Jersey, New Hampshire, New York and Maine. The city council of the District of Columbia unanimously passed same-sex marriage legislation. California has had an on-again/off-again relationship with the issue.

On the other hand, 43 states have laws explicitly prohibiting same-sex marriage and 29 states have constitutional amendments defining marriage as a union between one man and one woman. The federal government has a law on the books – 1996’s Defense of Marriage Act – absolving states from recognizing same-sex marriages conducted in other states.

As you might expect, this type of thing is drenched in politics, law and history. First, the politics. The Vermont legislature passed its same-sex bill Monday. Republican Governor Jim Douglas had his veto message already written. He announced his veto before the state’s House of Representatives even took up the bill. Tuesday, the legislature overrode the veto – by one vote in the House. It was the first time Mr. Douglas has been overridden (and only the seventh time its happened to any Vermont governor).

Mr. Douglas – a consummate politician – got out there early with his opposition to the bill, a nice gesture for his conservative base. But he didn’t lobby Republican legislators on the override vote, something he has consistently done in the past. Sounds like he wants it both ways, not unusual for a politician confronting a divisive issue.

Jim Douglas has company. Bill Clinton (of the flexible spine) signed the Defense of Marriage Act, then (oops!) forgot to mention it at all in his memoirs. Barack Obama, campaigning for president, said he supports full repeal of the Defense of Marriage Act, then said he thinks marriage should be between one man and one woman.

As Mr. Lincoln said, a house divided against itself cannot stand, even if a politician divided against himself can. Forty-three to seven is a lopsided division, but those numbers will change. In the next decade, the division will look more like 35-15, with the 15 pro-same-sex marriage states representing as many citizens as the 35 opposed. Then, or sooner, it will go to the courts. When it gets to court, the issue will likely not be gender or one person’s morality versus another’s or even civil rights (although there are strong arguments to be made there), but contracts.

Marriage, at its root, is a contract between two parties. It has to do with money and property. (Divorce is the dissolution of said contracts.) The Constitution says contracts made in one state have to be honored in the other states. When states representing half the nation’s citizens recognize a certain contract and states representing the other half don’t, you’ve got a problem.

And it’s not as easy as counting right-left noses on the Supreme Court, either. Should the court rule that one kind of contract need not be honored nationwide, it opens the door for playing pick-and-choose with other types of contracts, not the kind of fire the right-leaning end of the court wants to play with.

All this, of course, reminds us of history and the last time our house was so divided. For a while we thought we could go along with some slave states and some free states. But what happens when a slave escapes to a free state? Is the free state required to apprehend and return that slave? That was a contract question that made it to the Supreme Court. The court gave the wrong answer, so we fought a war to get to the right answer.

Which is not to say we will fight four years of pitched battles over same-sex marriage. It is to say history will show there’s an enlightened side and an unenlightened side in this debate and it doesn’t take much thought to figure out which is which.

© Mark Floegel, 2009

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