The "Marriage" Amendment: Getting It Straight

April 16, 2000

Early in the 2000 legislative session Sen. Julius Canns introduced Proposal 6. This proposed constitutional amendment states that "Marriage is a special label for a partnership between one man and one woman." On reflection this language has proven to be inadequately worded to achieve its objective. As one critic put it, "it looks more like a copyright protection bill."

On April 11 the Senate Judiciary Committee proposed to the Senate to replace the original Proposal 6 language with a three-sentence amendment crafted by Sen. Vincent Illuzzi. The Committee majority, not including Illuzzi, does not advocate the adoption of the proposed language, but commendably felt that the Senate should have a chance to vote on a measure desired by so many Vermonters.

The first part of the proposed amendment states: "marriage is the legal union of one man and one woman." Adoption of this language would preclude the legislature from passing a bill to authorize gay marriage, or the Supreme Court from decreeing gay marriage. It would also rule out marriages of three or four people, polygamy, polyandry, and other such creative relationships. It would rule out same sex couples coming to Vermont, getting "married", and returning to their home states to challenge the federal Defense of Marriage Act (DOMA). This Act, signed by President Clinton in 1996, says that states are not bound to recognize the validity of marriage laws from other states. The gay and lesbian movement has been eager to have gay marriage legalized in one state, so gays can come to that state, get married, and return to their home states to file a case to challenge the legality of DOMA. Vermont has become the chosen state for this campaign.

The first part of the Illuzzi amendment would not, however, prevent the legislature from passing a "domestic partnership" bill to give certain benefits and privileges akin to those of marriage to gay couples or any other grouping of people. Nor would it prevent the Vermont Supreme Court from mandating a constitutional right of same sex couples to enjoy such benefits and privileges, as it did in the Baker case.

The second part states: "The general assembly shall define the legal benefits and responsibilities associated with marriage." This has always been the law and is not controversial.

The third part states: "No provision in this constitution shall be held to require that any such benefits and responsibilities be extended by the general assembly or the judiciary to any grouping of people other than one man and one woman." This sentence would overrule the Supreme Court's holding in Baker.

In that case the Supreme Court held that the "common benefits" clause of the Vermont Constitution requires that "all or most" of the benefits conferred by the legislature on opposite-sex married couples must also be conferred upon qualifying same-sex couples. The Court retained jurisdiction of the case to give the legislature time to respond, by passing either a gay marriage law or a "domestic partnership" law bestowing the benefits of marriage upon same sex couples.

"In the event that the benefits and protection in question are not statutorily granted," Chief Justice Amestoy wrote in Baker, "plaintiffs may petition this Court to order the remedy they originally sought", namely, gay marriage. The Court stopped short of holding that the gay plaintiffs had a constitutional right to get married, but the Justices made it plain that they will declare precisely that right if the legislature fails to pass a domestic partnership bill giving same-sex couples "all or most" of the benefits of marriage.

This was an extraordinary threat. In clear language the Court said to the legislature, "unless you give same sex couples all or most of the benefits of marriage, this Court will discover that the constitution contains an enforceable individual right of same sex couples to get married."

The third part of the Illuzzi amendment responds to this extraordinary judicial threat. It would take away from the Supreme Court the power to invent a constitutional right for same-sex couples or any other collection of partners to enjoy the benefits of marriage. But contrary to what certain Senators are reported as saying, adoption of this third part of the Illuzzi amendment places no limitations whatsoever on the legislature. The legislature would not face a constitutional mandate to do anything, but it might choose to confer all the benefits of marriage, or some, or none, on same-sex couples. It could pass a domestic partnership bill one year and amend or repeal it in another year. The purpose of the third part is to make it crystal clear that nothing in the Constitution requires the legislature to confer any marriage-type benefits on anybody. It would remove the Supreme Court's gun now at the legislature's head, and allow future legislatures to amend or adjust the benefit laws based on the political consensus of the time. Those Senators who favor gay marriage should of course vote No on any version of the amendment. Those senators who believe in traditional marriage and do not accept the Court's imaginative holding in the Baker case should vote Yes on the full Illuzzi amendment.

Some Senators are saying that they are willing to vote for the first part of Illuzzi's language, but not the third. If only the first sentence were to be adopted, neither the Supreme Court nor the legislature could confer the status of marriage on same sex couples. Such couples could not come to Vermont, get married, and go home to fight legal battles. But the Supreme Court's edict to the legislature that same sex couples have a constitutional right to all or most of the benefits of marriage would remain in force. If the legislature failed to adopt a domestic partnership law satisfactory to the Court, the Court could still decree those benefits, though not the actual status of "marriage".

The third part of the Illuzzi amendment is an attempt to rein in a Supreme Court which has exhibited an alarming tendency to manufacture imaginative constitutional rights out of thin air and dictate the actions of the general assembly. The third part has nothing to do with how many and which benefits the legislature ought to confer upon same-sex couples or other non-traditional groupings of people presenting themselves as "domestic partners". The legislature could bestow or withhold such benefits as it saw fit. The third part merely says what virtually all legal scholars believed as recently as 1998: that no Vermonter, homosexual or heterosexual, has any constitutional right to enjoy such benefits. Conferring or withholding any such benefits would remain the prerogative of the democratically elected general assembly, not the Supreme Court.