A few weeks ago, I noted that four states had legalized same-sex marriage. Since then, Maine has become the fifth state, New Hampshire and New York may join the trend within days or weeks.

There’s another moving trend that’s catching up to American’s reality: in the last two weeks, Minnesota and New Hampshire have become the 14th and 15th states to approve the medicinal use of marijuana.

We have a medical marijuana law here in Vermont. Just as was the case with same-sex civil unions, passing a law letting sick people smoke pot did not cause the walls to fall in. After getting a doctor’s prescription, people whose conditions would be improved by smoking (or eating) marijuana can register with the state and then possess two mature and seven immature plants. Still imperfect, the law does not describe a legal pathway to obtaining those plants, but still… progress.

(Yes, I hear the critics’ voices. “Sure, everyone runs down to a doctor feel-good and soon they’re all toking up.” There may be abuses of the system – any system of anything is susceptible to abuse – but after five years, there are fewer than 200 people enrolled in Vermont’s medical marijuana registry, suggesting that both patients and doctors take this seriously.)

Last week, California’s Republican Governor Arnold Schwarzenegger – while stopping short of advocating the legalization of marijuana – said it’s worth debating what legalization would mean in terms of saving money on law enforcement and prisons and enhanced revenues for state coffers (via a tax on legal marijuana). California’s Board of Equalization estimates that marijuana taxes could bring in $1.3 billion a year to the cash-strapped state.

Better still, if pot were legalized, maybe Americans could get some civil liberties back. Maybe police departments wouldn’t have the expense of flying helicopters over state forests, looking for plants and officers wouldn’t have to cruise through neighborhoods with heat-sensing devices, trying to find indoor growers. (And if those indoor growers could bring their plants out into the sunlight, think of all the electricity we’d save.)

Like same-sex marriage, the debate on marijuana use has to come out of the closet in America. I live in a college town and when I speak to college administrators privately – away from fear of sanction – they all say they would rather not have students use any mood or mind altering substances. They acknowledge, however, that mood alteration will occur and they would far rather see them smoke pot and sit around listening to music than have them drinking beer (the default option). The beer leads to fighting and medical and legal intervention and destroyed property. Many college-town cops will tell you the same thing.

“Just say no” doesn’t work and just because Nancy Reagan needed a “cause” 25 years ago is a poor reason to keep trying to enforce an asinine prohibition. President Obama, as I wrote, will not lead us into the future on this, but he may at least help bring us out of the past. A youthful toker himself, he’s said that he thinks marijuana should be decriminalized, although he leaves that decision to the states. Although federal laws regarding marijuana are still on the books, Attorney General Eric Holder has ordered the Justice Department to not prosecute marijuana use if it conforms to medical marijuana laws in states that have such statutes.

© Mark Floegel, 2009

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

Over in Montpelier, America’s smallest state capital, legislators – about to return after town meeting recess – are bogged down (as are their counterparts across the nation) trying to cut spending quickly enough to keep pace with the plummeting economy.

While walking, the Democratic-controlled bodies have signaled their intent to also chew gum. In this case, the gum is a bill to legalize same-sex marriage. Vermont has experience in this department.

In the much snowier winter of 2000, Vermont became the first state in the union to legalize same-sex civil unions. (No state had legalized gay marriage at the time.) We were inundated by partisans from both sides of the issue. The “anti” crowd predicted that if civil unions were made law, chaos would ensue, it would be the end of marriage as we’d known it, Vermont would turn into the new Sodom.

The law was passed; then-Governor Howard Dean (D) signed it behind closed doors. (Strange metaphor, Howard.) Then, people got hitched in something that was sort of, but not quite like, marriage. Chaos did not ensue. Marriage as we knew it did not end. Vermont is not new Sodom.

What did happen is Democrats lost control of the state house of representatives in 2002, thanks in part to anti-civil union backlash. Two years later, the backlash subsided and the Democrats took back the house.

In the years intervening, Massachusetts and Connecticut legalized same-sex marriage and California grapples mightily. Here in Vermont, the debate doesn’t exactly rage. There are, to be sure, opponents of same-sex marriage, but it seems the legislation will pass both deliberative bodies. Republican Governor Jim Douglas told an editorial board the other day that he sees no need to go beyond the existing civil union law – but he did not say he would veto the bill.

Mr. Douglas, whose wet finger is always in the political wind, will count votes when the bill passes. If he thinks a veto will be overridden, he will let the bill become law without his signature and Vermont will seep, rather than march, into the future. So be it.

Those who oppose same-sex marriage no longer predict doom will follow in its wake. Instead, we hear it might open the door to legalized polygamy. I don’t see that happening, for two reasons. One, although Vermont is the birthplace of both Joseph Smith and Brigham Young, there’s not a big constituency for polygamy. Second – and more important – same-sex marriage is good law and polygamous marriage is bad law.

The only real interest a state should have in the marriage is law and order, with the emphasis on order. The law has an interest in seeing all citizens treated equally, regardless of whom they choose to marry. The law has an interest in seeing the most interested party (a spouse) has the right to make medical or legal decisions for an incapacitated person. The law has an interest in the orderly transfer of property upon a person’s death.

For all those reasons, it makes sense to allow a person to marry another person, regardless of whether they are of the same or opposite sex (or anywhere in between). In the case of polygamy, well, you can see where it would tend to confuse legal issues.

The other argument to which the “anti” crowd has been reduced is that one man and one woman are the necessary ingredients for making children. While I agree stable families are in society’s best interest, I haven’t seen any evidence that same-sex parents are less stable than dual-sex parents.

Worse, if the only justification for marriage is the production of children, a notion that sounds very Middle Ages, then not only should same-sex marriage be illegal, but also marriage for post-menopausal women or women who have had tubal ligations or men who have had vasectomies or people who are just plain infertile.

The problem with grasping at straws is, you wind up with a handful of straw. Law and order; equality before the law. Think about it.

© 2009, Mark Floegel